July 11, 2017

New California Criminal History and Transgender Workplace Rules Effective July 1, 2017

The California Fair Employment & Housing Council recently issued two regulations – one in connection with use of an applicant’s or employee’s criminal history and another related to transgender discrimination.

Criminal History

The regulations reiterate various provisions of existing state law that prohibit employers from using very specific criminal history information in employment decisions (such as hiring, promotion or termination). However, the new regulation, which is applicable to employers with five or more California employees, prohibits employers from inquiring about past convictions if that inquiry has an “adverse impact” on an individual related to a basis protected by California’s anti-discrimination law (e.g., gender, race and national origin), unless, with limited exceptions, use of such information is job-related and consistent with business necessity.

The regulations provide standards and a complicated process that employers must follow if they consider criminal convictions in hiring. Employers may consider criminal history only if the industry or position clearly calls for disqualification (such as positions in which an individual is working, unsupervised, with the legally disadvantaged, or are given access to health, banking or other sensitive information) due to such history. In such cases, employers must conduct an “individualized assessment” of each conviction that may rule out an applicant.

Finally, the regulations provide that a “bright-line” policy that takes into account convictions seven years or older and creates a rebuttable presumption that the policy is not sufficiently tailored to be job-related and consistent with business necessity. Furthermore, if the employer obtains the criminal history information from a source other than the applicant, the employer must give the person notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate. If an individual does so, that information cannot be considered in the employment decision.

Transgender Discrimination

The regulations state that:

1) employers are prohibited from seeking proof of an applicant or employee’s sex, gender, or gender identity or expression (with limited exceptions);

2) employers must honor an employee’s request to be identified by a preferred gender, name or pronoun, including gender-neutral pronouns;

3) employers cannot impose any standards on physical appearance, grooming, or dress that are inconsistent with an applicant or employee’s gender identity or gender expression;

4) employers must permit employees to use facilities that correspond to their gender identity or gender expression, regardless of their assigned sex at birth; and

5) the definitions of gender expression, gender identity, and transgender, are expanded to include “transitioning” employees, which are specifically protected from discrimination (including those perceived to be transitioning).

“Transitioning” is defined in the regulations as a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth, and may include things like changes in name and pronoun usage, facility usage, undergoing hormone therapy, surgeries, or other medical procedures. 
Western Growers members doing business in California are encouraged to review their employment policies and practices to ensure compliance with the new regulations.

For more information, contact Jason Resnick at (949) 885-2253.