Hiring Discrimination Law: What Criteria can California Employers Use?

Hiring Discrimination Law: What Criteria can California Employers Use?

Hiring discrimination concept

Not only do California employees have strong legal protections during the course of their actual employment, but in the screening and hiring phases as well. However, the application of these protections can vary from case to case. In fact, the standards that employers may use in selecting candidates for employment has been the subject of much case law — both on the state and federal levels. Accordingly, California hiring laws include specific criteria that may — and may not — be used by employers during the hiring process.

Hiring Discrimination Generally: No Discrimination Against a Protected Class

In California, the most important anti-discrimination laws in the workplace were adopted as part of the Fair Employment and Housing Act (FEHA). Under these California hiring laws, if an employer refuses to hire an applicant for certain reasons, they may have committed an unlawful recruitment practice.

Specifically, an employer is not permitted to discriminate against a candidate in the hiring process based on the following:

  • Race, skin, color, national origin, or ancestry
  • Religious creed
  • Physical or mental disability
  • Genetic information
  • Medical condition
  • Gender, sex, gender identity, or gender expression
  • Pregnancy or childbirth
  • Marital status
  • Age
  • Sexual orientation

California’s anti-discrimination laws apply to all aspects of the hiring process, including advertisements, applications, screening, and interviews. Employers might also commit discrimination if they work with an employment agency that they know uses unlawful discrimination practices.

Limited Exceptions for Essential Duties and Functions

In limited situations, employers are permitted to engage in what would otherwise be considered discriminatory conduct — such as when the “essential duties” exception applies. This narrow exception pertains to the hiring process if the prospective employee’s physical disability, mental disability, or medical condition renders them unable to perform the essential duties of the job.

An essential duty (sometimes called an essential function) is one that is fundamental to an employment position. In determining whether a job function is essential or marginal, courts will look at a variety of factors, including the employer’s judgment, advertisement descriptions for the position, time spent on the job performing those duties, and others.

Disparate Impact on a Protected Class in Hiring

Sometimes, an employer will attempt to avoid the rule in California hiring laws against discriminatory hiring by adopting standards that do not directly discriminate. Rather, disparate impact discrimination occurs when the regulations instituted by the employer have the ultimate effect of discrimination.

For example, a hiring employer might require that all job applicants have a science degree because the employer knows that science degrees are disproportionately held by males. But if the job has nothing to do with science, this requirement would appear to be hiring discrimination in all but name. While this kind of disparate impact discrimination is prohibited under both the California FEHA and federal law, the standards are slightly different.

Title VII of the Civil Rights Act of 1964, prohibits employers from using employment practices that result in a disparate impact on a specific class. A hiring standard may cause a disparate impact if the employer cannot show that the challenged practice is related to the position and is consistent with business necessity. Critically, the classes protected under federal law include only race, color, religion, sex, or national origin — California law offers broader protection and includes additional protected classes.

California hiring laws also prohibit employers from adopting practices that cause a disparate impact on a specific class, even if they are seemingly neutral. Unlike the language in the federal business-necessity test, California law requires that an employer show an overriding business purpose exists for the employment practice. This test requires the practice to be necessary for the safe and efficient operation of the business, as well as to fulfill the business purpose it is intended to serve.

Both federal law and California law also make a hiring practice unlawful if there are reasonably available alternatives that would accomplish the business purpose equally well with a lesser discriminatory impact.

English Proficiency as a Hiring Factor

There are very limited situations in which an employer can adopt an English-only policy under the California FEHA. English-only policies are presumptively unlawful unless they are justified by a business necessity, are narrowly tailored, and the employer has informed employees about the specific details of the policy. To demonstrate business necessity, the employer must show:

  • There is an overriding legitimate business purpose for the policy, such as the language restriction is necessary for the safe and efficient operation of the company;
  • The language restriction effectively fulfills the business purpose it is meant to serve;
  • No alternative would accomplish the business purpose equally well without a lesser discriminatory impact.

Employers are also prohibited from discriminating against applicants based on their accent or limited English skills unless there is a legitimate reason. The restrictions on English-only policies apply to the hiring process as well as employment.

Hiring Discrimination Against Veterans and Military Members

Veterans and members of the military have special employment protections under the California FEHA. Employers may not refuse to hire a person based on their veteran or military status. In fact, California law specifically allows hiring employers, as a right, to consider veteran or military status as a positive factor during the hiring process.

Spouses Working Together

Employers may not discriminate against job applicants based on marital status. Employers may also not make employment decisions based on whether an individual has a spouse presently employed by them. However, the law allows employers to regulate the department in which spouses work together and may refuse to place one spouse under the supervision of the other spouse.

Discrimination Based on Criminal History

The Fair Chance Act prohibits employers with five or more employees from asking questions about conviction history during an interview or on an application before a conditional job offer is made. An employer may also not consider information about the following during the hiring process:

  • Any arrest that did not result in a conviction
  • Participation in a completed diversion program for drug or alcohol treatment where the underlying charges were sealed or dismissed
  • A conviction that was sealed, dismissed, expunged, or statutorily eradicated

After a job offer has been made, an employer is permitted to conduct a criminal history check. However, an employer must make an individualized assessment based on (1) the nature and gravity of the criminal history, (2) the amount of time that has passed since the conviction, and (3) the nature of the employment. If your criminal history disqualifies you from employment, the employer must notify you in writing of their preliminary decision.

Contact an Attorney Who is Knowledgeable About California Hiring Discrimination Laws

If you’ve been the victim of hiring discrimination, you may be entitled to various remedies. But it’s critical to take action as soon as possible — there are strict statutes of limitation in place to commence a claim. An experienced employment law attorney can assess your case and discuss your legal options. The attorneys at Optimum Employment Lawyers provide competent counsel, skilled representation, and adept advocacy for hiring discrimination and a wide array of employment matters. Contact us at (949) 954-8181 to schedule a consultation.


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