Are You Asking Applicants When They Can’t Work? If So, You May Be Violating FEHA

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

While employers were busy dealing with a multitude of issues during the peak of the Covid-19 pandemic in the Spring of 2020, the California Department of Fair Employment and Housing (“DFEH”) quietly issued some amended regulations that employers should be aware of as they relate to employer interviewing and hiring practices. The regulations went into effect on July 1, 2020 and below are some of the highlights.

  1. Employers cannot seek information about an applicant’s religion or disability through certain pre-employment questions about the applicant’s availability for work. The regulations state expressly that:

Pre-employment inquiries regarding an applicant’s availability for work on certain days and times shall not be used to ascertain the applicant’s religious creed, disability, or medical condition. Such inquiries must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds, in language such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?” or “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?

  1. Likewise, an application for employment also cannot contain such questions. The regulations provide that:

“Schedule Information. An application’s request for information related to schedule and availability for work shall not be used to ascertain the applicant’s religious creed, disability, or medical condition. Such requests must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds in language such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?” or “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?

  1. Online applications which automatically disqualify applicants based on their availability for work may also be a problem. The regulations state that:

 “The use of online application technology that limits or screens out applicants based on their schedule may have a disparate impact on applicants based on their religious creed, disability, or medical condition. Such a practice is unlawful unless job-related and consistent with business necessity and the online application technology includes a mechanism for the applicant to request an accommodation.”

  1. Certain recruitment and job advertisements including technology, college-affiliation, and maximum experience requirements may give rise to age discrimination. The regulations provide:

“Examples of unlawful requirements include: a maximum experience limitation; a requirement that candidates be “digital natives” (individuals who grew up using technology from an early age); or a requirement that candidates maintain a college-affiliated email address.”

“Advertisements. Unless age is a bona fide occupational qualification for the position at issue, advertisements for employment that a reasonable person would interpret as deterring or limiting employment of people age 40 and older are unlawful. … Where there is no bona fide occupational qualification, examples of prohibited advertisements include those that designate a preferred applicant age range or that include terms such as young, college student, recent college graduate, boy, girl, or other terms that imply a preference for employees under the age of 40.”

  1. Likewise, certain oral or written pre-employment questions may give rise to age discrimination. The regulations state:

“Pre-employment Inquiries. Unless age is a bona fide occupational qualification for the position at issue, pre-employment inquiries that would result in the direct or indirect identification of persons on the basis of age are unlawful. Examples of prohibited inquiries are requests for age, date of birth, or graduation dates, except where age is a bona fide occupational qualification. This provision applies to oral and written inquiries and interviews.”

  1. Unless age is a bona fide occupational qualification for the position at issue, it is discrimination on the basis of age for an employer or other covered entity to reject or refuse to seriously and fairly provide equal consideration of the application form, pre-employment questionnaire, oral application, or the oral or written inquiry of an individual because such individual is age 40 or older. The regulations also provide that the law:

“…prohibits the use of online job applications that require entry of age in order to access or complete an application, or the use of drop-down menus that contain age-based cut-off dates or utilize automated selection criteria or algorithms that have the effect of screening out applicants age 40 and older. Use of online application technology that limits or screens out older applicants is discriminatory unless age is a bona fide occupational qualification. …”

 Under the regulations, the “bona fide occupational qualification (BFOQ)” affirmative defense is explained as follows:

“Where an employer or other covered entity has a practice that on its face excludes an entire group of individuals on a basis enumerated in the Act (e.g., all women or all individuals with lower back defects), the employer or other covered entity must prove that the practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined.”

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Based on these updated regulations, employers should review and update their recruiting and hiring materials and also ensure that hiring personnel are properly trained so as to comply with the FEHA regulations.  The Labor & Employment attorneys at Weintraub Tobin have years of experience counseling employers in all areas of employment law compliance.  Feel free to reach out to one of them if you need assistance in evaluating your recruiting and hiring practices.  Stay safe out there.