Following the lead of a handful of local ordinances around the country, including San Francisco and Los Angeles, the state’s Fair Employment and Housing Council (FEHC) is finalizing a regulation restricting California employers from using a person’s criminal history information in making employment decisions. The regulation will apply to applications for employment as well as decisions affecting existing employees.

State law does not list as a protected class individuals with criminal backgrounds. The FEHC bases the regulation on federal EEOC (Equal Employment Opportunity Commission) guidance and judicial cases that interpret it. The agency also explicitly incorporates principles of disparate impact discrimination into the regulation. This means that liability may attend if it is shown that members of a protected class have criminal histories disproportionate to their number, and thus applying a screen would disproportionately affect individuals in that class. The regulation includes a provision that makes is a rebuttable defense of a claim if an employer complies with other state and federal laws that require or allow such employment screening.

See CBA’s Regulatory Compliance Bulletin for more information.