(1) FEHA Regulations Regarding Criminal History Background Checks Have Been Expanded. Effective October 1, 2023, the California Civil Rights Council issued revised regulations regarding criminal background checks in employment. Generally, the revised regulations require that employers begin using a new process, including a more in-depth analysis using new evaluation factors, before making adverse employment decisions based on criminal conviction history. Key highlights include:
- Expanded definition of “applicant” to include existing employees who have applied or indicated a specific desire to be considered for a different position, and existing employees who are subject to background checks because of a change in ownership, management, policy, or practice.
- Expanded definition of “employer” to include any direct and joint employer, any entity that evaluates the applicant’s conviction history on behalf of an employer or acts as an agent of any employer, directly or indirectly, any staffing agency, and any entity that selects, obtains, or is provided workers from a pool or availability list.
- New rules on job postings: Employers cannot include statements in job advertisements, postings, etc. that no persons with criminal history will be considered for hire.
- New restrictions on using information shared voluntarily: If an applicant raises their criminal history voluntarily prior to receiving a conditional offer, the employer cannot consider any information they would otherwise be prohibited from considering.
- Increased requirements for initial individualized assessment.
- Individualized assessment must be a “reasoned, evidence-based determination.”
- There are numerous examples of what might be included in consideration of each factor in the individualized assessment.
- Additional notice requirements: If, after conducting an initial individualized assessment, an employer makes a preliminary decision to disqualify an applicant, it must now give additional details in the notice to the applicant beyond what was previously required. It must now specifically inform the applicant of a long list of the types of evidence the applicant may present. Applicants continue to have five (5) business days after receipt of the notice to respond. The new regulations specify that if the notice is transmitted through email, the notice shall be deemed received by the applicant two (2) business days after it is sent.
- Consideration of Mitigating Circumstances: While employers were already required to consider evidence of rehabilitation and mitigating circumstances, the new regulations specify the factors the employer may consider in reassessing information submitted by the applicant before making final decision regarding whether to rescind the conditional offer of employment.
(2) A New Standard for Undue Hardship; Religious Accommodation. The U.S. Supreme Court in Groff v. DeJoy has “clarified” (and changed) the religious accommodation standard under Title VII of the Civil Rights Act that employers (and the Equal Employment Opportunity Commission (“EEOC”)) have relied upon for more than 46 years. Under the new standard, “‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.”
In doing so, the U.S. Supreme Court effectively dismantled the “de minimis” framework and created a new, and much higher, standard. For years, courts across the country have analyzed undue hardship by determining whether an employer would be required to “bear no more than a de minimis cost” if it granted an employee’s religious accommodation request. If more than a de minimis cost was required, then the request was deemed to cause an “undue hardship” on the employer’s business and the employer could lawfully deny the request.
With the ruling in Groff, however, the Supreme Court requires an employer seeking to deny religious accommodation requests to demonstrate that the “burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”
(3) The EEOC Published Updated (Proposed) Guidance on Harassment in the Workplace. On September 29, 2023, the EEOC issued proposed enforcement guidance on workplace harassment. The Proposed Enforcement Guidance on Harassment in the Workplace advises employers on handling new workplace realties, including LGBTQ rights, online misconduct, abortion, and a number of different types of harassment.
This new guidance is the first voted document the EEOC has issued on harassment since 1999. The EEOC’s new guidance responds to the changing workplace landscape and salient issues confronting employers as a result of the #MeToo movement, the COVID-19 pandemic, the overturning of Roe v. Wade, and the U.S. Supreme Court’s decision in Bostock v. Clayton County that sex discrimination includes bias on the basis of gender identity and sexual orientation. Some highlights include:
- LGBTQ Harassment: Sex discrimination includes sexual orientation and gender identity. For example, the guidance discusses misgendering as a type of actionable harassment, stating that refusing to use a name or pronoun “consistent with the individual’s gender identity” may constitute harassment. Another potential form of sex-based harassment is refusing to allow an employee to use a bathroom that matches their gender identity.
Take note: religious accommodations for employees with sincerely held religious beliefs do not include allowing an employee with such accommodations to create a hostile work environment for an LGBTQ co-worker. In other words, the obligation to accommodate an employee’s religious beliefs does not extend to religious beliefs that infringe on another employee’s protected category.
- Online Harassment: Conduct within a virtual work environment can contribute to a hostile work environment and employers may be liable for harassment occurring online, even if only over employees’ private social media accounts. If put on notice of the conduct, the employer may need to take remedial steps or disciplinary action against the offending employee for their non-workplace and non-worktime conduct. You may want to update your harassment policies to capture this risk to employees.
- Harassment Based on Reproductive Decision-Making: Sex-based harassment includes mistreatment based on an employee’s pregnancy and reproductive decisions, such as decisions about contraception or abortion. This is consistent with the EEOC’s longtime stance that terminating a pregnancy constitutes a pregnancy-related condition protected under the law. You will want to update your EEOC provisions to include this proscription.
In addition to updating your policies, train, train, train your managers on these topics.
(4) The EEOC Published Updated Guidance on Visual Disabilities. On July 26, 2023, the EEOC issued updated guidance, Visual Disabilities in the Workplace and the Americans with Disabilities Act, addressing how the Americans with Disabilities Act (“ADA”) applies to job applicants and employees with visual disabilities. The document outlines, among other things, when an employer may ask an applicant or employee questions about their vision, how an employer should treat voluntary disclosures about visual disabilities, and what types of reasonable accommodations applicants or employees with visual disabilities may need. Some highlights include:
- Generally, visual impairments are to be treated as the employer treats disabilities in the pre-employment process and during employment.
- Not everyone who wears ordinary glasses or contact lenses is an individual with a disability under the ADA. An individual who uses ordinary eyeglasses or contact lenses that are intended to fully correct their vision typically will not be covered under the ADA.
- An employer can only require an employee to take a vision test with uncorrected vision, or meet a vision standard with uncorrected vision, if that test or standard is job-related and consistent with business necessity.
- Employers must provide applicants with a reasonable accommodation during the application process (for example, application materials in larger font or braille), even if the employer believes that it will not be able to provide the applicant with a reasonable accommodation to perform the job for which the applicant is applying.
- The EEOC includes some examples of reasonable accommodations that could be provided to applicants or employees depending on their visual impairment and/or job functions.
- Employers must provide reasonable accommodations related to the terms, conditions and privileges of employment, including accommodations for access to the workplace itself, services, facilities, or portions of facilities to which all employees are granted access (i.e., employee break rooms, gyms, and cafeterias); access to information communicated or posted in the workplace; and the opportunity to participate in employer-sponsored trainings, programs, and/or social events.
(5) Retaliation Claims Now Presumed Unless Rebutted. There is now a rebuttable presumption of retaliation if an adverse action is taken against an employee within 90 days of filing or participating in a Labor Commissioner claim, filing or participating in a Fair Pay Act claim, engaging in lawful, off duty conduct, or other actions protected by the Labor Code. Notably, the employee has no burden of proof at the outset; they only need show protected activity and a subsequent adverse action. The employer then has the burden of rebutting the presumption.
(6) Business Entity Agents Can Be Directly Liable For FEHA Violations. The California Supreme Court in Raines v. U.S. Healthworks Medical Group clarified the meaning of the term "employer" in FEHA as it relates to business-entity agents: business-entity agents with at least five employees who carry out FEHA-regulated activities on behalf of an employer fall within the definition of “employer” and can be held directly liable for employment discrimination claims in appropriate circumstances.
In Raines, defendant U.S. Healthworks Medical Group contracted with numerous employers to conduct pre-employment medical screenings. The plaintiffs – applicants for jobs with an employer who contracted with U.S. Healthworks – alleged that U.S. Healthworks asked them inappropriate questions in connection with a pre-employment health screening, in violation of the FEHA. The California Supreme Court was asked to clarify whether state law allowed a third party acting on behalf of an employer to be held directly liable for FEHA violations.
The Raines Court concluded that business-entity agents who carry out FEHA-regulated activities on behalf of an employer can be held directly liable under the FEHA for employment discrimination in appropriate circumstances. Third-party agents fall within this defined scope if they oversee the hiring, firing and/or supervision of employees; make employee benefits decisions; administer employee benefits on behalf of employers; or carry out any of the other types of activities that are regulated under FEHA.
In other words, in appropriate circumstances employees can sue business-entity agents for employment discrimination and can recover damages from those business-entity agents. Notably, the Court declined to identify the specific “appropriate circumstances” in which a business-entity agent may be subject to direct liability and declined to express a view on the significance, if any, of employer control over the agent’s actions. The Court also did not address the specific facts of the Raines case or apply its holding to any factual circumstances.
Good times: future litigation will be needed to more precisely define the “appropriate circumstances.” In the meantime:
- Companies that act as business-entity agents by conducting FEHA-regulated activities should ensure their practices are FEHA compliant, and review their insurance coverages;
- Both business-entity agents and companies who hire business-entity agents should review their contracts to assess, among other things, how responsibility and control are defined, and whether to add or revise indemnification provisions.
