NHEH Publications

New California Regulations for Employers Concerning the Use of Criminal History Information and Transgender Rights

Once again, California employers must learn how to comply with new regulations.  Effective July 1, 2017, expanded employment discrimination regulations came into effect pursuant to California’s Fair Housing and Employment Act (“FEHA”).  These new regulations relate to an employer’s use of criminal history information in employment decisions and gender identity and gender discrimination in the workplace.[1] 

Gender Identity and Gender Expression

Employers are increasingly facing gender identity issues and situations in the workplace raising questions of best practices and compliance with anti-discrimination laws.  The new FEHA regulations reiterate existing protections on the basis of gender identity, gender expression and transgender status, but create new policy requirements for employers.  Below is a summary of these changes.

Employers must now honor an employee’s request to be identified by a preferred gender, name or pronoun, including gender neutral pronouns.  Employers may not discriminate against an applicant for failure to designate male or female on an application form.  Employers cannot impose a dress standard that is inconsistent with an employee’s gender identity or expression in the absence of a business necessity.  

“Transitioning” individuals and those perceived to be transitions are now explicitly protected from discrimination in employment.   Transitioning is defined 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.”   It may include name changes and pronoun usage, facility usage or undergoing surgeries, hormone therapy or other medical procedures. 

Employees also have the right to use the restroom or locker facility that corresponds to the employee’s gender identity or expression.  Employers cannot require employees to provide proof of any medical treatment procedure or demand any identity document to use facilities designated for use by a particular gender.

The new regulations also require employers with single occupancy facilities to use gender neutral signage such as “unisex” or “restroom”.  This conflicts with Cal-OSHA regulations requiring separate facilities for males and females for portable bathroom in industries such as agriculture.  In order to resolve this conflict, the Fair Employment and Housing Council has adopted an emergency rule, pending formal revision of the regulations, clarifying that the neutral signage requirements does not apply to portable bathrooms in industries requiring male/female signage on portable bathrooms.  However, employees may still use the facility corresponding to their chosen gender identity.

An employer is permitted to use an employee’s legal name as indicated in a government issued identification document only if it is necessary to meet a legally mandated obligation (e.g. federal tax reporting).  Nevertheless, the employer must identify the employee in accordance with the employee’s gender identity and preferred name.

Employers should review their policies and procedures to ensure compliance with these regulations.

Criminal History.

The FEHA regulations that went into effect in July 2017expand protections for job applicants and employees by further constricting the types of criminal histories an employer can consider. This will require new notice provisions for job applicants and   provide new ways for a job applicant or employee to argue that an employer’s consideration of criminal history has a disparate impact on a protected class of individuals. 

California law already limits employer use of criminal histories in employment decisions.  For example, arrests or detentions that did not result in convictions, most juvenile arrest and conviction histories and convictions that have been dismissed, sealed or expunged.  Existing law also provided limited exceptions to compliance, most notably where state or federal law prohibit individuals with certain criminal records from holding particular positions (e.g. peace officers, health facility staff, pharmacists).   

The new regulation states: “Employers are prohibited under the Act [FEHA] from utilizing other forms of criminal history in employment decisions if doing so would have an adverse impact on individuals on a basis enumerated in the Act that the employer cannot prove is job-related and consistent with business necessity or if the employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.”[2]  The regulations also provide complex guidance on how an employer establishes “job-related and consistent with business necessity” and how employees or applicants may establish “adverse impact” on a basis protect by FEHA. 

Employers using permissible criminal histories in employment decisions should first analyze whether it could demonstrate that its practice of using criminal history is both (1) job-related, and (2) consistent with business necessity.   Under the new regulations, even if the employer can meet these two criteria, the applicant or employee may still prevail against the employer by demonstrating a less discriminatory policy or practice was available. 

A non-felony conviction of marijuana possession that is more than two years old was added to the list of the types of criminal history that may not be considered by employers.

The new notice provisions also require an employer who learns of a conviction from a source other than the applicant or employee to inform that the applicant   that its decision not to hire was based on a conviction.  Prior to the new regulations employers were not required to disclose this reason. 

After notifying the employee or applicant that a rejection was based on a criminal conviction, the employer must provide a reasonable opportunity for the individual to present evidence that the information relied upon is inaccurate.  If the applicant or employee provides such evidence, the employer may not consider that information in the employment decision. 

Employers utilizing criminal histories in employment decisions should consult with knowledgeable legal counsel as these new regulations created a complicated scheme for compliance.

[1] California Code of Regulations, Title 2, Sections 11017, 11017.1, 11030, 11031, 11034.

[2] 2 CCR § 11017.1.

This article is intended to address topics of general interest and should not be construed as legal advice.
© 2017 Noland, Hamerly, Etienne & Hoss, Ana C. Toledo