New Employer Restrictions on Hiring Notices and Interviews Starting July 1, 2020

California law prohibits discrimination against applicants and employees for their membership in any protected class, including religious creed, disability and age (40+). The California Fair Employment and Housing Council (FEHC) has issued new regulations effective July 1, 2020, to better protect such individuals.

Advertisements. The new regulations prohibit practices that adversely impact applicants or employees age 40 or older, unless the practice is job-related and consistent with business necessity and no alternative practice could accomplish that business purpose with a lesser discriminatory impact.

With limited exceptions, employers are thus prohibited from using recruiting and advertising language that could reasonably be construed to deter or limit employment of anyone age 40 or older. Examples include: “digital native,” “young,” “college student,” “recent college graduate,” “boy,” or “girl” or any other terms implying a preference for younger employees.

Pre-employment inquiries. Inquiries regarding an applicant’s available work schedule “shall not be used to ascertain the applicant’s religious creed, disability, or medical condition” and must “clearly communicate that an employee need not disclose any scheduling restrictions based on legal protected grounds.”

Online application technology must not eliminate applicants based on their schedule unless “job-related and consistent with business necessity.” Online applications must include “a mechanism for the applicant to request an accommodation.”

Best Practices:

California employers should promptly update their websites, marketing materials, job applications, advertisements, and hiring forms and policies to meet the new requirements.

For example, when inquiring about work schedules, job advertisements, candidate application forms (online or physical copies), and job interviews must now include 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?”

Full compliance with these revised regulations should help prevent or promptly correct discriminatory practices.

See also:

• COVID-19 Specific Expansions to Our Model Employee Handbook and Forms (June 11, 2020)
• Abolishing Workplace Bigotry: A Work in Progress (March 5, 2020)
• Avoid Discriminatory Job Recruitment and Advertising (August 2, 2019)
• Unusual Job Interviews (May 9, 2019)
• Asking for Job Applicant Age is a No-No (August, 8, 2017)
• Job Interviewer Guidelines (June 9, 2016)

For more information please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

June 12, 2020