United States: FEHC Proposed Criminal History Regulations Put Employers In Hot Seat

Last Updated: May 18 2016
Article by Kate Svinarich

Seyfarth Synopsis: The Fair Employment and Housing Council is vetting proposed regulations to prevent employers from discriminating against applicants or employees with criminal histories. Our colleague Kate Svinarich attended a recent public hearing and filed this report. And stay tuned for a later dispatch, featuring proposed regulations on Transgender Identity and Expression, which the FEHC considered at the same meeting.  

The California FEHC appears to want to make it easier for applicants and employees with criminal histories to sue for violations of the Fair Employment and Housing Act. On April 7, 2016, the FEHC met in Oakland to hear significant public comment from advocacy groups and the formerly incarcerated about Proposed Regulations Concerning the Use of Criminal History in Employment Decisions.

The proposed regs largely incorporate federal case law and EEOC guidance holding that the use of criminal history in employment decisions (including hiring) can constitute "disparate impact" discrimination against protected groups. Promulgating the proposed regs would be consistent with the Department of Fair Employment and Housing's increased enforcement efforts to deter discrimination based on criminal records checks (see our previous blog on the subject of "Handling Applicant Criminal Records to Avoid Disability Discrimination Claims").

The stated objective of the proposed regs is to describe how use of criminal history in employment decisions may violate the FEHA if it has an adverse impact on applicants or employees based on a FEHA-protected category (race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military or veteran status).

Two important clarifications. The proposed criminal history regs make two important clarifications to existing California law:    

Adverse impact. The proposed regs say that, under the FEHA, "adverse impact" is synonymous with "disparate impact" as defined by the federal EEOC: even though a policy or practice is neutral on its face, it can still have discriminatory impact if it adversely affects the employment opportunities of a protected class. Historically, categorical use of rules regarding criminal history (e.g., we will not hire anyone who has ever been convicted of any crime) may result in adverse impact based on, for example, race, color, or national origin.

Business necessity. The proposed changes also clarify that business necessity, as well as job-relatedness, is necessary to justify a policy or practice that has an adverse impact on a protected class. Although this is no change from existing law, the proposed regulations spell out that employers, to avoid liability, must consider each applicant or employee with a criminal history individually, as well as the nature and gravity of the offense, the time that has passed since the offense, when the individual completed their sentence, and the nature of the job held or sought.

Additional Obstacles to Avoiding Liability. The proposed regs would place a few more potential stumbling blocks in the path of employers than already exist by virtue of the current federal and state guidelines:

Plaintiffs could establish a prima facie case of discrimination relying on statewide evidence correlating protected characteristics, criminal history, and failure to hire. A representative for the California Employment Lawyers Association (a group of plaintiffs' lawyers) advocated for—and the FEHC was inclined to include in the regs—provisions that would allow a plaintiff to meet the initial burden of proving discrimination based on statewide statistics, rather than on local, regional, or industry-specific statistics. Given the stark statistics correlating protected characteristics, criminal history, and employment, the plaintiff's burden would likely be easily met.

Employers may be required to inform an applicant of the reason for an adverse decision by written correspondence and provide an opportunity to respond. As advocated by the National Employment Law Project, the FEHC was inclined to strengthen portions of the proposed regulations requiring employers to make individual evaluations of candidates with criminal histories by notifying individuals of the conviction that disqualified them from a position of employment, and by providing them with a reasonable opportunity for that person to respond with evidence of a factually incorrect record, with evidence of significant rehabilitation, or with evidence of other indicators that recidivism is unlikely. If the employee were to establish that the record was factually incorrect, then that record could not be used in the employment decision.

Employers with a "bright line" policy that disqualifies candidates with a criminal history or certain type of conviction would be presumed to have violated the FEHA. The proposed regulations also would likely hamper an employer's ability to rely on any "bright line" rule about the qualifications of candidates and employees with criminal histories. Such a "bright line" rule presumptively would not be considered "job related" or "consistent with business necessity," and would therefore be considered unlawful. To avoid liability, the employer would then need to prove that its policy can properly distinguish candidates who "do and do not pose an unacceptable level of risk" and that the convictions "have a direct and specific negative bearing" on the applicant's ability to perform the position's job duties.

These new regulations are not yet in effect. It seems likely that the FEHC will adopt its final regulations regarding criminal history at its next meeting, on June 27, 2016. In light of these new proposals and the DFEH's more proactive enforcement efforts, employers should reevaluate any practice that uses criminal history as a disqualification from employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions