Employment Discrimination in the State of California

The Fair Chance Act is a California state law that recently went into effect on January 1, 2018. Under the Fair Chance Act, employers who operate within the state of California and employ more than five employees are prohibited from asking an applicant about their criminal conviction history prior to extending a job offer. Also known as a “Ban the Box” law, the Fair Chance Act was passed for the purposes of reducing “barriers to employment for individuals with 2 conviction histories because gainful employment is essential to these individuals supporting themselves and their families and to improving their community ties and mental health – all of which reduce recidivism”. To this end, the Fair Chance Act seeks to help California residents who have criminal convictions acquire employment by reducing the level of discrimination that said residents may face.

What are the requirements of employers within the state of California under the Fair Chance Act?

Under the Fair Chance Act, employers who operate within the state of California and employ more than five people are generally prohibited from engaging in any of the following actions:

• Including on a job application any questions about conviction history before a conditional job offer has been made.
• Asking about or considering the criminal history of a particular applicant before a conditional job offer has been made.
• Considering information about arrests not followed by conviction, participation in pretrial or posttrial diversion programs that have been completed and the underlying pending charges or conviction dismissed, sealed, or eradicated, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

After an employer has extended an offer of employment to a California applicant, they are permitted to conduct a criminal history check. However, in accordance with the Fair Chance Act, said criminal history check must be conducted by the means of an individualized assessment of an applicant’s criminal history. In other words, an employer must consider the nature and gravity of an applicant’s criminal history, the time that has passed since the conviction in question has occurred, and the nature of the job that the applicant is applying for prior to rescinding a job offer. Moreover, in instances where an employer decides to rescind a job offer, the Fair Chance Act also mandates that said employer inform the applicant in writing, provide a copy of any pertinent criminal conviction history that they relied upon to make the decision, and give the applicant at least five business days to respond to the decision.

Which employers are covered by the Fair Chance Act?

The Fair Chance Act applies to all employers operating within the state of California that employ more than five employees, whether they be public or private. “This includes union hiring halls, labor contractors, temporary employment agencies, and client employers”. Alternatively, “The law does not apply to certain positions at health care facilities, farm labor contractors, or positions with state criminal justice agencies. It also does not apply to any position where an employer is required by another law to conduct background checks or restrict employment based on criminal history”. However, while the hiring of such positions is exempt from the requirements of the Fair Chance Act, the use of criminal history may still be deemed as discriminatory “if it has an adverse impact on individuals in a protected basis (such as race)”. In such cases, employers are charged with proving that the “consideration of criminal history is job-related and consistent with business necessity”.

What can California residents do if they feel as though their rights have been violated under the Fair Chance Act?

In instances where a California resident feels as though they are being subjected to employment discrimination, they have the right to file a complaint with the Department of Fair Employment and Housing or DFEH for short. “The Fair Chance Act is part of California’s employment anti-discrimination statute called the Fair Employment and Housing Act”. To this point, residents of California can file a complaint with the DFEH through the Cal Civil Rights System. If the DFEH determines that employment discrimination has occurred, California residents are entitled to pursue a variety of remedies, including damages for emotional distress, front and back pay, punitive damages, and associated attorney costs and fees, among a host of others.

As discrimination and unconscious bias can occur in a variety of different forms, the Fair Chance Act seeks to ensure that California residents have the right to seek employment, irrespective of their previous criminal history. While people who have been convicted of crimes will undoubtedly face certain social stigmas, they have the right to seek employment after they have served their time or fulfilled any other related obligations that have been assigned to them. Despite the fact they these individuals have committed crimes in the past, they are still citizens of the U.S. and should not be discriminated against on the basis of their past.