Recognizing that the consideration of criminal history in employment decisions is a frequently misunderstood and rapidly evolving area of law, the California Fair Employment and Housing Council (FEHC) issued new regulations, which are effective on July 1. The regulations largely mirror the guidance set forth by the Equal Employment Opportunity Commission (EEOC) in its April 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”

Apart from other state laws that prohibit employers from using certain history when making employment decisions, the new regulations clarify when the use of criminal records is a violation of the California Fair Employment and Housing Act (FEHA). Employers are prohibited from utilizing criminal history in employment decisions if doing so would have an adverse impact on a protected class (such as gender, race, and national origin), unless the employer can demonstrate that its policy or practice is job-related and consistent with business necessity. Even if an employer can make this demonstration, however, the employee or applicant can challenge the policy or practice by showing that there is a less discriminatory alternative means of achieving the specific business need as effectively.

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