June 1, 2020

On July 1, 2020, new regulations promulgated by the California Fair Employment and Housing Council go into effect relating to pre-employment practices and inquiries regarding age discrimination.  These regulations clarify what kinds of pre-employment practices (such as pre-employment inquiries, job applications, and advertisements) constitute employment discrimination, and are meant to address the concerns that certain pre-employment practices may be used to screen out applicants based on age (those 40 or older).

The regulations forbid employers from making pre-employment inquiries about an applicant’s age, date of birth, or graduation date, unless age is a bonafide occupational qualification (something that relates to an essential job duty and is considered necessary for operation of the business).  The regulations also prohibit online applications that require applicants to enter their age to access or complete the application, use drop-down menus containing age-based cut-off dates, or utilize automated selection criteria or algorithms that have the effect of screening out applicants age 40 and older, unless age is a bonafide occupational qualification.

There are also restrictions on age-based recruiting and advertising.  For instance, employers cannot impose a maximum experience limitation, a requirement that candidates be “digital natives” (i.e., individuals who grew up using technology from an early age), or a requirement that candidates maintain a college-affiliated email address.  It is still permissible for employers to participate in established recruitment programs with high schools, colleges, universities, and trade schools, and to utilize temporary hiring programs directed at youth, even though such programs traditionally provide disproportionately few applicants who are age 40 and over, but these recruitment and temporary programs cannot be used to evade the prohibition against age discrimination.

Unless age is a bonafide occupational qualification for the position at issue, advertisements for employment that a reasonable person would interpret as deterring or limiting employment of people age 40 and older are unlawful.  Examples of unlawful advertisements include those that designate a preferred applicant age range or include terms such as “young,” “college student,” “recent college graduate,” “boy,” “girl,” or other terms that imply a preference for employees under the age of 40.

There is a presumption of age discrimination when a practice has an adverse impact on an applicant or employee age 40 or older, even if the practice is facially neutral and does not specifically target older workers.  Employers can overcome this presumption by showing the practice is job-related and consistent with business necessity.  If salary reductions or layoffs have an adverse impact on employees 40 or older, however, an employer’s preference to retain lower paid workers, alone, is not sufficient to negate the presumption.  Even if such practices are job-related and consistent with business necessity, they are impermissible if an alternative practice could have accomplished the business purpose equally well with a lesser discriminatory impact.

The new regulations can be found in the California Code of Regulations, title 2, sections 11075, 11076, 11078, and 11079.

If you believe you have been discriminated against because of your age in your job search efforts, Eskridge Law can help.

If you are an employer who wants to make sure your hiring policies comply with the law, Eskridge Law is available to assist you.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.