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 religious creed, disabilities, and medical conditions.  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 religious creed, disability, or medical conditions.

The regulations forbid employers from making pre-employment inquiries regarding scheduling information to ascertain an applicant’s religious creed, disability, or medical condition.  Any scheduling inquiry must clearly communicate that the applicant does not have to disclose scheduling restrictions based on legally protected grounds.  For example, scheduling questions should be phrased in 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?” or “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?”

These requirements apply to both manual and electronic job applications.  Online applications often screen out applicants based on their schedule availability, and thus may have a disparate impact on applicants based on their religious creed, disability, or medical condition.  This practice is unlawful unless job-related and consistent with business necessity.  Any online application technology must include a mechanism for the applicant to request an accommodation.

Further, pre-employment questions relating to applicants’ availability to work on evenings or weekends cannot be used to ascertain their religious creed, or to evade the requirement of reasonable accommodation, but these questions are permissible where reasonably related to the normal business requirements of the job in question and are otherwise in compliance with law.

Employers are still allowed to ask about the physical fitness, medical condition, physical condition, or medical history of applicants, so long as it otherwise complies with the law.

The new regulations can be found in the California Code of Regulations, title 2, sections 11016 and 11063.

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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.