The Fair Employment and Housing Council (Council) of the Department of Fair Employment and Housing proposes to amend section 11017 of Title 2 of the California Code of Regulations. Section 11017 outlines the components of the employee selection process during which members of a class protected by the FEHA may be illegally discriminated against. These components are selection, testing, placement, promotion, transfer, using criminal records, or height and weight standards.

The goal of the proposed amendments is to describe how consideration of criminal history in employment decisions may constitute a violation of the FEHA.

The Council proposes to clarify that business necessity, in addition to job-relatedness, is required if a policy or practice has an adverse impact on a protected class. Notably, the proposed amendments will articulate the following: (1) California employers are prohibited from using certain criminal background information in hiring, promotion, training, discipline and termination; (2) the concept of adverse impact; (3) how to prove adverse impact; (4) affirmative defenses of job relatedness and business necessity with respect to permitting or requiring consideration of criminal history; and (5) adverse impact’s less discriminatory alternative doctrine.

The Council held a public hearing on April 7, 2016, in Berkeley, California. Employers should expect final decisions from the Council shortly. For more details, go to www.dfeh.ca.gov.