California Governor Jerry Brown recently signed into law two bills that will become effective on January 1, 2013. Both bills, AB 1964 and AB 2343, place heightened responsibilities on California employers. AB 1964 codifies existing California interpretations of religious discrimination into law. California's Fair Employment and Housing Act (FEHA) will be amended to explicitly state that religious dress and grooming practices are protected from discrimination. AB 2343 creates new disclosure requirements for employers who receive summaries of criminal history information directly from California's Department of Justice.
AB 1964: CLARIFYING FEHA'S DEFINITION OF "RELIGIOUS CREED"
FEHA regulates employment discrimination based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age or sexual orientation. Generally, these protected groups have been broadly construed by California courts and could implicitly include the protection of individuals' religious dress and grooming practices, such as the wearing of hijabs or yarmulkes.
As of January 1, 2013, FEHA's definition of "religious creed" will be amended to explicitly include "religious dress practice" and "religious grooming practice." "Religious dress practice" includes the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed, while "religious grooming practice" includes all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed. The bill specifically states that the terms "religious dress" and "grooming practices" should be broadly construed.
With certain limited exceptions, employers subject to FEHA must reasonably accommodate an individual's religious creed. AB 1964 makes it clear that an action that segregates or hides an individual, either from other employees or the public, because of that individual's religious dress or grooming practices is not a reasonable accommodation of an employee's religious dress or grooming practices.
AB 2343: NEW DISCLOSURE REQUIREMENTS FOR RECIPIENTS OF SUMMARY CRIMINAL HISTORY INFORMATION
As of January 1, 2013, AB 2343 will require any entity or individual that receives "[s]tate summary criminal history information" or subsequent arrest notification information from the California Department of Justice to expeditiously provide a copy of the information to the person to whom the information relates if the information is a basis for an adverse employment, licensing or certification decision. "State summary criminal information," is a master record summary of information gathered by California's attorney general pertaining to the identification and criminal history of any person (such as the name, physical description, fingerprints, dates of arrests and charges against that person).
Under existing law, the California Department of Justice must furnish "[s]tate summary criminal history information," as well as subsequent arrest notifications, in response to requests from a specified list of authorized agencies, organizations and individuals that need the information to fulfill employment, certification or licensing duties, such as the employment of peace officers of the licensing of community care facilities.
While this new law applies only to specific information received from the California Department of Justice, employers may wish to review the criminal information they receive from all governmental and private agencies, as the federal Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act also contain regulations that apply to the disclosure and dissemination of criminal information.