California law already prohibits employers from using certain criminal history in hiring, discipline, termination and other employment decisions. Employers are also generally prohibited from using criminal history if doing so would have an adverse impact on individuals because of a protected characteristic like race, gender or national origin. The California Department of Fair Employment and Housing has adopted regulations that make it even more difficult for employers to use an applicant’s or employee’s criminal history.
The regulations prohibit employers from considering, or seeking history about, an employee’s non-felony conviction for marijuana possession that is two or more years old unless otherwise permitted by law.
Prohibiting Reliance on Criminal History When There is an Adverse Impact
Employers are prohibited from considering criminal history if the applicant or employee proves that doing so will adversely impact them because of a protected characteristic. An applicant or employee may demonstrate adverse impact with conviction statistics. Under the regulations, state- or national-level statistics showing “substantial disparities” in conviction records of protected classes “are presumptively sufficient to establish an adverse impact.” An employer can overcome this presumption by showing different results are expected after accounting for circumstances such as the geographic area encompassed by the applicant or employee pool, the particular types of convictions being considered or the particular job at issue.
Defending Against an Adverse Impact
If a policy creates an adverse impact, the employer must show its policy is justifiable because it is job-related and consistent with business necessity. This means the policy must bear “a demonstrable relationship to successful performance on the job and in the workplace” and measure “the person's fitness for the specific position.” The policy must be “appropriately tailored,” taking into account at least: the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and/or completion of the sentence; and the nature of the job held or sought. Demonstrating that a policy of considering conviction history is appropriately tailored requires that an employer do one of the following: FULL ARTICLE