United States: California Employers Will Soon See New Workplace Regulations Take Effect

Last Updated: June 21 2017
Article by Benjamin M. Ebbink

Rules On Transgender Discrimination And Criminal History Use Will Be Effective July 1

In recent months, the California Fair Employment and Housing Council (FEHC) has finalized two new sets of regulations that will both go into effect on July 1, 2017. California employers should pay close attention to these new rules touching on criminal history use and transgender discrimination; you may need to adjust your policies and practices for compliance in the very near future.

New Regulations On Use Of Criminal History Information

The FEHC approved proposed regulations related to employer use of criminal history information in January. On the one hand, the regulations reiterate various provisions of existing state law that prohibit employers from using very specific criminal history information in employment decisions (such as hiring, promotion, or termination). However, once the regulations take effect, you may not consider any non-felony misdemeanor conviction related to marijuana possession that is more than two years old (rather than the current list of only specified misdemeanors). In addition, the regulations also add significant new language prohibiting you from using criminal history information that has an "adverse impact" on employees based on protected category (such as gender, race and national origin), unless use of such information is job-related and consistent with business necessity.

The regulations also set forth new standards that must be met and a complex procedural process that must be followed when considering criminal convictions in hiring, with most of the burden falling on employers to satisfy certain requirements of the law.

> Adverse Impact

The regulations largely echo federal cases and a 2012 informal guidance issued by the federal Equal Employment Opportunity Commission (EEOC) that state that use of criminal history may have a "disparate impact" on individuals in protected classifications. The FEHC regulations use the term "adverse impact," but provide that this term means the same as "disparate impact" as used by the EEOC.

While the applicant or employee bears the initial burden of proving an adverse impact, the regulations state that this may be done through the use of conviction statistics or other evidence. The regulations specifically provide that state or national-level statistics that show a substantial disparity are presumed to be sufficient to establish an adverse impact. Given the widespread availability of data correlating criminal history, employment, and protected categories, it would be relatively easy to meet this burden of proof. Employers could overcome this presumption by showing there is reason to expect a markedly different result based on things like geographic area, the particular criminal conviction at issue, or the particular job at issue.

Employer groups that opposed the FEHC regulations objected strenuously that there is absolutely no legal authority or support to establish a presumption of adverse impact based on national or state statistics. Even the EEOC guidance upon which these regulations are purportedly based did not create such a presumption, instead merely stating that national statistics are only one factor among many that the EEOC will consider in deciding whether to conduct an investigation. Nevertheless, California employers will soon be faced with the responsibility to comply with these regulations.

> Employer Rebuttal: Job-Related And Business Necessity

Once the employee establishes that an adverse impact exists (which, as described above, is not a heavy lift), the burden shifts to the employer to prove that the use of the criminal history information is nonetheless justifiable because it is job-related and consistent with a business necessity. In order to do so, employers must show that the use of criminal history information is appropriately tailored, taking into account the following factors:

  • 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.

In order for an employer to demonstrate that a policy or practice of considering conviction history is appropriately tailored for the job for which it is used as an evaluation factor, the regulations require employers to either:

  • Show that any "bright-line" conviction disqualification policy can properly distinguish candidates who do and do not pose an unacceptable level of risk and that the convictions have a direct and specific negative bearing on the person's ability to perform the duties of the position; or
  • Conduct an individualized assessment of the applicant or employee, including providing notice that the person has been screened out because of a criminal conviction. The individual must be provided a reasonable opportunity to demonstrate that the exclusion should not apply in that specific case. The employer, in turn, must consider whether this additional information warrants an exception to the exclusion.

Moreover, the regulations provide that a "bright-line" policy that takes into account convictions that are seven or more years old creates a rebuttable presumption that such a policy is not sufficiently tailored to be job-related and consistent with business necessity. In addition, the regulations state that regardless of whether the employer has a "bright-line" policy or completes an individual assessment, if the employer obtains the criminal history information from a source other than the applicant, the employer must give the person notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate. If the individual does so, that information cannot be considered in the employment decision.

> The Employee's Last Bite At The Apple: Less Discriminatory Alternative

Even after the employer does all of that, the employee still gets one final shot at proving a violation of the law. The regulations provide that, even if an employer shows that the use of conviction information is job-related and consistent with business necessity, the employee can still establish a violation of law by demonstrating that there is a less discriminatory alternative that serves the employer's goals. This could include a more narrowly targeted list of convictions, or another form of inquiry that evaluates job qualifications or risk as accurately without significantly increasing the cost or burden on the employer.

All of this adds up to a complicated series of obligations and procedures you must soon follow when considering criminal convictions in the hiring process, for which any misstep can give rise to litigation.

> Big Year For "Ban The Box" Movement

This likely will not be the end of legislative or regulatory involvement in the use of criminal history information by employers. Many state and local governments (including San Francisco and Los Angeles) have adopted "ban the box" measures that require private employers to remove questions or "boxes" about criminal history from job applications and reserve those inquiries for later in the decision-making process. Therefore, you should always be mindful of local ordinances with which you must comply, in addition to state statute or regulations.

Under legislation enacted in 2014 (AB 218), state or local agency employers are already subject to such "ban the box" restrictions. Labor Code section 432.9 prohibits these public employers from asking about conviction history until the employer has determined that the applicant meets the minimum employment qualifications as stated in the notice for position. And there is pending legislation in Sacramento – AB 1008 (McCarty) – that seeks to impose a version of the Los Angeles ban the box ordinance on all private and public employers throughout the State of California. It would prohibit inquiries into criminal history until after a conditional offer of employment has been made. AB 1008 has already passed the Assembly and is now pending in the Senate; we will keep you posted as developments warrant.

New Regulations On Transgender Identity And Expression

Several weeks ago the Office of Administrative Law also approved regulations related to transgender identity and expression promulgated by the FEHC, which also go into effect on July 1, 2017. As formal regulations, these rules represent a more formal follow-up to guidance on transgender employees' rights (entitled "Transgender Rights in the Workplace") issued by the Department of Fair Employment and Housing last year.

These regulations represent the latest effort in a movement to expand the scope and applicability of California's employment discrimination statute, the Fair Employment and Housing Act (FEHA). In 1999, the California Legislature amended FEHA to prohibit discrimination in employment and housing on the basis of "sexual orientation." Four years later, the definition of "sex" in FEHA was expanded to include discrimination on the basis of a person's gender identity or gender-related appearance and behavior. The Legislature further amended FEHA in 2011 to expressly enumerate "gender identity" and "gender expression" as protected classes. You should be aware of the following major provisions of the new regulations.

> Expanded And New Definitions Of Terms

The regulations broaden the existing definitions of the terms "gender expression" and "gender identity," most notably to include the "perception" of an individual's gender expression or gender identity. In addition, the regulations add a new definition of "transitioning" to mean a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.

> Use Of Preferred Gender Name

The regulations provide that, if an employee requests to be identified with a preferred gender, name, or pronoun (including gender-neutral pronouns), an employer who fails to abide by the employee's stated preference may be liable under FEHA. Moreover, the new regulations state that you are permitted to use an employee's assigned sex at birth or legal name as indicated in a government-issued identification only as necessary to meet a legally-mandated obligation, but otherwise must identify the employee in accordance with their gender identity and preferred name.

> Grooming And Dress Standards

The new regulations prohibit you from imposing any grooming or dress standards which are inconsistent with an individual's gender identity or gender expression, unless you can establish a business necessity.

> Use of Facilities

The new regulations require you to permit employees to use facilities (such as restrooms, locker rooms, and similar facilities) that correspond to the employee's gender identity or gender expression, regardless of the employee's assigned sex at birth. The regulations also provide that employees shall not be required to undergo, or provide proof of, any medical treatment or procedure, or provide any identity document, to use facilities designated for use by a particular gender. In addition, the regulations require those employers with single-occupancy facilities to use gender-neutral signage for those facilities, such as "Restroom," "Unisex," "Gender Neutral," or "All Gender Restroom."

> Unlawful Inquiries

The new regulations make it unlawful for you to inquire about or require documentation or proof of an individual's sex, gender, gender identity, or gender expression as a condition of employment. Moreover, inquiries that directly or indirectly identify an individual on the basis of sex, including gender, gender identity, or gender expression, are generally unlawful. However, you may ask an applicant to provide such information solely on a voluntary basis for specified recordkeeping purposes only as authorized under existing law.

In addition, the regulations provide that nothing precludes you from communicating about these issues with your employee when the employee initiates communication regarding working conditions.

> Discrimination Against "Transitioning" Employees

The regulations prohibit you from discriminating against an individual who is transitioning, has transitioned, or is perceived to be transitioning. As discussed above, "transitioning" is defined in the regulations as a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth, and may include things like changes in name and pronoun usage, facility usage, undergoing hormone therapy, surgeries, or other medical procedures.


As noted above, these regulations will become effective in just a few short weeks, on July 1, 2017. If you conduct business in California, you should immediately review your policies and practices to ensure compliance with these requirements. For more information, contact your regular Fisher Phillips attorney, or one of the attorneys in any of our California offices:

Irvine: 949.851.2424

Los Angeles: 213.330.4500

Sacramento: 916.210.0400

San Diego: 858.597.9600

San Francisco: 415.490.9000

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Benjamin M. Ebbink
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.