California's Fair Employment and Housing Council recently finalizing new regulations that further limit state employers' ability to use criminal history when making employment decisions. The regulations, borrowing heavily from the EEOC’s 2012 Guidance, will be effective July 1, 2017.

The highlight of the new regulations is the prohibition of an employer from considering a job applicant’s or employee’s criminal history in making an employment decision if doing so would result in an adverse impact on individuals within a protected class, such as gender, race, and national origin. In order to succeed on a claim under these regulations, a job applicant must first prove that an employer’s background screening policy actually has an adverse impact on a protected class. Adverse impact can be proven by using conviction statistics or “other evidence” that establishes that a protected group is affected by the screening policy in a disproportionate manner, compared to other groups.

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