Sec. 11079 - Advertisements, Pre-employment Inquiries, Interviews and Applications

ยง 11079. Advertisements, Pre-employment Inquiries, Interviews and Applications

(a) Advertisements. Unless age is a bona fide occupational qualification for the position at issue, advertisements for employment that a reasonable person would interpret as deterring or limiting employment of people age 40 and older are unlawful. (See section 11010(a) for the definition of bona fide occupational qualification.) Where there is no bona fide occupational qualification, examples of prohibited advertisements include those that designate a preferred applicant age range or that include terms such as young, college student, recent college graduate, boy, girl, or other terms that imply a preference for employees under the age of 40.

(b) Pre-employment Inquiries. Unless age is a bona fide occupational qualification for the position at issue, pre-employment inquiries that would result in the direct or indirect identification of persons on the basis of age are unlawful. Examples of prohibited inquiries are requests for age, date of birth, or graduation dates, except where age is a bona fide occupational qualification. This provision applies to oral and written inquiries and interviews. (See section 11016(b), which is applicable and incorporated by reference herein.) Pre-employment inquiries that result in the identification of persons on the basis of age shall not be unlawful when made for purposes of applicable reporting requirements or to maintain applicant flow data provided that the inquiries are made in a manner consistent with Section 11013 (and particularly subsection (b)) of Article 1.

(c) Applications. Unless age is a bona fide occupational qualification for the position at issue, it is discrimination on the basis of age for an employer or other covered entity to reject or refuse to provide equal consideration of the application form, pre-employment questionnaire, oral application, or the oral or written inquiry of an individual because the individual is age 40 or older. (See section 11016(c), which is applicable and incorporated by reference herein.)

(1) Subsection (c) prohibits the use of online job applications that require entry of age in order to access or complete an application, or the use of drop-down menus that contain age-based cut-off dates or utilize automated selection criteria or algorithms that have the effect of screening out applicants age 40 and older. Use of online application technology that limits or screens out older applicants is discriminatory unless age is a bona fide occupational qualification. (See section 11010(a).)

(1. Change without regulatory effect renumbering former section 7295.5 to new section 11079 and amending section filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40). 2. Amendment of section heading, section and Note filed 4-14-2020; operative 7-1-2020 (Register 2020, No. 16).)

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12940 and 12941, Government Code.

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