Just how exacting an employer in California can be in setting the standards for its employees will be determined when a lawsuit filed Thursday by the State of California’s Civil Rights Department against the Ralphs grocery store chain goes to trial.
In that suit, the California Civil Rights Department maintains that Ralphs corporate executives went too far when it included questions about job candidates’ criminal histories on the company’s job applications and then utilized admissions of what the civil rights division deems “minor offenses” as the basis for screening out those would-be employees.
The lawsuit is poised to re-raise questions and resurrect controversy that accompanied the passage of the Fair Chance Act, Assembly Bill 1008, passed into law by the California Legislature and signed into law by then-Governor Jerry Brown in 2017.
The Fair Chance Act, authored by Assembly Member Kevin McCarty (D-Sacramento), was intended to to ensure that California residents with criminal convictions who are seeking employment are fairly considered for jobs. When it went into effect on January 1, 2018, it prohibited most California employers from inquiring about a job applicant’s criminal history as part of a job application and it further disallowed businesses from conducting background check on applicants until after a job offer was made to that specific individual.
An exception existed in the law if under another law or governmental regulation the employer was required to run a background check for the specific job applied for. The larges number of jobs given such specific exceptions were one in finance or requiring coordination with governmental agencies. In considering an applicant’s criminal history, employers are required, under the Fair Chance Act, to take into account various factors such as the nature and gravity of the offense, the time that passed since the offense or completion of the sentence, and the nature of the job sought.
There was, among certain industries or sectors, some reservation about the new law in 2018 and the governmental intrusion into the workplace. It was pointed out that for some companies, strict hiring standards had proven to be a critical element of their formula for success, that the standards had existed for a considerable length of time, indeed, decades in some cases; that the standards were drawn from governmental practices and standards, as the convictions themselves were imposed by the state government in the form of its penal code, passed by the legislature, and convictions handed down by its courts.
Under the law, an employer could make a “conditional offer” of employment and then carry out a background check, but only with the employee’s written permission. A legitimate question then applied as to whether the employer could terminate the employee for refusing to submit to the background check.
Under the act, employers cannot require an applicant to provide a specific type of evidence demonstrating rehabilitation, though applicants are free to provide evidence of rehabilitation or mitigating circumstances voluntarily at any time during the hiring process, extending to their conduct during incarceration, employment history since the conviction or sentence completion, community service, and other rehabilitative efforts. Applicants are also at liberty to disclose whether trauma, domestic or dating violence, sexual assault, stalking, human trafficking, duress, or other similar factors contributed to the offense or conduct. Further, applicants can identify if a disability, such as a past drug addiction or mental impairment, contributed to the offense or conduct. The applicant can also inform the prospective employer whether the likelihood of harm arising from similar conduct could be sufficiently diminished or eliminated by a reasonable accommodation made by the employer or whether the disability has been mitigated or eliminated by treatment. Employers cannot refuse to accept any evidence provided by the applicant. The act calls upon potential employers to “carefully evaluate” such information and give applicants a fair chance to demonstrate their qualifications and readiness for the role they are applying to assume.
Critics of the law asserted that employers should reasonably be allowed to know whether those they are to employ have been rehabilitated.
Employers with fewer than five employees were not subject to the Fair Chance Act.
Since 2018, the California Civil Rights Department has been inundated with thousands of complaints from job applicants who said they were subjected to unlawful questions. The department launched more that 300 investigations into alleged discrimination in which employers discriminated against potential employees based on their criminal history. In something like 70 of those, settlements were obtained.
Ralphs, which employs roughly 25,000 at its 185 stores and warehouses in California, was clearly subject to the law, according to the State of California. No settlement was reached with the company and the state filed what is the first lawsuit based on the act against it.
According to the lawsuit, Ralphs employment applicants were provided with a application in which they were asked to disclose their criminal history but told doing so was not required. Nevertheless, there were instructions relating to completing the portion of the application with instructions that were so involved the applicants were, essentially, fooled into responding or inveigled into responding against their will.
According to the suit, “The instructions provide detailed, superfluous instructions concerning how to report convictions, after telling applicants that they do not need to answer the question. Additionally, by suggesting specific convictions that should not be reported in California, the instructions necessarily suggest that other convictions should be reported.”
Between 2018 and 2022, more than 70 percent of Ralph’s applicants in California answered the questions relating to criminal history, according to the suit.
The grounds then used for denying employment were based on issues that had, or should have had, no bearing on the fitness of the applicants for the positions they wanted to work, according to the State of California Civil Rights Department. should Candidates “lost their job offers based on convictions for a single misdemeanor count of excessive noise,” according to the department. “Other applicants who had convictions from other states for simple cannabis possession were also disqualified.”
Ralphs uses an online application methodology that involves an electronic application which entails a format involving multiple question including those related to criminal history. It uses an evaluative algorithm that bypasses human or personalized assessment, selecting and/or rejecting applicants merely on a standardized scoring basis, which the California Civil Rights Division maintains is illegal.
The company further failed to make adequate disclosure to rejected applicants of its reason for denying them employment.
More than three out of four of those job applicants with Ralphs who had the job offers they had previously been extended rescinded were not given an opportunity or the means to contact the company to appeal the decision, as required under the Fair Chance Act. Those given contact information soon learned that the phone number they were provided terminated at a fax machine, according to the lawsuit.
Ralphs has done nothing to undo its denial of employment to hundreds of applicants on account of their di minimus and stale criminal histories, which under the law does not stand as sufficient reason to deny them employment, according to the lawsuit.
“These types of convictions, and hundreds more like them, do not bear any direct and adverse relationship with the duties of any job at a grocery store, including the grocery clerk positions that are the vast majority of the positions Ralphs denied on the basis of conviction history,” the lawsuit states.
“They were not legitimate grounds for a decision by Ralphs to withdraw a conditional offer that had already been made based on the applicant’s application and interview.”
Multiple candidates allegedly lost job offers based on convictions for a single misdemeanor count of excessive noise. Others who had convictions for simple cannabis possession in states where it remains illegal were also disqualified, according to the suit.
Ralphs has not made any statement in reaction to the lawsuit. That the Department of Civil Rights was moved to file suit rather than come to a settlement might be interpreted as an indication the company will opt to go to court and perhaps argue that it is within its rights to not want to employ pot smokers or those who have demonstrated themselves as discourteous enough toward their neighbors or fellow citizens as to disturb their tranquility. It is anticipated that Ralphs will, if it goes to court to defend against the suit, to employ whatever protocols or algorithms it has developed in conjunction with its business model in evaluating applicants for their future employment potential.
The lawsuit seeks from Ralphs monetary damages for applicants who were denied employment or lost hiring opportunities because of Ralphs’ policy. The department als wants Ralphs to be enjoined hereinafter to comply with the Fair Chance Act.
“The Fair Chance Act is about giving every Californian an opportunity to thrive,” said Civil Rights Department Director Kevin Kish. “We can’t expect people to magically gain the economic and housing stability needed to reintegrate into their communities and stay out of the criminal legal system without a fair chance at steady employment, particularly when the job has nothing to do with a past offense.”