Under both the California Fair Employment and Housing Act (“FEHA”) and Title VII of the federal Civil Rights Act of 1964), certain questions are impermissible during job interviews because they may lead to discrimination or bias. The California Civil Rights Department (formerly known as the Department of Fair Employment & Housing) has published written guidance for employers on that topic, which is very helpful.

The following is a summary of the CDR’s guidelines:

Health and Disability

• Medical Conditions: Inquiries about whether a candidate has any medical conditions or disabilities are impermissible. Employers may only ask if the candidate can perform the essential functions of the job position, either with or without reasonable accommodation.

• Mental Health: Questions about mental health conditions are also prohibited.

Background and Personal Beliefs

• Religion: Asking about a candidate's religious beliefs, practices, or affiliations is not allowed.

• Political Affiliation: Questions about political beliefs or affiliations are impermissible.

• Sexual Orientation: Inquiries about a candidate's sexual orientation, gender identity, or gender expression are prohibited.

Artificial intelligence (AI) has revolutionized the way things are conducted in many sectors of the world’s economy. AI is particularly suited for otherwise routinized tasks that may be done more efficiently by using machine learning technology. However, its use in areas that have traditionally involved human subjective interpretation of information is now growing more prevalent as AI technology improves and becomes more mainstream.

While AI offers numerous benefits, it also poses potential unintended risks, particularly in terms of employment discrimination.

One of the most pressing concerns is disparate impact discrimination, where seemingly neutral AI systems disproportionately affect certain protected groups. However, with the proper implementation and safeguards, AI may be an effective adjunct to human-based decisions in the employment context.

Disparate Impact Discrimination Theory

Both the California Fair Employment & Housing Act (“FEHA”) and the federal Title VII of the Civil Rights Act of 1964 (Title VII”) recognize the disparate impact theory of establishing illegal employment discrimination. Disparate impact discrimination occurs when a policy or practice that appears neutral on its face has a disproportionately adverse effect on members of a protected group, such as those based on race, gender, or age. Unlike disparate treatment, which involves intentional discrimination, disparate impact focuses on the outcomes of a policy or practice, regardless of intent

On May 12, 2022, the U.S. Equal Employment Opportunity Commission published important guidance for employers regarding the proper use of artificial intelligence ("AI") in assessing job applicants and employees with disabilities under the federal Americans With Disabilities Act (“ADA”).

Employers now have a wide variety of computer-based tools available to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment.

The agency noted the multitude of contexts in which AI may be applied to assist employers “in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment.”

The EEOC's Technical Assistance Document is entitled " The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.” It is available at the following link: The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees | U.S. Equal Employment Opportunity Commission

On May 18, 2023, the U.S. Equal Employment Opportunity Commission published important guidance for employers regarding the proper use of artificial intelligence ("AI") in selecting and managing their workforce.

The agency noted the multitude of contexts in which AI may be applied in employment: "[e]mployers now have a wide variety of algorithmic decision-making tools available to assist them in making employment decisions, including recruitment, hiring, retention, promotion, transfer, performance monitoring, demotion, dismissal, and referral."

The EEOC's Technical Assistance Document is entitled "Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964." It is available at the following link: Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964 | U.S. Equal Employment Opportunity Commission

Direct Termination vs. Constructive Discharge

The law recognizes that employees need not be explicitly “fired” by their employer to be able to assert a case based on the wrongful nature of the employment termination. In some settings, most notably those involving a minority shareholder in a corporation. intentionally forcing someone out of a business is called “freezing them out.” In the employment context, when an employer intentionally makes the workplace so intolerable that it causes an employee to resign, it is known as a “constructive discharge.”

In California, the leading case on the constructive discharge doctrine is the California Supreme Court case of Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238. Both California and federal law recognize the doctrine of constructive discharge. (E.g., Draper v. Coeur Rochester, Inc. (9th Cir. 1998) 147 F.3d 1104.)

Frequently Asked Questions

Q: Is a constructive discharge by itself something that an employee may file a legal claim over?

A: No. A constructive discharge is simply a species of employment termination that does not treat the employee as having voluntarily quit by their own choice. A constructive discharge where the employer forced the employee to quit does not create liability unless the reason for causing the employee to quit is itself independently illegal. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.)