HBO’s Lovecraft Country Highlights the Purpose of the New FEHA Regulations



Warning: The post below includes spoilers for HBO’s Lovecraft Country.

If you love horror, magic, period pieces, and H.P. Lovecraft, HBO’s new series Lovecraft Country may be the show for you. Set against the backdrop of a segregated America in the Jim Crow era of the 1950s, Lovecraft Country follows Atticus Freeman and his friends as they encounter both supernatural and human threats on the road. 

And, although the main characters of the show regularly manage to navigate the many supernormal phenomena the show throws at them, their experience with the paranormal does little to prepare them for the myriad adverse employment actions contained in episode 5, “Strange Case.” 

Spoilers Start Here

In this episode, Hillary Davenport arrives at a local department store to interview for a counter girl position. During her brief interview, she encounters enough adverse preemployment actions to make any employer cringe.

Fortunately, Hillary proves more than capable of handling herself in said cringe-worthy situations. However, the episode’s interview scene reminded me of California’s recently updated Fair Employment and Housing Act (FEHA) regulations for preemployment practices.

New California FEHA Regulations for Preemployment Practices

As of July 1, 2020, FEHA established new regulations clarifying what preemployment practices constitute age- and religious creed-based employment discrimination.

Preemployment inquiries and job applications. Under FEHA’s revised regulations, employers may not request scheduling information for the purpose of determining an applicant’s religious creed, disability, or medical condition. 

All scheduling inquiries must clearly explain that the applicant need not disclose any scheduling restrictions based on legally protected grounds. This requirement also applies to physical and online job applications.

The new FEHA regulations also address age discrimination for preemployment inquiries. For example, employers are not permitted to request an applicants’ age, date of birth, or graduation dates.

Recruiting and advertising. The revised regulations also curtail the language that may be used in recruiting and advertising, prohibiting anything that a “reasonable person would interpret as deterring or limiting employment of people age 40 and over,” unless age is a bona fide occupational qualification for the position.

Presumption of age discrimination. Last but not least, the revised regulations create a presumption of age discrimination for practices that have an adverse impact on applicants and employers aged 40 or older, even if the policies or practices appear neutral on their face and do not expressly or specifically target older workers.

To overcome this presumption, employers must show that a preemployment practice is “job related and consistent with business necessity.” In practice, this presumption may make it easier for employees to file age discrimination claims and harder for employers to defend against them.

Closing Thoughts

Although Lovecraft Country may be entirely fictional, the lessons to be learned from episode 5’s interview scene are not. As California employers resume recruiting and hiring activities following the COVID-19 lockdown, it is important that they examine their preemployment practices and policies to ensure they do not clash with FEHA’s newly revised preemployment regulations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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