Silver Taube: California Civil Rights Department files lawsuit alleging violations of Fair Chance Act
The Fair Chance Act went into effect in 2018 and aims to combat discrimination and reduce undue barriers to employment for people with a criminal history. Photo by Charisse Domingo courtesy of Silicon Valley De-Bug.

On Dec. 21, 2023, the California Civil Rights Department filed a first of its kind lawsuit against Ralphs Grocery Company over alleged violations of the state’s Fair Chance Act, which resulted in the denial of employment opportunities to hundreds of applicants with criminal histories at grocery store locations across Southern California.

The Fair Chance Act, or Ban the Box, went into effect in 2018 and aims to combat discrimination and reduce undue barriers to employment for people with a criminal history.

Section 1 of the statute states that “roughly seven million Californians, or nearly one in three adults, have an arrest or conviction record that can significantly undermine their efforts to obtain gainful employment.” It also states that “experts have found that employment is essential to helping formerly incarcerated people support themselves and their families, that a job develops prosocial behavior, strengthens community ties, enhances self-esteem, and improves mental health, all of which reduce recidivism.”

Notably, the statute states that “experts have found that people with conviction records have lower rates of turnover and higher rates of promotion on the job and that the personal contact with potential employees can reduce the negative stigma of a conviction by approximately 15 percent.”

In passing the Fair Chance Act, the Legislature recognized that employment is essential to helping formerly incarcerated people support themselves and their families and reduces the likelihood of recidivism.

The law generally prohibits employers with five or more employees from asking about conviction history before making a conditional job offer, requires specific procedures for considering an applicant’s criminal history after a conditional job offer and limits convictions that employers can consider disqualifying to those that have a direct relationship with job responsibilities.

The California Civil Rights Department (CRD) is tasked with investigating and prosecuting violations of the Fair Chance Act and other civil rights laws. The Fair Chance Act is codified in Government Code Section 12952. The CRD has created a Fair Chance Act Toolkit for applicants, employees and employers, an online interactive guide and FAQ.

In the lawsuit filed in Los Angeles County Superior Court last December, CRD alleges that Ralphs repeatedly violated the Fair Chance Act because multiple candidates lost their job offers based on convictions for a single misdemeanor count of excessive noise. Other applicants who had convictions from other states for simple cannabis possession were also disqualified. CRD alleges these types of convictions, and hundreds more, have no adverse relationship with the duties of working at a grocery store and were not legitimate grounds for the withdrawal of a conditional offer of employment.

According to CRD, Ralphs also failed to perform individualized assessments of applicants’ criminal histories, provided inadequate notification about the grounds for the revocation of a conditional job offer and unlawfully included questions in its job application form seeking the disclosure of an applicant’s criminal history — a direct violation of the Fair Chance Act.

In addition, CRD alleges more than 75% of job applicants who were told their job offer would be withdrawn were not provided with any way to contact Ralphs to contest the decision, as legally required. Those who were provided with a way to contact Ralphs received a phone number, without being told it was a fax line, who was on the other end or what format to use to present the information.

In August 2023, CRD announced a nearly $100,000 mediated settlement with the Moraga-Orinda Fire Protection District over alleged Fair Chance Act violations. The settlement was on behalf of an individual who had been employed with another fire protection district and subsequently lost employment after leaving to accept the new position, which was rescinded after a conditional offer of employment.

The complaint alleged the fire district unlawfully rescinded an offer without considering the nature of the offense, the time that had passed since the offense and whether the offense was related to the job.

In June 2022, CRD—then called the Department of Fair Employment and Housing—also announced a $100,000 settlement of a Fair Chance Act complaint against Mitsui Home America LLC, a construction company specializing in prefabricated building components.

According to the complaint, the company did not provide required notices to job seekers with criminal histories and denied jobs to applicants whose conviction history did not have a direct and adverse relationship to the job duties. The complaint was on behalf of a class of seven applicants who were denied positions between 2018 and 2019.

Despite the enactment of the Fair Chance Act, an analysis conducted by the Prison Policy Initiative on data released by the Bureau of Justice Statistics in 2021 showed that approximately 60% of formerly incarcerated people are jobless at any given time across the country. It also showed formerly incarcerated people are often forced into the least desirable jobs, and earnings for Black and Native American people released from federal prison were lower than any other racial or ethnic group.

As a result, Sen. Lola Smallwood-Cuevas introduced the Fair Chance Act of 2023, which seeks to strengthen the current law. The bill would disallow all employment criminal background checks unless a background check is authorized or required by statute. Senate Bill 809 was held in committee and has moved to a two-year cycle. There will be another opportunity to move the bill forward in 2024.

We need to ensure that all Californians have a fair chance at employment opportunities. As CRD Director Kevin Kish stated: “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.”

San José Spotlight columnist Ruth Silver Taube is supervising attorney of the Workers’ Rights Clinic at the Katharine & George Alexander Community Law Center, supervising attorney of the Santa Clara County’s Office of Labor Standards Enforcement Legal Advice Line and a member of Santa Clara County’s Fair Workplace Collaborative. Her columns appear every second Thursday of the month. Contact her at [email protected].

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