1. (a) Recruitment.

   1. (1) Duty Not to Discriminate. Any employer or other covered entity engaged in recruitment activity shall recruit in a non-discriminatory manner. However, nothing in these regulations shall preclude affirmative efforts to utilize recruitment practices to attract an individual who is a member of an underrepresented protected class covered by the Act.

   2. (2) Prohibited Recruitment Practices. An employer or other covered entity shall not, unless pursuant to a permissible defense, engage in any recruitment activity, including but not limited to practices accomplished through the use of an automated-decision system, that:

      1. (A) Restricts, excludes, or classifies individuals on a basis enumerated in the Act;
      2. (B) Expresses a preference for individuals on a basis enumerated in the Act; or
      3. (C) Communicates or uses advertising methods to communicate the availability of employment benefits in a manner intended to discriminate on a basis enumerated in the Act.

2. (b) Pre-employment Inquiries.

   1. (1) Limited Permissible Inquiries. An employer or other covered entity may make any pre-employment inquiries that do not discriminate on a basis enumerated in the Act. Inquiries, including but not limited to inquiries made through the use of an automated-decision system, that directly or indirectly identify an individual on a basis enumerated in the Act are unlawful unless made pursuant to a permissible defense.

      1. (A) An employer may make, in connection with prospective employment, an inquiry as to, or a request for information regarding, the physical fitness, medical condition, physical condition, or medical history of applicants if the inquiry or request for information complies with the provisions of sections 11067, 11070 and 11071 of these regulations.
      2. (B) Pre-employment inquiries regarding an applicant's availability for work on certain days and times shall not be used to ascertain the applicant's religious creed, disability, or medical condition. Such inquiries must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds, in language such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?” or “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?”
   2. (2) Applicant Flow and Other Statistical Recordkeeping. Notwithstanding any prohibition in these regulations on pre-employment inquiries, it is not unlawful for an employer or other covered entity to collect applicant-flow and other recordkeeping data for statistical purposes as provided in section 11013(b) of these regulations or in other provisions of state and federal law.

3. (c) Applications.

   1. (1) Application Forms. When employers or other covered entities provide, accept, and consider application forms in the normal course of business, in so doing they shall not discriminate on a basis enumerated in the Act.
   2. (2) Photographs. Photographs shall not be required as part of an application unless pursuant to a permissible defense.

   3. (3) Schedule Information. An application's request for information related to schedule and availability for work shall not be used to ascertain the applicant's religious creed, disability, or medical condition. Such requests must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds in language such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?” or “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?”

      1. (A) The use of online application technology that limits, screens out, ranks, or prioritizes applicants based on their schedule may discriminate against applicants based on their religious creed, disability, or medical condition. Such a practice having an adverse impact is unlawful unless job-related and consistent with business necessity and the online application technology includes a mechanism for the applicant to request an accommodation.
   4. (4) Separation or Coding. Application forms shall not be separated or coded, manually or electronically, or otherwise treated so as to identify individuals on a basis enumerated in the Act unless pursuant to a permissible defense or for recordkeeping or statistical purposes.
   5. (5) Automated-Decision Systems. The use of an automated-decision system that, for example, measures an applicant's skill, dexterity, reaction time, and/or other abilities or characteristics may discriminate against individuals with certain disabilities or other characteristics protected under the Act. To avoid unlawful discrimination, an employer or other covered entity may need to provide reasonable accommodation to an applicant as required by Article 8 (religious creed) or Article 9 (disability) of these regulations.

4. (d) Interviews or Other Screening of Applicants. Interviews or other screening of applicants shall be free of discrimination. Notwithstanding any internal safeguards taken to secure a discrimination-free atmosphere in interviews or other screening of applicants, the entire interview or other screening process is subject to review for discrimination on a basis enumerated in the Act.

   1. (1) Automated-Decision Systems. An automated-decision system that, for example, analyzes an applicant's tone of voice, facial expressions or other physical characteristics or behavior may discriminate against individuals based on race, national origin, gender, disability, or other characteristics protected under the Act. To avoid unlawful discrimination, an employer or other covered entity may need to provide reasonable accommodation to an applicant as required by Article 8 (religious creed) or Article 9 (disability) of these regulations.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12940, 12941 and 12942, Government Code.

History

1. Change without regulatory effect renumbering former section 7287.3 to new section 11016 and amending section filed 10-3-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 40).

2. Amendment filed 4-14-2020; operative 7-1-2020 (Register 2020, No. 16).

3. Amendment of subsections (a)(2), (b)(1), (c)(3)(A) and (d) and new subsections (c)(5) and (d)(1) filed 6-27-2025; operative 10-1-2025 (Register 2025, No. 26).