An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

individualized circumstances) can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk and that the convictions being used to disqualify, or otherwise adversely impact the status of the applicant, have a direct and specific negative bearing on the person’s ability to perform the duties or responsibilities necessarily related to the employment position. Any bright-line conviction rule that includes conviction-related information that is seven or more years old is subject to a rebuttable presumption that it is not job-related and consistent with business necessity. 224 Even if the school demonstrates that its consideration of the applicant’s conviction history is job- related and consistent with business necessity, the applicant can still prevail on a claim under the FEHA if he or she can demonstrate that a less discriminatory policy or practice serves the school’s goals as effectively as the challenged policy or practice, such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the school. 225 a. Disparate Treatment: The FEHA also prohibits employers from treating applicants or employees differently in the course of considering criminal conviction history if the disparate treatment is substantially motivated by a basis enumerated in the FEHA (i.e. gender, race, national origin, etc.) In other words, if a school in inconsistent in how it considers the same kinds of criminal history for the same kinds of positions, it can, for example, give rise to claims that the school discriminates against employees who belong to a given protected status by treating them less favorably. b. Opportunity to Correct Factually Inaccurate Criminal Record: Regardless of whether a school conducts individualized assessments or utilizes a bright line rule, before it may decline to hire an applicant, based on conviction history obtained by a source other than the applicant or employee (e.g. through a credit report or internally generated research), the school must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is inaccurate. If the applicant establishes that the record is inaccurate, then the school may not consider it in the decision not to hire the applicant. 226 LCW Practice Advisor Schools should consult with legal counsel before they decide not to hire an individual based on a criminal conviction that does not automatically disqualify the individual from employment.

If a school decides to hire an individual who has been convicted of a violation or attempted violation of certain serious offenses, it must notify the parents or guardians of any minor who will be supervised or disciplined by the employee or volunteer at least 10 days prior to the day that the employee or volunteer begins his or her duties or tasks. 227

LCW Practice Advisor

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 74