The FEHA Imposes New Limitations on Employers for Posting Driver’s License Requirements in Job Advertisements

This year’s legislative session added a new restriction concerning employers that require job applicants to possess a valid driver’s license.  This is the latest development related to California’s 2014 expansion of the Fair Employment and Housing Act’s (the “FEHA’s”) definition of “national origin” discrimination to include discrimination based on possessing a driver’s license granted by the DMV to undocumented immigrants.  (Gov. Code § 12926(v).)

A decade later, SB 1100, which has been signed into law and is set to take effect on January 1, 2025, makes it an unlawful employment practice under the FEHA for an employer to include a statement in employment materials, such as a job advertisement, posting, or application, that an applicant must have a driver’s license.

This new law creates a limited exception.  An employer may include a statement in a job advertisement that an applicant must have a driver’s license if the employer:

(1) reasonably expects the duties of the position to require driving; and

(2) reasonably believes that satisfying that job function using an alternative form of transportation would not be comparable in travel time or cost to the employer.

For purposes of this new law, “alternative form of transportation” includes using a ride hailing service, taxi, carpooling, bicycling, and walking.

Violating the new law is likely to be regarded as an “unlawful employment practice” under the FEHA, which can give rise to the host of damages typically sought under the FEHA, including monetary damages, in addition to potential attorneys’ fees.  As a result, employers should:

• review their job postings and other employment materials to identify any requirement that an applicant possess a driver’s license;
• determine whether the duties of the specific position actually requires driving;
• consider (1) whether the employee could satisfy their job functions using an alternative form of transportation, and (2) eliminating the driver’s license requirement from employment materials if using alternative forms of transportation would be comparable to driving as it relates to employee travel time or cost to the employer.

Boutin Jones Inc.’s Employment Law Group attorneys are available to assist employers, provide legal advice on the implications of this recent change in the law, and to answer any other questions you might have regarding the FEHA.