BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                     AB 984


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          Date of Hearing:  April 22, 2015


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger HernŠndez, Chair


          AB 984  
          (Calderon) - As Amended March 26, 2015


          SUBJECT:  Use of age information in employment


          SUMMARY:  Prohibits employers from using information found  
          online to discriminate against job applicants.  Specifically,  
          this bill:  


          1)Clarifies that an employer shall not use information obtained  
            on an Internet Web site regarding a person's age to  
            discriminate against that person for employment, whether an  
            applicant for employment or an employee.


          2)States that a commercial online entertainment employment  
            service provider that knowingly accepts payment from persons  
            in California to post their resumes and photos online is  
            subject to the antidiscrimination laws of this state.


          3)Defines "commercial online entertainment employment service  
            provider" and "payment" for purposes of this bill.


          4)Makes related findings and declarations.









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          EXISTING LAW:  


          1)States that all persons within the jurisdiction of this state  
            are free and equal and no matter what their sex, race, color,  
            religion, ancestry, national origin, disability, or medical  
            condition and are entitled to the full and equal  
            accommodations, advantages, facilities, privileges, or  
            services in all business establishments of every kind  
            whatsoever.  [Civil Code Section 51(b).]

          2)States it is unlawful for any talent agency licensee to refuse  
            to represent any artist on account of the artist's race,  
            color, creed, sex, national origin, religion or handicap.   
            (Labor Code Section 1700.47.)
          FISCAL EFFECT:  Unknown


          COMMENTS:  Age discrimination in employment is against both  
          federal and state law.  In California the relevant statute is  
          the California Fair Employment and Housing Act (FEHA). Sadly,  
          age discrimination continues to exist and is facilitated through  
          public distribution of potential job applicant's birth and age  
          information via Internet Web sites. 


          According to studies, the recent economic downturn now known as  
          the Great Recession led to large increases in unemployment rates  
          and unemployment durations for workers of all ages, but duration  
          of unemployment rose far more for older workers than for younger  
          workers.  Statistics from the U.S. Equal Employment Opportunity  
          Commission show that from 2006-2013, age discrimination claims  
          rose 38%. 


          According to the author, concern over age discrimination is  
          especially true in the entertainment industry, where one woman  
          sued Internet Movie Database (IMDb), which is an online cast and  








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          crew referral site used by the entertainment community, for  
          revealing her age.  In her complaint, the plaintiff pointed out  
          that, "one is perceived to be 'over-the-hill,' when approaching  
          40" in Hollywood.  She further alleges that age is such a  
          powerful employment screening factor, "it is nearly impossible  
          for an up-and-coming actress, such as the Plaintiff, to get work  
          as she is thought to have less of an 'upside' therefore casting  
          directors, producers, directors, agents/managers, etc. do not  
          give her the same opportunities, regardless of her appearance  
          and talent."  Currently, despite numerous requests for the Web  
          site to remove birthdate information and despite the law against  
          employer's use of age information in hiring, birthdate and age  
          are prominently displayed on the IMDb resume page of all  
          potential job applicants.


          Additionally, the author points out, that one complicating  
          factor in the fight against age discrimination in Hollywood is  
          the notion that artistic freedom provides a haven from  
          antidiscrimination laws.  Indeed the law recognizes a defense  
          against charges of discrimination for a bone fide occupational  
          qualification (BFOQ) which would allow for a man to be cast in  
          the role of a husband, or a child to be cast in the role of a  
          school girl.  Finally, the author contends that, anyone who has  
          ever seen Glee or 21 Jump Street knows we are not looking at  
          high school aged actors, and famously Olivia Newton-John was 29  
          when she starred as high school cheerleader Sandy in the movie  
          Grease.  Therefore, the true question posed under the age  
          discrimination BFOQ is what age can an actor play - not what  
          year are they born. 


          In recent years there were cases related to the question of  
          whether older writers can script youthful dialogue, the courts  
          have sided with older writers in a claim against both producers  
          and employment agencies holding, "FEHA has always prohibited any  
          person from aiding or abetting an act forbidden by FEHA"  
          (emphasis added.) Alch v. Superior Court (Sept. 14, 2004) 122  
          Cal. App. 4th 339.  This holding suggests that the IMDb  








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          publication of job seekers' age may violate FEHA, despite the  
          assertion of the BFOQ defense.


          With this bill the author seeks to clarify employers may not use  
          the age of a person obtained from a commercial online  
          entertainment employment service provider in making an  
          employment decision regarding that person and to limit the BFOQ  
          defense under FEHA that an actor's age is not a BFOQ for casting  
          decisions.  The author's intent with this bill is that casting  
          decisions are an expression of artistic vision which should be  
          protected in law, but that the actual birthdate of an actor is  
          not protected.


          This bill is double-referred to the Assembly Arts,  
          Entertainment, Sports, Tourism and Internet Media Committee upon  
          passage out of this Committee.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Labor Federation, AFL-CIO


          California Teamsters Public Affairs Council


          Screen Actors Guild-American Federation of Television and Radio  
          Artists











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          Opposition


          None on file.




          Analysis Prepared by:Lorie Alvarez / L. & E. / (916) 319-2091