BILL ANALYSIS Ó
AB 984
Page 1
Date of Hearing: April 22, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, 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
AB 984
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Opposition
None on file.
Analysis Prepared by:Lorie Alvarez / L. & E. / (916) 319-2091