BILL ANALYSIS Ó
AB 984
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Ian Charles Calderon, Chair
AB 984
(Calderon) - As Amended March 26, 2015
SUBJECT: Use of age information in employment.
SUMMARY: Prohibits employers from using information found
online, as specified, to discriminate against job applicants.
Specifically, this bill:
1)Clarifies that an employer shall not use information obtained
on an Internet Website 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)Provides the following definitions:
a) "Commercial online entertainment employment service
provider" means a person or business that owns, licenses,
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or otherwise possesses computerized data that includes
personal information of people employed in the
entertainment industry, including television, films, and
video games, and that makes the personal information
available to the public or potential employers.
b) "Payment" means for a fee in exchange for
advertisements, or any other form of compensation or
benefit.
4)Makes related findings and declarations.
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)Prohibits employment discrimination covering employers, labor
organizations, employment agencies, apprenticeship programs
and any person or entity who aids, abets, incites, compels, or
coerces the doing of a discriminatory act. It prohibits
employment discrimination based on race or color; religion;
national origin or ancestry, physical disability; mental
disability or medical condition; marital status; sex or sexual
orientation; age, with respect to persons over the age of 40;
and pregnancy, childbirth, or related medical conditions.
(Government 12900 et seq.)
FISCAL EFFECT: Unknown
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COMMENTS:
1)Author & sponsor's statement of need for legislation: Existing
laws against age discrimination need shoring up in the online
employment environment. According to the author, "Age
discrimination in employment is against both federal and state
law. In California the relevant statutes are the California
Fair Employment and Housing Act (FEHA) and the Unruh Civil
Rights Act. Sadly, despite these laws age discrimination
continues to exist and is facilitated through public
distribution of potential job applicant's birth and age
information via commercial online employment service
providers.
"Even the fear of age discrimination is troubling in the
entertainment industry, where one woman sued Internet Movie
Database (IMDb), an online cast and 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, birthdate and age are prominently
displayed on the IMDb public page.
Additionally, the author points out, "one complicating factor
in the fight against age discrimination in Hollywood is the
notion that artistic freedom provides a haven from
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antidiscrimination laws. Indeed the law recognizes a defense
against charges of discrimination for a bona 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." However, 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."
The Screen Actors Guild/American Federation of Television and
Radio Artists are the sponsors of this legislation and have
written the committee to say, "In the case of actors, an
employer casting a part may make a decision based on how young
or old the actor looks but may not exclude the actor from
trying out for the part simply because of his or her
biological age. In other words, an actor's biological age
cannot be a bar to applying for the part. We all know that
frequently actors play the role of persons that are different
from their true biological age. After all, the essence of
acting is creating an illusion."
2)Age discrimination remains a stubborn problem. 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%. The AARP reports that, "Age
discrimination claims have been on the rise since 1997, when
15,785 reports were filed, according to the Equal Employment
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Opportunity Commission. Last year, 21,396 claims were
recorded. Not every lawsuit is valid, experts say. Many are
settled without assigning blame. Companies are sometimes
hamstrung by the law from giving their side of the story in
age discrimination cases. On the other hand, consumer
advocates and lawyers say recorded claims represent only a
slice of the total number of workers who get pushed out of a
job because they are older. One possible reason for the trend:
an aging population. More than 20 % of workers in the United
States, some 33 million, are age 55 and up, according to the
Bureau of Labor Statistics." (Forced Out, Older Workers Are
Fighting Back, by Carole Fleck, AARP Bulletin, May 2014,
http://www.aarp.org/work/on-the-job/info-2014/workplace-age-dis
crimination-infographic.html , accessed April 22, 2015.)
3)Long arm jurisdiction of California: Purposeful availment and
sufficient minimum contacts. This bill contains two major
provisions, the first clarifies that an employer shall not use
information obtained on an Internet Website regarding a
person's age to discriminate against that person for
employment. The second 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.
In order for one state to assert jurisdiction over a business
located in another state, the law requires that there be
sufficient minimum contacts, (e.g. contracts, directed
advertisements or customers) for the assertion of jurisdiction
to be found reasonable. The United States Supreme Court has
decided a number of cases that have established and refined
the principle that it is unfair for a court to assert
jurisdiction over a party unless that party's contacts with
the state in which that court sits are such that the party
"could reasonably expect to be hauled into court" in that
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state. This jurisdiction must "not offend traditional notions
of fair play and substantial justice". International Shoe Co.
v. Washington, 326 U.S. 310 (1945).
A non-resident defendant has minimum contacts with the forum
state if they 1) have direct contact with the state; 2) have a
contract with a resident of the state; 3) have placed their
product into the stream of commerce such that it reaches the
forum state, 4) seek to serve residents of the forum state; 5)
have satisfied the Calder effects test; or 6) have a
non-passive website viewed within the forum state. (Citations
omitted.)
The test for whether websites may provide minimum contacts is
outlined in the Zippo decision, where the court found that
commercial websites which do a substantial volume of business
over the Internet, and through which customers in any location
can immediately engage in business with the website owner,
provides a basis for jurisdiction. Zippo Manufacturing Co. v.
Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
In this case, the proposed legislation is targeted to
commercial Internet sites which knowingly do business with
California residents through exchanging payment for the
service of posting resumes and photographs on their site.
Thus, the bill appears to comply with the constitutional
requirements for California to assert jurisdiction.
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REGISTERED SUPPORT / OPPOSITION:
Support
California Labor Federation, AFL-CIO
California Teamsters Public Affairs Council
Screen Actors Guild-American Federation of Television and Radio
Artists
Opposition
There is no opposition on file.
Analysis Prepared by:Dana Mitchell / A.,E.,S.,T., & I.M. / (916)
319-3450
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