BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1687 (Calderon)
Version: June 16, 2016
Hearing Date: June 28, 2016
Fiscal: No
Urgency: No
TH
SUBJECT
Customer Records: Age Information: Commercial Online
Entertainment Employment Service Providers
DESCRIPTION
This bill would prohibit a commercial online entertainment
employment service provider (service provider) that enters into
a contractual agreement to provide employment services to an
individual, upon request by the subscriber, from either
publishing or making public the subscriber's date of birth or
age information in an online profile of the subscriber, or
sharing the subscriber's date of birth or age information with
any Internet Web sites for the purpose of publication. This
bill would additionally require a service provider to remove
within five days the subscriber's date of birth and age
information in an online profile from public view on all
Internet Web sites under its control upon request by the
subscriber.
BACKGROUND
Existing law, the Fair Employment and Housing Act (FEHA),
prohibits discrimination in housing and employment because of
race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or
military and veteran status (protected characteristics). Over
time, these statutes have been amended to include other
characteristics such as medical conditions, marital status, and
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sexual orientation, reflecting the state's public policy against
discrimination in all forms.
Despite laws like FEHA which seek to prohibit discrimination on
the basis of age, recent news articles suggest that age
discrimination remains a problem in the entertainment industry.
A recent article in the Guardian states:
The commonplace practice of casting a much younger female
against a much older male has been prevalent since Hollywood's
golden age: Kim Novak was half the 50-year-old James Stewart's
age during filming of 1958's Vertigo.
. . .
However, Hollywood finds itself under increasing scrutiny in
2015 for failing to represent women fairly on screen and
behind the cameras. Earlier this month, the American Civil
Liberties Union announced it would demand that state and
federal agencies investigate why major studios regularly fail
to hire aspiring and seasoned female directors for movies,
citing "rampant discrimination" in the industry. Meanwhile, a
report by the Center for the Study of Women in Television,
Film & New Media at San Diego State University found that
female actors took just 12 [percent] of leading roles in the
top 100 domestic-grossing films of 2014. (Ben Child, Maggie
Gyllenhaal: At 37 I was 'Too Old' for Role Opposite
55-Year-Old Man, Guardian (May 21, 2015)
[as of June 4, 2016].)
This bill would allow individuals, including actors, actresses,
and directors, to prohibit commercial online entertainment
employment service providers from publishing or making public a
subscriber's date of birth or age information in an online
profile of the subscriber, or sharing the subscriber's date of
birth or age information with any Internet Web sites for the
purpose of publication.
CHANGES TO EXISTING LAW
Existing law , the Fair Employment and Housing Act (FEHA),
prohibits, as a matter of public policy, discrimination and
harassment in employment on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital
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status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status. (Gov. Code
Sec. 12940 et seq.)
Existing law prohibits, unless based upon a bona fide
occupational qualification, or, except where based upon
applicable security regulations, as specified, an employer to
refuse to hire or employ a person or to refuse to select a
person for a training program leading to employment or to bar or
to discharge a person from employment or from a training program
leading to employment, or to discriminate against a person in
compensation or in terms, conditions, or privileges of
employment on the basis of age. (Gov. Code Sec. 12940(a).)
Existing law prohibits an employer or employment agency from
printing or circulating or causing to be printed or circulated
any publication, or from making any nonjob-related inquiry of an
employee or applicant, either verbal or through use of an
application form, that expresses, directly or indirectly, any
limitation, specification, or discrimination as to age, or any
intent to make any such limitation, specification, or
discrimination. This provision does not prohibit an employer or
employment agency from inquiring into the age of an applicant,
or from specifying age limitations, where the law compels or
provides for that action. (Gov. Code Sec. 12940(d).)
This bill provides that a commercial online entertainment
employment service provider that enters into a contractual
agreement to provide employment services to an individual for a
subscription payment shall not, upon request by the subscriber,
do either of the following:
publish or make public the subscriber's date of birth or age
information in an online profile of the subscriber; or
share the subscriber's date of birth or age information with
any Internet Web sites for the purpose of publication.
This bill provides that a commercial online entertainment
employment service provider shall, within five days, remove from
an online profile of the subscriber a subscriber's date of birth
and age information from public view on all Internet Web sites
under its control upon specific request by the subscriber naming
the Internet Web sites, as specified.
This bill defines "commercial online entertainment employment
service provider" to mean a person or business that owns,
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licenses, or otherwise possesses computerized information,
including, but not limited to, age and date of birth
information, about individuals employed in the entertainment
industry, including television, films, and video games, and that
makes the information available to the public or potential
employers.
COMMENT
1.Stated need for the bill
The author writes:
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). Yet, age
discrimination continues to exist and is facilitated through
public distribution of potential job applicants' birth and age
information. Statistics from the U.S. Equal Employment
Opportunity Commission show that from 2006-2013, age
discrimination claims rose 38 [percent].
Under FEHA, an employer is generally prohibited from asking
about the age of a job applicant until a bona fide offer of
employment was made. In the past, when prospective employers
learned about prospective job applicants almost exclusively
through employment applications, information about the
applicant's date of birth would not be asked and an employer
could not as easily discriminate. In the internet age, this
has all changed and information about prospective job seekers
is now [publicly] available on employment related websites and
social media. Thus, a prospective employer investigating a
job applicant may come across information that would permit
age discrimination to occur without it being traced. This is
an area of special concern to artists in the entertainment
industry. In particular, actors are often cast in roles in
which they portray characters who are younger or older than
their real biological age. Casting directors and others
frequently use web sites, such as [IMDb], to access
information about actors, which contain information that
should not be available until the part is cast. As actors
age, they are very concerned that they will be shut out from
parts based on unlawful age bias.
Under FEHA, an employer may have a defense to a charge of
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unlawful employment discrimination if there is a "bona fide
occupational qualification" (BFOQ). For actors, how a person
looks or sounds, their race or gender, and other qualities
would be a BFOQ even where it would not for other occupations.
Thus, this defense would allow a studio to lawfully
discriminate against women if the part is for a man. While a
BFOQ provides a safe harbor in these instances, it would not
protect a studio from limiting the right of actors to audition
for a role to an actor younger or older than a particular
birth year. This would prevent an actor from doing what is
the essence of their craft-convincingly play a role of
something they are not.
AB 1687 provides a common sense solution to this problem by
requiring web sites that provide employment related services
on a subscription basis to remove date of birth information on
the request of the subscriber. Thus, if a subscriber is
concerned about age discrimination, he or she can have the
information deleted. No one should have to pay for a service
that contains information that can lead to age discrimination.
2.Providing age discrimination protection in the entertainment
industry
The Fair Employment and Housing Act (FEHA) generally prohibits
discrimination against an employee or employment applicant on
the basis of age, unless an employer can demonstrate a bona fide
occupational qualification that warrants such discrimination.
(Gov. Code Sec. 12940(a).) As noted in the Background, above,
age discrimination is widely perceived as a problem in the
entertainment industry. While the nature of some entertainment
positions, such as character roles depicting an individual of a
certain age, may authorize employers to lawfully screen
applicants on that basis, stakeholders such as the Association
of Talent Agents assert that "[unlawful] 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."
In 2011, an actress named Huong Hoang, also known as Junie
Hoang, sued an internet-based entertainment database known as
IMDb for publicly revealing her age, alleging that doing so
negatively impacted her ability to land roles in the
entertainment industry. IMDb holds itself out as "the world's
most popular and authoritative source for movie, TV and
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celebrity content" and offers consumers "a searchable database
of more than 185 million data items including more than 3
million movies, TV and entertainment programs and more than 6
million cast and crew members." (See
http://www.imdb.com/pressroom/ [as of June 4, 2016].) Ms. Hoang
alleged that she had signed up for the pro version of Internet
Movie Database in 2008, during which she gave IMDb detailed
personal and credit card information, and that soon thereafter,
IMDb listed the legal date of her birth on her public profile.
Claiming that attaching an age to her name caused her economic
harm, Ms. Hoang stated:
"If one is perceived to be 'over-the-hill,' i.e. approaching
40, it is nearly impossible for an up-and-coming actress . . .
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." (Eriq Gardner,
Actress Sues IMDb for $1 Million for Revealing Her Age, The
Hollywood Reporter (October 18, 2011)
[as of June 4, 2016].)
In 2013, the jury in Ms. Hoang's case returned a defense verdict
in favor of IMDb, finding that the company had not breached any
legal obligations owed to the actress. (See Eriq Gardner, IMDb
Wins Lawsuit over Actress Age Revelation, The Hollywood Reporter
(April 11, 2013)
[as of June 4, 2016].)
This bill would prohibit companies like IMDb from revealing the
age of subscribers who sign up for paid employment services,
like IMDb pro, at the subscriber's election. The bill would
also require such companies to, within five days of a
subscriber's request, remove from an online profile of the
subscriber their date of birth and age information on all Web
sites under their control. In so doing, this bill would
arguably help potential employees keep sensitive age information
out of the public sphere so as to lessen the possibility that
they would become the victim of unlawful age discrimination.
3.Potential impact to free speech
As noted above in Comment 2, this bill would not only empower
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the subscriber of a commercial online entertainment employment
service to be able to prohibit the disclosure of sensitive
age-related information on the internet, but would also empower
the subscriber to require such a service to remove this
information from any other Web site under its control. This
second provision could allow subscribers to collaterally impact
Web sites that disclose sensitive age information in an online
profile, even if such information was obtained outside the
subscriber-service provider relationship or pre-dated that
relationship, provided the Web site in question was under the
control of the service provider. Thus, taking Ms. Hoang's
conflict with IMDb as an example, under this bill Ms. Hoang
would potentially be able to sign up for IMDb's entertainment
employment service solely to force IMDb's public-facing Web site
to remove any sensitive age information relating to her.
Depending on the facts in a particular case, this provision
could impact the exercise of free speech on unrelated Web sites
controlled by entertainment employment service providers, such
as news Web sites that profile figures in the entertainment
industry. Given this possibility, the Committee may wish to
consider an amendment restricting the reach of this bill to only
cover sensitive age information disclosed as part of the
subscriber-service provider relationship.
Support : Association of Talent Agents; California Labor
Federation; WME IMG
Opposition : Internet Association; State Privacy and Security
Coalition, Inc.
HISTORY
Source : Screen Actors Guild - American Federation of Television
and Radio Artists
Related Pending Legislation : None Known
Prior Legislation : AB 984 (Calderon, 2016) would have
prohibited an employer from using information regarding a
person's age in making any employment decision regarding that
person, and would have specified that a commercial online
entertainment employment service provider, as defined, that
knowingly accepts payment from persons in California in exchange
for posting their resumes and professional photos online shall
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be considered as doing business in this state and subject to the
antidiscrimination laws of California.
Prior Vote :
Assembly Floor (Ayes 71, Noes 4)
Assembly Privacy and Consumer Protection Committee (Ayes 11,
Noes 0)
Assembly Arts, Entertainment, Sports, Tourism, and Internet
Media Committee (Ayes 6, Noes 1)
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