BILL ANALYSIS                                                                                                                                                                                                    





                             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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