BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1687|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 1687
Author: Calderon (D)
Amended: 8/2/16 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-1, 6/28/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Anderson
NO VOTE RECORDED: Moorlach
ASSEMBLY FLOOR: 71-4, 5/12/16 - See last page for vote
SUBJECT: Customer records: age information: commercial online
entertainment employment service providers
SOURCE: Screen Actors Guild - American Federation of
Television and Radio
Artists
DIGEST: This bill prohibits a commercial online entertainment
employment service provider (service provider) that enters into
a contractual agreement to provide employment services to an
individual, upon request of 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 additionally requires 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 any companion Internet Web
sites under its control upon request by the subscriber.
AB 1687
Page 2
ANALYSIS:
Existing law:
1)Prohibits as a matter of public policy, under the Fair
Employment and Housing Act (FEHA), 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 status, sex, gender, gender identity, gender
expression, age, sexual orientation, or military and veteran
status. (Gov. Code Sec. 12940 et seq.)
2)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).)
3)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:
1)Provides that a service provider that enters into a
contractual agreement to provide employment services to an
individual for a subscription payment shall not, upon request
AB 1687
Page 3
by the subscriber, do either of the following:
a) Publish or make public the subscriber's date of birth or
age information in an online profile of the subscriber; or
b) Share the subscriber's date of birth or age information
with any Internet Web sites for the purpose of publication.
2)Provides that a service provider shall, within five days,
remove from public view an online profile of the subscriber a
subscriber's date of birth and age information on any
companion Internet Web sites under its control upon specific
request by the subscriber naming the Internet Web sites, as
specified.
3)Defines "commercial online entertainment employment service
provider" to mean a person or business that owns, 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.
Background
Existing law, the 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 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
AB 1687
Page 4
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)
Page 5
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
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.
Related/Prior Legislation
AB 1687
Page 6
AB 984 (Calderon, 2015) 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 service provider, as defined, that knowingly
accepts payment from persons in California in exchange for
posting their resumes and professional photos online shall be
considered as doing business in this state and subject to the
antidiscrimination laws of California. The bill died in the
Assembly Appropriations Committee.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified8/2/16)
Screen Actors Guild - American Federation of Television and
Radio Artists (source)
Association of Talent Agents
California Labor Federation
WME IMG
OPPOSITION: (Verified8/3/16)
Computer & Communications Industry Association
Electronic Frontier Foundation
Internet Association
State Privacy and Security Coalition, Inc.
TechNet
ASSEMBLY FLOOR: 71-4, 5/12/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Calderon,
Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper,
Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher,
Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,
Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden,
Irwin, Jones, Kim, Lackey, Levine, Linder, Lopez, Low,
Maienschein, Mathis, McCarty, Medina, Melendez, Mullin,
AB 1687
Page 7
Nazarian, O'Donnell, Olsen, Quirk, Ridley-Thomas, Rodriguez,
Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,
Wagner, Waldron, Weber, Wilk, Wood, Rendon
NOES: Beth Gaines, Grove, Harper, Obernolte
NO VOTE RECORDED: Burke, Jones-Sawyer, Mayes, Patterson,
Williams
Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
8/3/16 18:49:55
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