BILL ANALYSIS                                                                                                                                                                                                    Ó






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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.








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          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  







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            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  







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            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








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          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,  







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            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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