Key Points

  • The Fair Chance Act, Government Code section 12952, requires employers to follow set procedures before rejecting an applicant over a conviction but does not permit a court or jury to second-guess the employer's individualized assessment.
  • A former regulation's rebuttable presumption against bright-line policies considering convictions seven or more years old applied only to adverse-impact claims and did not govern McInerney's claims.
  • An applicant denied the statute's full five business days to respond must prove the violation caused harm, because the act provides for no statutory damages or penalties.
  • E-mails protesting reliance on old convictions were not protected opposition activity under FEHA, and hostile, profane communications fall outside FEHA's protection under Title VII precedent.
  • The court affirmed the judgment for the Regents, with each side bearing its own costs on appeal.

A California appeals court held that the state's Fair Chance Act, which governs how employers may use a job applicant's criminal record, requires employers to follow set procedures before rejecting an applicant but does not let a court or jury decide whether the employer judged the record correctly.

The Second Appellate District, Division Two, affirmed a judgment for the Regents of the University of California against John McInerney, a UCLA student who lost an offer for a campus office job after a background check turned up four drug convictions from 2005 and 2007. Acting Presiding Justice Chavez wrote for a unanimous panel that included Justices Richardson and Goorvitch. The opinion was filed Sept. 18 and certified for publication on Tuesday.

The decision confines Fair Chance Act claims to the process an employer used, not the employer's conclusion that a conviction bears on the job. The panel also held that an applicant given less than the statute's five business days to respond must prove the shortfall cost the applicant the position. And it held that profane e-mails protesting a background check are not protected by the Fair Employment and Housing Act, the state employment discrimination law that includes the Fair Chance Act.

In October 2021, the university made McInerney a conditional offer for an office assistant post at its Graduate Student Resource Center. The center's interim director, Andrew McClure, described the job as "a forward-facing position, serving students, staff, and the community on a regular basis."

In November, campus human resources told McClure to take McInerney off the work schedule until his background check was complete. "The HR assholes better have a good reason why they harmed me," McInerney wrote McClure on Nov. 30, 2021.

A police backlog delayed the check until Jan. 4, 2022. It showed three drug convictions in 2005 and a 2007 felony conviction for possession of a controlled substance for sale, which brought a two-year prison sentence.

On Jan. 5, Sara Haider, who assessed his record for the university, notified McInerney that his convictions "may" disqualify him and gave him five business days to submit evidence of rehabilitation or mitigating circumstances. He submitted none. Instead, he wrote university staff that "this is not North Korea," called them "witch hunters" and compared them to "the great Inquisition."

On Jan. 7, Haider forwarded the e-mails to her supervisor, Anthony Solana. "He was belligerent and very unprofessional in his emails to me," she wrote. Solana declined to clear McInerney, and Haider told him the same day that he was ineligible, before the five business days had run.

Los Angeles County Superior Court Judge Barbara Ann Meiers disposed of the retaliation claims before trial through summary adjudication, a ruling that resolves individual claims when the evidence presents no triable factual dispute. The judge found that UCLA had followed the statute except for the five-day window and sent the question of harm to a jury. The jury found that McInerney's criminal history was not a substantial factor in the decision and that UCLA would have reached the same result even if he had submitted evidence of rehabilitation.

On appeal, McInerney argued that his convictions, then more than 14 years old, had no "direct and adverse" relationship to an office assistant's duties. The statute tells employers to apply that test in an "individualized assessment" of an applicant's record. The panel held that the test governs the employer's process and leaves the employer's conclusion outside judicial review.

"We conclude the cited provisions, and the statute as a whole, do not permit a court or jury to second-guess an employer's individualized assessment," Chavez wrote. The statute, the opinion said, "does not require an employer to hire an individual with a criminal background in the event there is no direct and adverse relationship between the job and the conviction."

Chavez pointed to provisions allowing employers to skip putting the assessment in writing and to reject an applicant without explaining why. The opinion contrasted New York and Minnesota laws that expressly bar rejections unless the conviction relates to the job. It also cited a 2017 Senate Judiciary Committee analysis predicting that the assessment requirement "will act as more of a guideline."

The court rejected McInerney's reliance on a former regulation that created a rebuttable presumption against bright-line policies considering convictions seven or more years old. That presumption applied only to claims that an employer's policy has an "adverse impact" on groups the statute protects, the panel held, and lawmakers had removed a proposed seven-year limit from the final bill.

On the five-day violation, McInerney argued that denial of a legal right causes harm "distinct from any actual or measurable damage." The panel disagreed. "In civil actions, the general rule is that a plaintiff must prove the defendant's wrongful act caused harm," Chavez wrote.

The opinion compared a consumer-reporting statute, Civil Code section 1786.50, which entitles a consumer to $10,000 or actual damages, whichever is greater. "The Legislature made no such provision for statutory penalties or damages in the FCA," the court wrote. McInerney did not challenge the jury's findings.

The panel also upheld the pretrial ruling on retaliation. The Fair Employment and Housing Act protects people who oppose practices they reasonably believe the law forbids, and the court held that McInerney's e-mails objected to conduct the law allows. "Nothing in the FEHA prohibits an employer from relying on a 14-year-old conviction in determining an employee is ineligible for a position," Chavez wrote.

Drawing on federal decisions under Title VII of the Civil Rights Act of 1964, the court gave a second, independent reason. "Appellant's hostile communications with UCLA staff went beyond reasonable opposition activity," the opinion said, and conduct of that kind "falls outside of the protection of FEHA."

The court affirmed the judgment and ordered each side to bear its own costs on appeal.

Lawyers for McInerney included Jenny D. Baysinger of Mayall Hurley. The regents were represented by Karen M. Bray of Horvitz & Levy.