(f) It is unlawful for an employer or other covered entity to use an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy) that discriminates against an applicant or employee or a class of applicants or employees on a basis protected by the Act, subject to any available defense. Relevant to any such claim or available defense is evidence, or the lack of evidence, of anti-bias testing or similar proactive efforts to avoid unlawful discrimination, including the quality, efficacy, recency, and scope of such effort, the results of such testing or other effort, and the response to the results.

(c) Preservation of Records. Any personnel or other employment records created or received by any employer or other covered entity dealing with any employment practice and affecting any employment benefit of any applicant or employee shall be preserved by the employer or other covered entity for a period of four years from the date of the making of the record or the date of the personnel action involved, whichever occurs later. This includes all applications, personnel records, membership records, employment referral records, selection criteria, automated-decision system data, and other records created or received by the employer or other covered entity dealing with any employment practice and affecting any employment benefit of any applicant or employee.

(2) Prohibited Recruitment Practices. An employer or other covered entity shall not, unless pursuant to a permissible defense, engage in any recruitment activity, including but not limited to practices accomplished through the use of an automated-decision system, that: (A) Restricts, excludes, or classifies individuals on a basis enumerated in the Act; (B) Expresses a preference for individuals on a basis enumerated in the Act; or (C) Communicates or uses advertising methods to communicate the availability of employment benefits in a manner intended to discriminate on a basis enumerated in the Act.

(1) Limited Permissible Inquiries. An employer or other covered entity may make any pre-employment inquiries that do not discriminate on a basis enumerated in the Act. Inquiries, including but not limited to inquiries made through the use of an automated-decision system, that directly or indirectly identify an individual on a basis enumerated in the Act are unlawful unless made pursuant to a permissible defense.

(3)(A) The use of online application technology that limits, screens out, ranks, or prioritizes applicants based on their schedule may discriminate against applicants based on their religious creed, disability, or medical condition. Such a practice having an adverse impact is unlawful unless job-related and consistent with business necessity and the online application technology includes a mechanism for the applicant to request an accommodation. (5) Automated-Decision Systems. The use of an automated-decision system that, for example, measures an applicant's skill, dexterity, reaction time, and/or other abilities or characteristics may discriminate against individuals with certain disabilities or other characteristics protected under the Act. To avoid unlawful discrimination, an employer or other covered entity may need to provide reasonable accommodation to an applicant as required by Article 8 (religious creed) or Article 9 (disability) of these regulations.

(a) Selection and Testing. Any policy or practice of an employer or other covered entity that has an adverse impact on employment opportunities of individuals on a basis enumerated in the Act is unlawful unless the policy or practice is job-related and consistent with business necessity (business necessity is defined in section 11010(b)). The Council herein adopts the Uniform Guidelines on Employee Selection Procedures promulgated by various federal agencies, including the EEOC and Department of Labor. [29 C.F.R. 1607 (1978)]. (d)(1) Automated-Decision Systems. An automated-decision system that, for example, analyzes an applicant's tone of voice, facial expressions or other physical characteristics or behavior may discriminate against individuals based on race, national origin, gender, disability, or other characteristics protected under the Act. To avoid unlawful discrimination, an employer or other covered entity may need to provide reasonable accommodation to an applicant as required by Article 8 (religious creed) or Article 9 (disability) of these regulations. (e) Permissible Selection Devices. A testing device, automated-decision system, or other means of selection that is facially neutral, but that has an adverse impact (as defined in the Uniform Guidelines on Employee Selection Procedures (29 C.F.R. 1607 (1978))) upon persons on a basis enumerated in the Act, is permissible only upon a showing that the selection practice is job-related and consistent with business necessity (business necessity is defined in section 11010(b)).

(1) Prohibited consideration under this subsection includes, but is not limited to, inquiring about criminal history through an employment application, background check, or internet searches, or the use of an automated-decision system.

(b) The prohibited practices set forth in subsection (a) include any such practice conducted in whole or in part through the use of an automated-decision system.

(b) Discrimination based on an applicant's or employee's accent is unlawful unless the employer proves that the individual's accent interferes materially with the applicant's or employee's ability to perform the job in question. This prohibition also applies where such discrimination resulted, in whole or in part, from an employer's or other covered entity's use of an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy). (c) Discrimination based on an applicant's or employee's English proficiency is unlawful unless the employer is necessary to effectively fulfill the job duties of the position.) In determining business necessity in this context, relevant factors include, but are not limited to, the type of proficiency required (e.g., spoken, written, aural, and/or reading comprehension), the degree of proficiency required, and the nature and job duties of the position. This prohibition also applies where such discrimination resulted, in whole or in part, from an employer's or other covered entity's use of an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy). (m) It is unlawful for an employer or other covered entity to use an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy) that discriminates against an applicant or employee or a class of applicants or employees on the basis of national origin or a proxy of national origin, subject to any available defense. Relevant to any such claim or available defense is evidence, or the lack of evidence, of anti-bias testing or similar proactive efforts to avoid unlawful discrimination, including the quality, efficacy, recency, and scope of such effort, the results of such testing or other effort, and the response to the results.

(4) It is unlawful for an employer or other covered entity to use an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy) that discriminates against an applicant or employee or a class of applicants or employees on the basis of sex, subject to any available defense. Relevant to any such claim or available defense is evidence, or the lack of evidence, of anti-bias testing or similar proactive efforts to avoid unlawful discrimination, including the quality, efficacy, recency, and scope of such effort, the results of such testing or other effort, and the response to the results. (f) It is unlawful for an employer or other covered entity to use an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy) that discriminates against an applicant or employee or a class of applicants or employees on the basis of sex or any basis prohibited in subsections in (a) through (e) of this section, subject to any available defense. Relevant to any such claim or available defense is evidence, or the lack of evidence, of anti-bias testing or similar proactive efforts to avoid unlawful discrimination, including the quality, efficacy, recency, and scope of such effort, the results of such testing or other effort, and the response to the results.

(b) It is unlawful for an employer or other covered entity to use an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy) that discriminates against an applicant or employee or a class of applicants or employees on the basis of pregnancy or perceived pregnancy, subject to any available defense. Relevant to any such claim or available defense is evidence, or the lack of evidence, of anti-bias testing or similar proactive efforts to avoid unlawful discrimination, including the quality, efficacy, recency, and scope of such effort, the results of such testing or other effort, and the response to the results.

(J) use an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy) that discriminates against an applicant or employee or a class of applicants or employees on the basis of pregnancy or perceived pregnancy, subject to any available defense. Relevant to any such claim or available defense is evidence, or the lack of evidence, of anti-bias testing or similar proactive efforts to avoid unlawful discrimination, including the quality, efficacy, recency, and scope of such effort, the results of such testing or other effort, and the response to the results; or

(a) Impermissible Inquiries. It is unlawful to ask an applicant to disclose their marital status as part of a pre-employment inquiry, including an inquiry made through the use of an automated-decision system, unless pursuant to a permissible defense.

(b) It is unlawful for an employer or other covered entity to use an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy) that discriminates against an applicant or employee or a class of applicants or employees on the basis of religion, subject to any available defense. Relevant to any such claim or available defense is evidence, or the lack of evidence, of anti-bias testing or similar proactive efforts to avoid unlawful discrimination, including the quality, efficacy, recency, and scope of such effort, the results of such testing or other effort, and the response to the results.

(a)(2) It is unlawful to advertise or publicize, including but not limited to through the use of an automated-decision system, an employment benefit in any way that discourages or is designed to discourage applicants with disabilities from applying to a greater extent than individuals without disabilities. (b)(2) Prohibited Inquiries. It is unlawful to ask general questions on disability or questions likely to elicit information about a disability in an application form, automated-decision system, or pre-employment questionnaire or at any time before a job offer is made. Examples of prohibited inquiries are: [list of examples]

(e) As used in this article, "medical or psychological examination" (a term that is defined in section 11065 of these regulations) or a disability-related inquiry includes any such examination or inquiry administered through the use of an automated-decision system. Such examination or inquiry may include a test, question, puzzle, game, or other challenge that is likely to elicit information about a disability.

(1) In general. It is unlawful for an employer or other covered entity to use a qualification standards, employment tests, proxy, or other selection criteria — including but not limited to those administered through the use of an automated-decision system — that screens out, tends to screen out, or otherwise has an adverse impact on an applicant or employee with a disability or a class of applicants or employees with disabilities, on the basis of disability. However, such standards, tests, or other selection criteria, as used by the employer or other covered entity, is not unlawful under this subsection when job-related for the position in question, and there is no less discriminatory standard, test, or other selection criteria that serves the employer's goals as effectively as the challenged standard, test, or other selection criteria. (2) Qualification Standards and Tests Related to Uncorrected Vision or Uncorrected Hearing. An employer or other covered entity shall not use a qualification standards, employment tests, proxy, or other selection criteria — including but not limited to those administered through the use of an automated-decision system — that discriminates against an applicant or employee based on uncorrected vision or uncorrected hearing. However, such standards, tests, or other selection criteria, as used by the employer or other covered entity, is not unlawful under this subsection when job-related for the position in question, and there is no less discriminatory standard, test, or other selection criteria that serves the employer's goals as effectively as the challenged standard, test, or other selection criteria. (3) An employer or other covered entity shall not make use of any testing criterion, including but not limited to through the use of an automated-decision system, that discriminates against applicants or employees with disabilities, unless: (A) the test score or other selection criterion used is shown to be job-related for the position in question; and (B) an alternative job-related test or criterion that does not discriminate against applicants or employees with disabilities is unavailable or would impose an undue hardship on the employer.

(a) Employers. Discrimination on the basis of age may be established by showing that a job applicant's or employee's age of 40 or older was considered in the denial of employment or an employment benefit. There is a presumption of discrimination whenever a facially neutral practice, including but not limited to the use of an automated-decision system, has an adverse impact on an applicant(s) or employee(s) age 40 or older, unless the practice is job-related and consistent with business necessity as defined in section 11010(b). In the context of layoffs or salary reduction efforts that have an adverse impact on an employee(s) age 40 or older, an employer's preference to retain a lower paid worker(s), alone, is insufficient to negate the presumption. The practice may still be impermissible, even where it is job-related and consistent with business necessity, where it is shown that an alternative practice could accomplish the business purpose equally well with a lesser discriminatory impact.

(b) Pre-employment Inquiries. Unless age is a bona fide occupational qualification for the position at issue, pre-employment inquiries that would result in the direct or indirect identification of persons on the basis of age, including, but not limited to, inquiries made through the use of an automated-decision system, are unlawful. Examples of prohibited inquiries are requests for age, date of birth, or graduation dates, except where age is a bona fide occupational qualification. This provision applies to oral and written inquiries and interviews. (c)(1) Subsection (c) prohibits the use of online job applications that require entry of age in order to access or complete an application, or the use of drop-down menus that contain age-based cut-off dates or utilize automated selection criteria or algorithms that have the effect of screening out applicants age 40 and older. Use of online application technology or an automated-decision system that limits or screens out older applicants is discriminatory unless age is a bona fide occupational qualification. (See section 11010(a).)

(g) It is unlawful for an employer or other covered entity to discriminate against an applicant or employee because they hold or present a driver's license issued under section 12801.9 of the Vehicle Code. This prohibition also applies where such discrimination resulted, in whole or in part, from an employer's or other covered entity's use of an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy).

(h) Citizenship requirements. Citizenship requirements that are a pretext for discrimination or have the purpose or effect of discriminating against applicants or employees on the basis of national origin or ancestry are unlawful, unless pursuant to a permissible defense. This prohibition also applies where such discrimination resulted, in whole or in part, from an employer's or other covered entity's use of an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy).

(5) An employer or other covered entity shall select and administer tests concerning employment so as to ensure that, when administered to any applicant or employee, including an applicant or employee with a disability, the test results accurately reflect the applicant's or employee's job skills, aptitude, or whatever other criteria the test purports to measure, rather than reflecting the applicant's or employee's disability, except those skills affected by disability are the criteria that the tests purport to measure. Tests concerning employment include, but are not limited to, those administered through the use of an automated-decision system. To accomplish this end, reasonable accommodation shall be made in testing conditions.

(F) Alternate tests or individualized assessments may be necessary where test modification is inappropriate. Competent expert advice may be sought before attempting such modification since the validity of the test may be affected. The use of an automated-decision system, in the absence of additional process or actions, does not constitute an individualized assessment.