California Limits Employers’ Discretion to Insist on a Driver’s License

Starting in January 2025, California’s Fair Employment and Housing Act (FEHA) will prohibit employers from including a statement in their employment materials that an applicant must have a driver’s license unless the employer “reasonably” anticipates driving to be an essential job function that cannot be comparably performed by alternative means. The stated purpose of the new FEHA amendment is to help facilitate employment for nondrivers who rely on ride hails, public transportation, biking, and walking as their primary means of transportation.

Background

California law prohibits employers from discriminating against an individual without a standard driver’s license. A nonstandard driver’s license (commonly known as an “AB 60 driver’s license”) is available for individuals who are unable to provide proof of legal presence in the United States but who meet the California Department of Motor Vehicles’ requirements and are able to provide proof of identity and California residency. 

Senate Bill 1100 Enacted

On Sept. 28, Gov. Gavin Newsom signed legislation (Senate Bill 1100) that adds protections for individuals without any driver’s license at all. SB 1100 further amends the FEHA to prohibit discrimination in the hiring process based on the applicant’s lack of a driver’s license. According to the author of the bill, California State Sen. Anthony Portantino, the amendment helps facilitate employment for nondrivers who rely on ride-hailing, public transportation, biking, and walking as their primary means of transportation. Such nondrivers include those without the financial means to own or lease and maintain a car, and individuals with physical impairments, such as blindness, that prevent them from being able to obtain a license to drive.

The amended FEHA prohibits employers from including a statement in job advertisements, postings, applications, or other materials that an applicant must have a driver’s license unless the employer “reasonably,” 1) expects driving to be one of the job functions for the position, and 2) believes that satisfying the job function using an “alternative form of transportation” would not be comparable in travel time or cost to the employer. Alternative forms of transportation include but are not limited to using a ride-hailing service, using a taxi, carpooling, bicycling, and walking.

Employers must be mindful of the amended FEHA when drafting job advertisements, postings, applications, and comparable pre-employment documents. When drafting such documents, employers covered by the Los Angeles County Fair Chance Ordinance should also be mindful of the requirements in the ordinance for job solicitations, bulletins, postings, announcements, and advertisements.

Rod M. Fliegel is an attorney with Littler in San Francisco. © 2024 Littler. All rights reserved. Reposted with permission.