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In McInerney v. Regents of the University of California, a lengthy and instructive opinion, the California Court of Appeal affirmed a judgment in favor of UCLA on a rejected job applicant’s claims under the Fair Employment and Housing Act (FEHA) and the Fair Chance Act (FCA).
The Court offered guidance on how far an applicant or employee can go in belligerent communications with colleagues and still claim the protection of FEHA. The Court also addressed employers’ obligations under the FCA, confirming that the law requires employers to follow certain steps before rejecting an applicant based on criminal history, but does not allow courts to second-guess the hiring decision itself. The Court also held that an applicant who shows the employer skipped a step must still prove the misstep actually caused him harm.
FCA Background
Enacted in 2017 and effective in 2018, the California Fair Chance Act (Government Code section 12952) governs how employers may use criminal history in hiring.
As a general rule, employers may not ask about or consider an applicant’s conviction history until after making a conditional offer of employment. If a background check then reveals a conviction, the employer must make an individualized assessment of whether the conviction has a “direct and adverse relationship” with the specific duties of the job, considering the nature and gravity of the offense, the time that has passed, and the nature of the job.
If the employer is considering rescinding the offer, it must notify the applicant in writing and give the applicant at least five business days to respond, including with evidence of rehabilitation or mitigating circumstances, before making a final decision.
Los Angeles has similar rules, which we previously wrote about here. Importantly, while the FCA permits, but does not require, employers to put the individualized assessment in writing, Los Angeles requires a written assessment and, if the applicant responds, a written reassessment.
The Applicant's Criminal History
John “Jack” McInerney had four drug convictions between 2005 and 2007, including two for felony possession for sale, the last of which resulted in a two-year prison sentence.
In September 2021, McInerney, then a UCLA student in his mid-60s, applied for an office assistant position in UCLA’s Graduate Student Resource Center, a student-facing role. On October 5, he received a conditional offer contingent on “satisfactory completion of a background check,” and he began working part-time while the check was pending.
Removal From The Schedule
On November 23, 2021, HR told McInerney’s supervisor, Andrew McClure, to take him off the schedule until the background check cleared. When McClure relayed this, McInerney insisted he had been “fired.” The next day, he e-mailed McClure with the subject line “I need a reason why,” further stating that he “decided to go to a lawyer” and that “[t]he HR assholes better have a good reason why they harmed me.”
The Background Check and Notice
Delayed by a post-pandemic backlog, the background check came back on January 4, 2022, revealing the convictions. The next day, HR notified McInerney that his record “may” disqualify him and gave him “five (5) business days” to respond, including with “evidence of rehabilitation or mitigating circumstances.”
The E-mails to HR
McInerney submitted no such evidence. Instead, he sent HR a series of hostile e-mails, including:
January 6: “No one should be allowed to stop someone from working especially without giving them a reason, this is not North Korea.”
January 6: “[t]he corrupt [] cop who arrested me put in the motel room, stole my money and put the drugs on me… You were wrong to stop me from working . . .. it still bothers me that you abused your power to harm a harmless man. How do people like you sleep at night? You probably got a promotion.”
January 7: “Here’s the problem that I have with what you did to me, no person, nowhere, know how, should tell another person they can’t work for something that happened 14 years ago, that is insane, you are witch hunters and like the great Inquisition you seek to destroy lives. If you don’t want to apologize I understand that because you are part of the structural violence and are haters”
The Disqualification
On January 7, 2022, the HR analyst forwarded the e-mails to her supervisor, Anthony Solana, describing McInerney as:
“… belligerent and very unprofessional in his emails to me … as well as with his supervisor and departmental HR (see attached emails where he calls HR ‘assholes’). I am not sure his response makes total sense, and this is a student-facing position.”
Solana declined to clear him, and HR told McInerney that same day, just two business days into his five-day window, that he was ineligible for the position.
McInerney’s Lawsuit
McInerney sued UCLA, asserting claims for violation of the FCA, retaliation, and failure to prevent retaliation (he later dropped an age discrimination claim). The trial court granted UCLA summary adjudication on the retaliation claims, finding McInerney had not made “a complaint about violations of the law” - rather, UCLA had invited him to explain why it should not refuse to hire him - and could not show a causal connection.
On the FCA claim, the court found UCLA had properly conducted the required individualized assessment in every respect but one: it did not give McInerney the full five business days to respond. The court ruled, however, that McInerney had to show this error cost him the job, and that question went to a jury. At trial, UCLA argued its decision was driven primarily by McInerney’s hostile e-mails.
The jury found that UCLA’s decision was not based solely on his criminal history and that his record was not a substantial factor. It also found that, although UCLA could not prove McInerney would not have submitted rehabilitation evidence given the full five days, UCLA would have made the same decision regardless. The court entered judgment for UCLA.
The Court of Appeal Affirmed the Trial Court’s Rulings
Retaliation
To establish a FEHA retaliation claim, a plaintiff must first show he engaged in protected activity.
An employee’s activity can be protected “when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.” In other words, the question is not whether the conduct actually violated FEHA, but “the reasonableness of the employee’s belief that he was opposing a practice prohibited by the FEHA.”
Applying that standard, the Court of Appeal held McInerney’s retaliation claim failed because:
- Nothing in FEHA prohibits an employer from relying on a 14-year-old conviction to find an applicant ineligible, and the FCA expressly permits background checks; and
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McInerney’s e-mails did not demonstrate an objectively reasonable belief that UCLA was acting unlawfully; they never mentioned the background check process or claimed UCLA had violated the FCA. As the Court put it, “Appellant’s subjective perception that UCLA’s action was discriminatory will not prevail on a claim under FEHA.”
The Court identified a second, independent reason the claim failed: McInerney’s “hostile communications with UCLA staff went beyond reasonable opposition activity,” “berating and demeaning his potential future colleagues.” Those e-mails “were not protected under FEHA, and constituted legitimate, nondiscriminatory reasons for UCLA’s failure to hire appellant.”
FCA
The Court of Appeal concluded that UCLA conducted the required individualized assessment. Notably, UCLA never completed a written assessment (its internal form was left largely blank), but the Court explained that the FCA does not require the assessment to be memorialized in writing, and the evidence showed it was performed.
Importantly, McInerney also argued that his 14-year-old drug convictions had no “direct and adverse” relationship to an office assistant job.
The Court declined to weigh in, holding that the FCA “as a whole, [does] not permit a court or jury to second-guess an employer’s individualized assessment.” The statute requires employers to follow a process, but it does not require them to hire an applicant even if no direct and adverse relationship exists.
As the Court put it, “While we review claims that employers have violated the statute, we decline to consider whether the employer reached an incorrect conclusion when considering whether a direct and adverse relationship exists.”
The Five-Day Rule
Finally, UCLA violated the FCA by disqualifying McInerney before the required five business days had run. But the Court held that a procedural violation alone does not entitle an applicant to damages; he must show the violation actually caused him harm. Unlike some other statutes, the FCA does not provide for statutory penalties or damages, and here the jury found UCLA would have made the same decision even with the full five days.
Conclusion
While this decision is good news for employers, there are a few takeaways to consider:
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Put the Assessment in Writing: Although the FCA does not require a written assessment, some local jurisdictions, such as the City and County of Los Angeles, do. Even where it is not required, documenting the assessment is good practice. UCLA prevailed without one only because testimony and contemporaneous e-mails showed the assessment took place; a written record makes that showing far easier.
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Complete the Background Check Before the Applicant Starts Work: The Court noted that UCLA acted lawfully in pulling McInerney from the schedule until his background check was complete. Still, letting an applicant start working before the check clears invites trouble: when the employer later pulls the applicant off the schedule, the applicant may view it as a termination, as McInerney did, and the dispute can escalate from there.
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Be Mindful of Changes: The Legislature and California agencies sometimes amend statutes or issue new regulations to close what they view as gaps exposed by a court decision. In response to this ruling, lawmakers or regulators may require a written assessment or turn the “direct and adverse relationship” standard into a substantive limit on when employers may deny employment, as some other states, including New York and Minnesota, already do.
Employers considering withdrawing job offers, should proceed carefully. Contact employment defense counsel to evaluate the situation.
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