Unlawful Driver’s License Discrimination

May 15, 2020
By Haeggquist & Eck

California law forbids several forms of driver’s license discrimination.

Can an Employer Require a Driver License?

As a general matter, employers cannot require a driver’s license as a condition of employment. In more specific contexts, employers and other businesses that cater to the public cannot discriminate against Californians who hold driver’s licenses that have been issued notwithstanding the licensee’s inability to prove citizenship or other lawful residence in the United States, or whose driver’s licenses accurately reflect their gender identity.

General Prohibition on Driver’s License Discrimination

In general, your employer may not require you to possess or present a valid driver’s license as a condition of employment. Employers may ask for a valid driver’s license if state or federal law otherwise requires one; and an employer may have a policy of requiring a driver’s license, but only if it applies the policy uniformly, and if having a license is related to a legitimate business purpose.

Driver’s License Discrimination as a Form of National Origin Discrimination

In the more specific context of national origin discrimination, under Section 12801.9 of the Vehicle Code, the Department of Motor Vehicles must issue an original driver’s license to an otherwise qualified applicant even if the applicant cannot prove his or her presence in the United States is authorized under federal law. The same law makes it illegal to discriminate against a person who “holds or presents” such a license.

Under California’s Fair Employment and Housing Act (“FEHA”), “national origin” discrimination includes but is not limited to, discrimination on the basis of possessing a driver’s license granted under Section 12801.9. Thus, assuming an employer could lawfully require an employee to have a valid driver’s license—subject to the general caveats that prevent employers from indiscriminately requiring licenses—the employer cannot refuse to accept a license issued under Section 12801.9, or otherwise treat an employee differently because he or she has such a license.

Even more broadly, the Unruh Civil Rights Act prevents businesses that are open to the public from discriminating against anyone who holds a driver’s license issued under Section 12801.9. The Unruh Act applies to businesses like bars, restaurants, and hotels; as well as landlords and real estate agents; and many other “business establishments.” It could be a violation of the Unruh Act for a covered business establishment to refuse service to a person holding a non-citizen driver’s license, or even to charge that person a different rate for goods or services.

Driver’s License Discrimination as a Form of Gender Discrimination

Beginning in January 2019, Californians could opt to select an “X” (instead of an “M” or an “F”) as a “gender nonbinary” marker on their driver’s licenses. It could be a violation of the FEHA or the Unruh Act if an employer or public business discriminated against a person who chose to have

an “X” driver’s license because California law broadly forbids discrimination on the basis of gender and gender identity.

Discrimination on any of these bases could be overt and easy to recognize, such as a car rental company refusing to rent a car to a person with an “X” or Section 12801.9 license. It could also be subtle and difficult to discern, such as where an employer refuses to hire a person who holds one of those licenses for a job where a license is a requirement, even though that person is the best qualified candidate.

How We Can Help

Whether or not an action is unlawfully discriminatory will depend on the facts and circumstances of a given situation. If you feel you have been discriminated against because of a failure to have a driver’s license, or because of what is on your driver’s license, contact an experienced attorney who can advise whether your rights have been violated.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!