WORK WITH US
POST to Miss Deadline to Issue Bias Screening Regulations Pursuant to AB 846; Recommends Agencies Use Framework to Comply with Statutory Obligations in the Interim
On September 30, 2020, Governor Gavin Newsom signed AB 846 requiring, among other things, that the Commission on Peace Officer Standards and Training (POST) update the regulations regarding pre-employment screening for mental and emotional conditions to also identify explicit and implicit biases toward race or ethnicity, gender, nationality, religion, disability, or sexual orientation, by January 1, 2022. After consulting with a panel of subject matter experts including psychological evaluators, background investigators, law enforcement representatives, and other interested groups, POST announced proposed regulations requiring use of a “Bias Assessment Framework” in hiring of peace officers on September 1, 2021. On December 16, 2021, POST announced that the Office of Administrative Law had not approved the regulations and that it would work to address the issues raised in a public comment letter that incorporated the Framework but recommended additional requirements.
In the interim, POST recommends that agencies utilize the updated Peace Officer Psychological Screening Manual and Background Investigation Manual, which it will publish in January, and which will incorporate the Framework. These Manuals will not have binding force, but will aid agencies in complying with their obligation under Government Code section 1031 to only hire peace officers who are found to be free of bias against the listed protected characteristics.
Bias Assessment Framework
After consulting with a panel of subject matter experts including psychological evaluators, background investigators, law enforcement representatives, and other interested groups, POST announced a “Bias Assessment Framework” that will eventually be mandatory for agencies to consider in hiring of peace officers.
The Framework identifies three so-called “constructs” to be evaluated (Biased Behaviors, Biased Attitudes, and Bias-Relevant Traits & Attributes) to be assessed using three data sources (Background & Personal History, Written Instruments, and Psychological Interview).
- Biased Behaviors
The Framework requires that this construct be evaluated based on the background investigation of the applicant, and states that these investigation “should include a broad range of diverse references and developed references including workplace (e.g., supervisors, co-workers), family members, neighbors, close personal relationships, social and family friends, teachers, military colleagues, and other contacts.” This construct is also to be examined by use of responses to the written personal history questionnaire and the psychological interview.
In addition to evaluating any biased behavior in a candidate’s history, the Framework also requires consideration of mitigating or protective factors evidence appearing in the candidate’s background investigation or psychological interview (but not in the questionnaire responses.) Thus, the fact that a candidate has exhibited biased behavior in his or her past will not necessarily be disqualifying if there is evidence he or she has changed and would not be likely to engage in such behaviors in the exercise of peace officer powers.
- Biased Attitudes
Ever since enactment of AB 846, one of the biggest questions has been whether the anticipated regulations would require agencies to use an implicit bias test such as the controversial Harvard University Implicit Association Test (IAT) as part of the screening process. The answer is maybe. The Framework does not use any written instruments in the assessment of the Biased Attitudes construct, specifically stating, “Published measures of biased attitudes are available but have not been validated for personnel selection.” However, the Framework continues, “They may be useful in the context of the psychological interview.” Thus, while these tests are not to be used on a standalone basis, psychological evaluators will have discretion to use them.
Biased Attitudes, as distinguished from Biased Behaviors, are not assessed on the basis of the background investigation. As noted above, written instruments can only be used as part of the psychological interview. As such, the interview is the only real data source for evaluating the presence of biased attitudes. Psychological evaluators are to both assess biased attitudes and attitudes in opposition to bias against the relevant protected classes.
- Bias-Relevant Traits and Attributes
The third construct is something of an undefined catch-all, and the Framework specifically provides, “When there is clear and direct evidence of unmitigated biased behaviors or attitudes, other factors are not relevant for assessing the bias of a peace officer candidate. However, when direct evidence of explicit or implicit bias is unavailable, ambiguous, it may be useful to consider related factors[.]” These factors, therefore, will only apply to those candidates for whom there is not current evidence of biased behaviors or attitudes.
What are these traits and attributes? The Framework lists “related factors such as neutral or favorable intergroup contact, motivations to respond without prejudice, perceptions of social norms about prejudice, and executive function.” It appears these factors are intended as mitigating factors in the face of unclear evidence of bias, as the Framework continues, “[t]hese factors also generally contribute to more equitable behavior and fair treatment of others, and thus can mitigate tendencies to act in discriminatory ways even when some evidence of bias is detected.”
DOJ’s RIPA Board Comment Letter
The Office of the Attorney General’s Racial and Identity Profiling Advisory (RIPA) Board submitted a comment letter recommending additional requirements be included in the final regulations.
- Mandatory Assessment of Candidate Social Media Activity
Although the Framework allows consideration of social media postings as “aggravating or facilitative factors” that may be considered, it does specifically require social media searches as part of the assessment of a candidate. Noting the fact that information probative of bias can frequently been found on applicants’ public social media posts, RIPA asked that this consideration be made mandatory.
- Mandatory Express, Detailed Findings
POST’s proposed regulation would require that background investigators and psychological evaluators use the Framework to assess the three above “constructs” but does not specifically require their assessments to document specific findings as to each construct. The RIPA letter recommends that the evaluators be required to specify findings as to each construct, including stating which data sources or facts were relied on in making this determination.
AB 846 is part of increasing legislative efforts to eliminate bias in policing. Agencies should work with their trusted legal advisors to ensure compliance with AB 846 and the forthcoming implementing regulations, whatever form they may ultimately take.