Section 12266 - Establishing a Legally Sufficient Justification Relating to Criminal History Information(a) Respondents can show that there is no violation of the Act if there is a legally sufficient justification for a practice of seeking, considering or using criminal history information that has a discriminatory effect. To show that a legally sufficient justification exists, respondents must establish that the practice complies with this article and meets all of the elements of a legally sufficient justification, as set forth in this section and in subsections 12062 (c) and (d).(b) Business establishment: A business establishment as defined in section 12005(f) whose practice has a discriminatory effect shall not be considered to have committed an unlawful housing practice in violation of the Act if the business establishment can establish that:(1) The practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory business interests, such as the safety of its residents, employees, or property;(2) The practice effectively carries out the identified business interest. This element requires that the practice seek, consider, and use only criminal history information regarding directly-related convictions, as defined in Section 12005(k), and subject to Section 12269. In determining whether a criminal conviction is directly-related, a practice should include consideration of the nature and severity of the crime and the amount of time that has passed since the criminal conduct occurred as provided in criminal history information. For example, a ten-year-old misdemeanor conviction for a driving offense would not likely be directly-related to fulfilling financial obligations because there is no rational relationship between the violation and the identified business interest. In contrast, a recent criminal conviction for residential arson could be directly-related to the risk that an individual may injure other residents or property because there is a rational relationship between recently committing residential arson and injuring residents or property; and(3) There is no feasible alternative practice that would equally or better accomplish the identified business interest with a less discriminatory effect.(c) Non-Business establishment: In cases that do not involve a business establishment, the person whose practice has a discriminatory effect shall not be considered to have committed an unlawful housing practice in violation of the Act if the person can establish that: (1) The practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory purposes of the non-business establishment;(2) The practice effectively carries out the identified purpose. This element requires that the practice seek, consider, and use only criminal history information regarding directly-related convictions, as defined in Section 12005(k) and subject to Section 12269. In determining whether a criminal conviction is directly-related, a practice should include consideration of the nature and severity of the crime and the amount of time that has passed since the criminal conduct occurred as provided in criminal history information;(3) The identified purpose is sufficiently compelling to override the discriminatory effect; and(4) There is no feasible alternative practice that would equally or better accomplish the identified purpose with a less discriminatory effect.(d) The determination of whether there is a feasible alternative practice that would equally or better accomplish the identified purpose with a less discriminatory effect is a fact-specific and case-specific inquiry and will depend on the particulars of the criminal history information practice under challenge. In making that determination, the following factors must be taken into consideration: (1) Whether the practice provides the individual: (A) an opportunity to present individualized, mitigating information either in writing or in person; and(B) written notice of the opportunity to present mitigating information;(2) Whether the practice requires consideration of the factual accuracy of the criminal history information, meaning it does not contain outdated, incorrect, or falsified information or information that is erroneously attributed to the individual being considered;(3) Whether the practice requires consideration of mitigating information in determining whether to take an adverse action;(4) Whether the practice delays seeking, considering, or using a third party report of criminal history information until after an individual's financial and other qualifications are verified;(5) Whether the practice includes providing a copy or description of a person's policy on the use of criminal history information to an individual upon request; or(6) Any other factor that the court considers relevant to the determination.(e) Mitigating information means credible information about the individual that suggests that the individual is not likely to pose a demonstrable risk to the achievement of the identified interest. Credible information is information that a reasonable person would believe is true based on the source and content of the information. Mitigating information includes: (1) Whether the individual was a minor or young adult at the time of the conduct upon which the criminal conviction is based;(2) The amount of time that has passed since the date of conviction;(3) Evidence that the individual has maintained a good tenant history before and/or after the conviction;(4) Evidence of rehabilitation efforts, including a person's satisfactory compliance with all terms and conditions of parole and/or probation; successful completion of parole, probation, mandatory supervision, or Post Release Community Supervision; a Certificate of Rehabilitation under Penal Code section 4852.01; or other conduct demonstrating rehabilitation, such as maintenance of steady employment;(5) Whether the conduct arose from the individual's status as a survivor of domestic violence, sexual assault, dating violence, stalking, or comparable offenses against the individual;(6) Whether the conduct arose from the individual's disability, or any risks related to such conduct, which could be sufficiently mitigated or eliminated by a reasonable accommodation; or(7) Other relevant facts or circumstances surrounding the criminal conduct and/or conduct after the conviction.Cal. Code Regs. Tit. 2, § 12266
1. New section filed 9-16-2019; operative 1-1-2020 (Register 2019, No. 38). Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12927, 12955 and 12955.8, Government Code.
1. New section filed 9-16-2019; operative 1/1/2020 (Register 2019, No. 38).