Fair Housing
And Criminal
History
The Fair Employment and Housing Act prohibits discrimination against tenants or
homeowners based on various protected characteristics, such as race, national origin,
ancestry, disability, sexual orientation, marital status, and gender identity.
Housing providers sometimes check whether a person has a criminal history when
making a housing decision, such as whether to rent to an individual. While providers
have legitimate interests in screening potential tenants to determine if they can fulfill
their obligations as tenants, individuals with criminal histories face barriers to housing
even when their history bears no relationship to their ability to be responsible tenants.
New regulations from the Civil Rights Department (CRD) address when and how
housing providers may lawfully consider criminal histories, in order to protect against
unlawful discrimination. CRD is providing this guidance concerning the use of criminal
history by providers or operators of housing.
1
Which California laws apply to the use of criminal history by housing
providers?
California’s Fair Employment and Housing Act (FEHA) protects people from housing
discrimination based on protected characteristics including race, color, national origin, religion,
disability, gender, gender identity, familial status, veteran/military status, sexual orientation, and
source of income. Most housing providers are also covered by the Unruh Act, which prohibits
discrimination on the basis of immigration status, citizenship, and primary language, among
others. Having a criminal history is not in itself a protected characteristic under FEHA or the
Unruh Act. However, regulations that went into eect on January 1, 2020 implement FEHA
with respect to the use of criminal history in housing (California Code of Regulations, Title 2,
Sections 12264-12271).
2
When does a housing provider violate California law if they consider
someone’s criminal history?
A housing provider’s policy or practice regarding criminal history will violate California law
when it has an unjustified discriminatory eect on members of a protected class, even
when the provider had no intent to discriminate. In California as in the rest of the nation,
African Americans, Hispanics (or Latinos), and certain other groups face higher rates of
arrest, conviction, and incarceration than the general population. The use of criminal history
information in housing decisions can therefore have a disproportionate negative aect on
these protected groups.
In addition, a housing provider’s policy or practice regarding criminal history will violate
California law if it constitutes intentional discrimination on the basis of a protected
characteristic. For example, it is unlawful for housing providers to: use criminal history
screenings to intentionally exclude individuals because of their race, only run criminal
history screenings on certain racial groups, or treat individuals in dierent racial groups
dierently based on comparable criminal history information.
Additional information relevant to this question are provided in the FAQs below and
the regulations.
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Fair Housing And Criminal History
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3
Who must comply with California’s fair housing laws?
• Landlords
• Property management companies
• Homeowners associations
• Public housing authorities
• Real estate agents
• Home sellers
• Property insurers
• Builders
• Mortgage lenders
• Tenant screening companies
• Consumer reporting agencies
• Others
4
Can a housing provider advertise or indicate a blanket ban against
applicants with criminal records?
No. Housing providers cannot make any statement indicating a blanket ban on renting
to anyone with a criminal record. The law prohibits advertisements, screening policies
(oral or written), or statements with blanket bans such as “No Felons” or “We Don’t Allow
Criminals Here.” However, it is not unlawful for a housing provider to advertise or state
that it will run a lawful criminal history check.
5
May a housing provider lawfully check an applicant’s criminal history?
Yes. Generally, a housing provider may check the criminal history of an applicant,
although there are some types of criminal history information that providers may not
seek or consider (see FAQ 6 below). If a housing provider intends to deny someone
housing (or otherwise take an adverse action against someone) it must be based on a
past criminal conviction. And, the law requires the provider to follow certain guidelines,
which are set forth in the regulations (see FAQ 7 below). Most importantly, the conviction
the provider is concerned about must be a “directly-related conviction.” This means
a criminal conviction that has a direct and specific negative bearing on a substantial,
legitimate, and nondiscriminatory interest or purpose of the housing provider, such as
the safety of other residents, the housing provider’s employees, or the property.
In determining whether a criminal conviction is directly-related, a housing provider
should consider the nature and severity of the crime and the amount of time that has
passed since the criminal conduct occurred. For example, a ten-year-old misdemeanor
conviction for a driving oense 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.
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6
What types of criminal history information are a housing provider
prohibited from considering?
It is unlawful for a housing provider to seek or consider the following:
• Arrests that did not lead to a conviction;
• Information indicating that an individual has been questioned, apprehended,
taken into custody, detained, or held for investigation by law enforcement;
• Infractions;
• Referral to or participation in a pre-trial or post-trial diversion program or a
deferred entry of judgment program, unless the applicant oered this information
as mitigating information (see FAQ 8 below);
• Criminal convictions that have been sealed, dismissed, expunged, or otherwise
rendered legally inoperative, unless the applicant oered this information as
mitigating information (see FAQ 8 below); or
• Adjudications or matters processed in the juvenile justice system, unless pursuant
to an applicable court order or unless the applicant oered this information as
mitigating information (see FAQ 8 below).
7
If a housing provider would like to consider criminal history information
(aside from the prohibited information detailed in FAQ 6 above), what
should the provider’s policy or practice look like?
A housing provider may consider certain criminal history, but the provider’s policy or
practice should:
• Be narrowly tailored and focus on whether any criminal conviction is “directly-
related” (see FAQ 5 above);
• Provide an opportunity for applicants to present individualized, mitigating
information either in writing or in person if the housing provider is concerned
about an applicant’s past conviction;
• Provide written notice of the opportunity to all applicants to present mitigating
information if a housing provider is concerned about a past conviction;
• Consider the factual accuracy of the criminal history information of the applicant,
meaning the background report does not contain outdated, incorrect, or falsified
information or information that is erroneously attributed to the individual being
considered;
• Delay seeking, considering, or using a third-party report of criminal history
information until after an individual’s financial and other qualifications are verified;
• Provide a copy or description of the criminal history background check policy to
an applicant upon request; and
• Consider mitigating information in determining whether to rent to an applicant
with a past criminal conviction.
Fair Housing And Criminal History
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8
What is mitigating information?
Housing providers should consider mitigating information when considering an applicant’s
criminal history. Mitigating information means credible information about the applicant
that suggests that the applicant is not likely to pose a demonstrable risk to the health
and safety of others, the property, or other substantial, legitimate, and non-discriminatory
interest or purpose of the housing provider. Mitigating information must be credible
information that a reasonable person would believe is true based on the source and
content of the information.
Mitigation information includes but is not limited to:
• The age of the individual when the criminal conduct occurred;
• The amount of time that has passed since the date of conviction;
• Whether the conduct arose as a result of a disability;
• Whether the conduct arose from status as a survivor of domestic violence;
• Whether the individual has maintained a good tenant history before and/or after
the conviction;
• Whether there is evidence of rehabilitation eorts, including satisfactory
compliance with all terms and conditions of parole and/or probation; successful
completion of parole, probation, mandatory supervision, or post release community
supervision; and
• Other conduct demonstrating rehabilitation, such as maintenance of steady
employment.
9
May a housing provider rely on third parties to perform criminal
history checks?
Yes. However, it is not a defense for a housing provider to have relied on a third party’s
criminal history report if the use of the criminal history violates fair housing laws, and such
third parties are also subject to California’s fair housing laws. Housing providers that rely
on criminal histories prepared by third parties, such as consumer reporting agencies, may
wish to seek from the third party details on any criminal records discovered so that the
housing provider can make a lawful, individualized assessment. Furthermore, other laws
limit the extent to which consumer reporting agencies can report such information.
It is unlawful for these agencies to report records of an applicant’s arrest, indictment,
information, misdemeanor complaint, or conviction of a crime that, from the date of
disposition, release, or parole, are more than seven years old (California Civil Code
section 1785.13).
Where can I obtain more information?
Please see our website at calcivilrights.ca.gov/housing/providerresources for more
information and resources.
Fair Housing And Criminal History
NOVEMBER 2022 / CIVIL RIGHTS DEPARTMENT
