Proposed Regulation on Applicant Inquiries

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On January 17, 2017, the Department of Fair Employment and Housing Council will consider adopting new regulations regarding the discriminatory effect, discriminatory land use practice and use of criminal history information when renting residential real property.

If that has not gotten your attention, then consider the impact of the following regulatory proposal:

“Any Practice of a Person or Owner that includes the use of, inquiries about, or solicitation of information about criminal history is unlawful if it has a discriminatory effect under Article 5 and Government Code section 12955.8.”

The proposed regulation may bar property owners and managers from inquiring about an applicant’s criminal history. If that language does not get your attention, then consider the next three proposed regulations:

  1. “A notice, advertisement, application, or other written or oral statement regarding criminal history or criminal records that conflicts with the provisions of this Article and Article 5 shall be a violation of the Act.”
  2. “Overbroad or arbitrary inquiries into or use of criminal history information in housing may have a discriminatory effect on members of Protected Classes. A discriminatory effect may be established through the use of conviction statistics or by any other evidence (emphasis added) that establishes a discriminatory effect.”
  3. “State or national level statistics showing substantial disparities in the conviction records of individuals based on membership in a Protected Class are presumptively sufficient to establish a discriminatory effect of a Practice under Article 5.”


Property owners and managers will find that they may never be able to consider an applicant’s history. The regulations try to mitigate the above mentioned regulations by permitting a property owner or manager to make inquiries of the applicant if certain prongs of a legally sufficient justification are met. To do that, the property owner and manager must:

  1. “Identify a specific substantial, legitimate, nondiscriminatory interest to support the Practice, such as a risk to the safety of its residents.” Owners cannot predict the future.
  2. “Take into account the nature and severity of an individual’s conviction and the amount of time that has passed since the criminal conduct occurred.” Property owners big and small will be required to hire experts to make recommendations regarding each applicant.
  3. “Limit consideration to convictions that are directly related to the individual’s capacity and likelihood of fulfilling the obligations related to the housing or services” (conviction of a burglary versus an alcohol related offense). Once again, property owners will find it extremely difficult to meet this burden.
  4. “Prove that its Practice actually achieves the identified interest, which includes proving that its Practice accurately distinguishes between criminal conduct that poses a demonstrable risk to its proffered interest and criminal conduct.” The shift of the burden of proof is squarely on the property owner and manager which this also forces quantifiable proof by each owner and manager for each applicant to rent real property.


To make sure that we understand the totality of the proposed regulations, the following should be of great concern: “Practices with a Discriminatory Effect [that are] Prohibited … A Practice [that] has a discriminatory effect where it actually or predictably results in a disparate impact on an individual or group of individuals or creates, increases, reinforces, or perpetuates segregated housing patterns because of membership in a Protected Class.”

The language applies to every decision a property owner makes regarding the rental of real property.

Yes, of course, this may challenge the decision in Harris v Capitol Growth Investors XIV (1991) 52 Cal.3d 1142, 278 Cal.Rptr. 614; 805 P.2d.873 regarding economic discrimination which held in pertinent part that property owners and managers can set reasonable credit standards.

This is just one of several DFEH Council proposedregulations. Are you interested in finding the outcome?If so, we hope you join the Association orremain an active member.

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