"Protected Class" Status


Granting previously convicted felons a “protected class” status under our discrimination laws captured the attention of our Association as soon as AB 396 (Jones-Sawyer) was introduced.

Soon after introduction, the bill was amended. It would have required landlords to adopt an artificial, lengthy, costly, burdensome and unprecedented five-step tenancy application process in order to fill any vacancy. When a rental unit became available, landlords would have no longer been able to fill their units and begin collecting rental income immediately.

Instead, landlords would have had to go through the following five phases:

Phase One: During the “initial application assessment phase,” tenants could be screened, but criminal history questions and background checks would have been off limits.

Phase Two: After the initial assessment phase, landlords would be allowed to ask about criminal history and perform a criminal background check.

Phase Three: Landlords then would have had to provide a written statement to any applicant they wished to deny tenancy, explaining their decision.

Phase Four: A landlord would then have to give any applicant who was denied tenancy 14 days to respond with evidence demonstrating the inaccuracy of a criminal record, or evidence of rehabilitation or mitigation.

Phase Five: If a landlord received a response from an applicant, the landlord would then have to delay making a final decision for a “reasonable period”, and reconsider their decision in light of the new information.

Only after going though these phases, a landlord would then have been permitted to deny tenancy based on criminal convictions.

AB 396 also proposed to create a new protected class by prohibiting landlords from denying tenancy for any of the following reasons: (1) an arrest not resulting in a conviction; (2) participation in, or completion of, a diversion or a deferral of judgment program; (3) a conviction that has been judicially dismissed, expunged, voided or invali dated; (4) any adjudication from the juvenile justice system; and (5) information pertaining to an offense other than a felony or misdemeanor.

The bill would have forced landlords to hold vacant units off the market for up to a month.

Proponents did not accept our reasons to oppose the measure which included:

  • Landlords are liable and subject to forfeiture and nuisance abatement laws for criminal activity on their property.
  • We have a duty to keep tenants and property safe.
  • We have a legitimate non-discriminatory purpose for checking the criminal background of prospective tenants and denying tenancy when they pose a threat.
  • Recidivism rate in our state is 65 percent... the California Department of Corrections and Rehabilitation reports that 65 percent of individuals who are incarcerated, are either arrested, convicted of new crimes or go back to prison within three years.
  • Recidivism rates predict the future of criminal behavior.
  • HUD requires landlords to deny tenancy to applicants who have committed certain crimes. HUD has a zero tolerance approach to preventing lifetime sex offenders from receiving federal assistance.
  • Criminal history is a fundamentally different character trait than those of current protected classes.

In the last iteration of the bill, or last amended version so to speak, the author agreed to amend the bill to delete reference to making previously convicted felons a “protected class” under our discrimination laws. The Department of Fair Employment and Housing would still have been given new investigation and enforcement authority to benefit convicted felons. Owners would not have been held liable to accept or deny tenancy to a felon but would have been held liable if that person committed a criminal act on the property or against a tenant.

Opposition to the measure was compelling in the eyes of the Assembly and in the end, the author decided to shelve the bill for this year and make it a “two-year bill.” We should expect the author and sponsors to return next year.

Ron Kingston can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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