Final Text - Fair Housing Regulations

Fair Employment & Housing Council

Fair Housing Regulations

CALIFORNIA CODE OF REGULATIONS

Title 2. Administration

Div. 4.1. Department of Fair Employment & Housing

Chapter 5. Fair Employment & Housing Council

Subchapter 7. Discrimination in Housing

TEXT

[All additions to the CA Code of Regulations]

Article 1. General Matters

§ 12005. Definitions.

As used in this subchapter, the following definitions shall apply:

(a) “Act” or “the Act” means the California Fair Employment and Housing Act, created by

Government Code section 12900 et seq.

(b) “Adverse action” means action that harms or has a negative effect on an aggrieved person.

The adverse action need not be related directly to the dwelling or housing opportunity forming

the basis for the lawsuit or administrative complaint; for example, filing false allegations about a

tenant with a tenant’s employer may constitute adverse action. Adverse action includes:

(1) In dwellings that are rented, leased, or otherwise made available for occupancy

whether or not for a fee, adverse actions include:

(A) Failing or refusing to rent or lease real property, failing or refusing to continue to rent

or lease real property, failing or refusing to add a household member to an existing lease,

reducing any tenant subsidy, increasing the rent, reducing services, changing the terms,

conditions, or privileges, threatening to or actually filing false reports with tenant

reporting agencies, unlawfully locking an individual out of, or otherwise restricting,

access to all or part of the premises, harassment, termination, or threatened termination of

tenancy, serving a notice to quit, filing an eviction action, evicting a tenant, refusing to

provide a reasonable accommodation or reasonable modification, or engaging in any

other discriminatory housing practice; or

(B) Taking any action prohibited by California Civil Code sections 1940.2 (a), 1940.3(b),

1940.35, or 1942.5(c) or (e), or Code of Civil Procedure 1161.4(a);

(2) Taking any action prohibited by Article 24 regarding the consideration of criminal

history information;

(3) Refusing to sell a dwelling or residential real estate or otherwise failing or refusing to

enter into a residential real estate related transaction;

(4) Refusing to provide financial assistance related to a dwelling or residential real estate;

(5) Taking other action that has an adverse effect on an aggrieved person.

(1) Believes they have been injured by a discriminatory housing practice; or

(2) Believes that they will be injured by a discriminatory housing practice that is about to

occur.

(d) “Assistance animals” include service animals and support animals, as described in

subsections (1) and (2) below. An assistance animal is not a pet. It is an animal that works,

provides assistance, or performs tasks for the benefit of an individual with a disability, or

provides emotional, cognitive, or similar support that alleviates one or more identified symptoms

or effects of an individual’s disability. See also, section 12185.

(1) “Service animals” are animals that are trained to perform specific tasks to assist

individuals with disabilities, including individuals with mental health disabilities. Service

animals do not need to be professionally trained or certified, but may be trained by the

individual with a disability or another individual. Specific examples include, but are not

limited to:

(A) “Guide dog,” as defined at Civil Code section 54.1, or other animal trained to guide a

blind individual or individual with low vision.

(B) “Signal dog,” as defined at Civil Code section 54.1, or other animal trained to alert a

deaf or hard-of-hearing individual to sounds.

trained to the requirements of an individual with a disability.

(D) “Miniature horses” meeting the requirements of 28 CFR 35.136(i) (March 15, 2011)

hereby incorporated by reference and 28 CFR 36.302(c)(9) (October 11, 2016) hereby

incorporated by reference.

(E) “Service animals in training,” including guide, signal, and service dogs being trained

by individuals with disabilities, persons assisting individuals with disabilities, or

authorized trainers under Civil Code sections 54.1(c) and 54.2(b).

(2) “Support animals” are animals that provide emotional, cognitive, or other similar

support to an individual with a disability. A support animal does not need to be trained or

certified. Support animals are also known as comfort animals or emotional support

animals.

(e) “Building” means a structure, facility, or portion thereof that contains or serves one or more

dwelling units.

(f) “Business establishment” shall have the same meaning as in Section 51 of the Civil Code.

Business establishments include persons engaged in the operation of a business covered by

Section 51 of the Civil Code, insofar as the business is related to dwellings, housing

opportunities, financial assistance, land use, or residential real estate-related activities. The term

business establishment shall be broadly interpreted. For example:

(1) Entities engaged in the rental, sale, management or operation of residential real estate,

including common interest developments and mobilehome parks, constitute business

establishments;

(2) Government bodies engaged in enacting legislation to implement governmental

functions may not constitute business establishments; and

(3) Both nonprofit and for-profit organizations can constitute business establishments

depending on the facts, but truly private social clubs not engaged in business activity are

not business establishments.

(g) “Common use areas” means rooms, spaces, or elements inside or outside of a building that

are made available for the use of residents of a building or the guests thereof. Examples of

common use areas include hallways, lounges, lobbies, laundry rooms, refuse rooms, mail rooms,

elevators, parking areas, garages, pools, clubhouses, dining areas, physical fitness areas or gyms,

play areas, recreational areas, and passageways among and between buildings.

(h) “Complainant” means a person who files a complaint with the department alleging that the

person has been aggrieved by a practice made unlawful by any law the department enforces

and/or a person who files a civil action or counterclaim or raises an affirmative defense alleging

that the person has been aggrieved by a practice made unlawful by any law the department

enforces.

(i) “Criminal conviction” means a record from any jurisdiction that includes information

indicating an individual has been convicted of a felony or misdemeanor.

(j) “Department” means the Department of Fair Employment and Housing.

(k) “Directly-related conviction” means a criminal conviction that has a direct and specific

negative bearing on the identified interest or purpose supporting the practice.

(l) “Discriminatory housing practice” means an act that is unlawful under federal or state fair

housing law, including housing-related violations of the Fair Employment and Housing Act, the

federal Fair Housing Act, the Unruh Civil Rights Act, the Ralph Civil Rights Act, the Disabled

Persons Act, and the Americans with Disabilities Act.

(m) “Dwelling unit” means a single unit of a housing accommodation for a family or one or

more individuals.

(n) “Financial assistance” includes the making or purchasing of loans, grants, securities, or other

debts; the pooling or packaging of loans or other debts or securities, which are secured by

residential real estate; or the provision of other financial assistance relating to the purchase,

organization, development, construction, improvement, repair, maintenance, rental, leasing,

occupancy, or insurance of dwellings, including:

(1) Mortgages, reverse mortgages, home equity loans, and other loans secured by

residential real estate;

(2) Insurance and underwriting related to residential real estate, including construction

insurance, property insurance, liability insurance, homeowner’s insurance, and renter’s

insurance; and

(3) Loan modifications, foreclosures, and the implementation of the foreclosure process.

(o) “Housing accommodation” or “dwelling” includes:

(1) One or more dwelling units;

(2) Any building, structure, or portion thereof that is used or occupied as, or designed,

arranged, or intended to be used or occupied as, a home, residence, or sleeping place by

one individual who maintains a household or by two or more individuals who maintain a

common household, and includes all public and common use areas associated with it, if

any, including single family homes; multi-family housing; apartments; community

associations, condominiums, townhomes, planned developments, community apartment

projects, and other common interest developments as defined in the Davis-Stirling

Common Interest Development Act (known colloquially as homeowner associations

(HOAs)); housing cooperatives, including those defined under Civil Code 4100(d);

rooms used for sleeping purposes; single room occupancy hotel rooms and rooms in

which people sleep within other types of dwellings in which sleeping accommodations

are provided but toileting or cooking facilities are shared by occupants of more than one

room or portion of the dwelling; bunkhouses; dormitories, sober living homes;

transitional housing; supportive housing; licensed and unlicensed group living

arrangements; residential motels or hotels; boardinghouses; emergency shelters; homeless

shelters; shelters for individuals surviving domestic violence; cabins and other structures

housing farmworkers; hospices; manufactured homes; mobilehomes and mobilehome

sites or spaces; modular homes, factory built houses, multi-family manufactured homes,

floating homes and floating home marinas, berths, and spaces; communities and live

aboard marinas; and recreational vehicles used as a home or residence.

(3) Any vacant land that is offered for sale or lease for the construction of any housing

accommodation, dwelling, or portion thereof as defined in subdivision (2); or

(4) All dwellings as defined in and covered by the federal Fair Housing Act (42 U.S.C. §

3602(b)).

(p) “Housing opportunity” includes the opportunity to obtain, use or enjoy a dwelling, a

residential real estate-related transaction, financial assistance in relation to dwellings or

residential real estate, public or private land use practices in relation to dwellings or residential

real estate, or other housing related privileges, services and facilities, including infrastructure or

governmental services.

(q) “Includes” or “including” has the same meaning as “includes, but not limited to” or

“including, but is not limited to.”

(r) “Legitimate” means that a justification is genuine and not false or pretexual.

(s) “Nondiscriminatory” means that the justification for a challenged practice does not itself

discriminate based on a protected basis.

(t) “Owner” means any person having any legal or equitable right of ownership, possession or

the right to rent or lease housing accommodations, including the following if they hold such

rights:

(1) A lessee, sublessee, assignee, managing agent, real estate broker or salesperson;

(2) A trustee, trustee in bankruptcy proceedings, receiver, or fiduciary;

(3) Any person that is defined as a “housing provider” in a statute, regulation or

government program or that is commonly referred to as a “housing provider” in the

housing industry;

(4) The state and any of its political subdivisions and any agency thereof;

(5) Agencies, districts and entities organized under state or federal law, and cities,

counties, and cities and counties (whether charter or not), and all political subdivisions

and agencies thereof; and

(6) Governing bodies of common interest developments.

(u) “Person” or “persons” include:

(1) An individual or individuals;

(2) All individuals and entities that are included in the definition of “owner”;

(3) All individuals and entities that are described in 42 U.S.C. § 3602(d) and 24 C.F.R.

100.20, including one or more individuals, corporations, partnerships, limited liability

companies, associations, labor organizations, legal representatives, mutual companies,

joint-stock companies, trusts, unincorporated organizations, trustees, trustees in

bankruptcy proceedings, receivers, and fiduciaries;

(4) All institutional third parties, including the Federal Home Loan Mortgage

Corporation, Fannie Mae, and any other entities that comprise the secondary loan market;

(5) Community associations, condominiums, planned developments, and other common

interest developments, including those defined in the Davis-Stirling Common Interest

Development Act (Civil Code section 4000 et seq.) (known colloquially as homeowner

associations (HOAs));

(6) The state and any of its political subdivisions and any agency thereof; agencies,

districts, and entities organized under state or federal law; and cities, counties, and cities

and counties (whether charter or not), and all political subdivisions and agencies thereof;

(7) Any entity that has the power to make housing unavailable or infeasible through its

practices, including government entities and agencies, insurance companies, real estate

brokers and agents, and entities that provide funding for housing; and

(8) “Person” shall be interpreted broadly.

(v) “Practice” or “practices” includes the following, whether written or unwritten or singular or

multiple: an action, failure to act, rule, law, ordinance, regulation, decision, standard, policy,

procedure, and common interest development governing documents pursuant to Civil Code

sections 4205, 4340-4370. Practice also includes “practices” as used in 24 C.F.R. Part 100.

(w) “Premises” means the interior or exterior spaces, parts, components, or elements of a

building, including individual dwelling units and the public and common use areas of a building.

(x) “Private land use practices” include all non-governmental practices in connection with

development and land use that are related to or have an effect on existing or proposed dwellings

or housing opportunities including:

(1) Rehabilitation, transfer, conversion, demolition and development;

(2) Regulations and rules governing use of property and the conduct or characteristics of

its occupants;

(3) Provision, denial of, or failure to provide infrastructure, services or facilities and land

use that affect the feasibility, use or enjoyment of housing opportunities and existing and

proposed dwellings;

(4) Covenants, deed restrictions, and other conditions or constraints on transfer or use of

property, whether or not recorded with a county; and

(5) Other actions that make housing unavailable.

(y) “Protected bases” or “protected classes” include race, color, religion, sex, gender, gender

identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial

status, source of income, disability, age, medical condition, genetic information, citizenship,

primary language, immigration status, arbitrary characteristics as protected by the Unruh Civil

Rights Act, and all other classes of individuals protected from discrimination under federal or

state fair housing laws, individuals perceived to be a member of any of the preceding classes, or

any individual or person associated with any of the preceding classes.

(z) “Public land use practices” include all practices by governmental entities, as those entities are

defined in sections 12005(t)(4), 12005(t)(5), and 12005(u)(6), in connection with development

and land use that are related to or have an effect on existing or proposed dwellings or housing

opportunities including:

(1) Adoption, modification, implementation or rescission of ordinances, resolutions,

actions, policies, permits, or decisions, including authorizations, denials, and approvals of

zoning, land use permits, variances, and allocations, or provision or denial of facilities or

services;

(2) Other actions authorized under the California Planning and Zoning Law (Title 7

(commencing with section 65000)), California Redevelopment Law (Health & Safety

Code section 33320 et seq.), “Redevelopment Dissolution Law” (Division 24, Parts 1.8,

1.85 and 1.87), the Ellis Act (Government Code section 7060), the Mobilehome Parks

Act (Health and Safety Code section 18200 et seq.), the Special Occupancy Parks Act

(Health & Safety Code section 18860 et seq.), the California Relocation Assistance Act

(Government Code section 7260 et seq.), the Surplus Lands Act (Government Code

section 54220 et seq.), State Housing Law (Health and Safety Code section 17910 et seq.,

Government Code section 65580 et seq.) and other federal and state laws regulating the

development, transfer, disposition, demolition, and regulation of residential real estate or

existing or proposed dwellings, and the provision of public facilities and services and

other practices that affect infrastructure, municipal services and community amenities in

connection with housing opportunities;

(3) All practices that could affect the availability, feasibility, use, or enjoyment of

housing opportunities;

(4) Allocation, provision, denial of or failure to provide municipal infrastructure or

services, such as water, sewer, and emergency services, and other services, in connection

with housing opportunities;

(5) Permitting of facilities or services that affect housing opportunities;

(6) Adoption, modification or implementation of housing-related programs, which

include activities where a governmental entity, in whole or in part, owns, finances,

develops, constructs, alters, operates, or demolishes a dwelling, or where such activities

are done in connection with a program administered by, or on behalf of, a governmental

entity, directly or through contractual, licensing, or other arrangements; and

(7) Other legislative, quasi-judicial, administrative, or other practices related to land use.

(aa) “Public use areas” means interior or exterior rooms or spaces of a building that are made

available to the general public. Public use areas may be provided at a building that is privately or

publicly owned.

(bb) “Residential real estate” means all real property, whether improved or unimproved, that

includes or is planned to include dwellings, or is zoned or otherwise designated or available for

the construction or placement of dwellings.

(cc) “Residential real estate-related transaction” includes:

(1) Providing financial assistance;

(2) Buying, selling, brokering or appraising of residential real estate; or

(3) The use of territorial underwriting requirements, for the purpose of requiring a

borrower in a specific geographic area to obtain earthquake insurance, required by an

institutional third party on a loan secured by residential real property.

(dd) “Respondent” means a person alleged to have committed a practice made unlawful by a law

the department enforces and against whom a complaint has been filed with the department,

against whom a civil action or counterclaim has been filed, or against whom an affirmative

defense has been raised.

(ee) “Substantial interest” means a core interest of the entity or organization that has a direct

relationship to the function of that entity or organization.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12927, 12955, 12955.6, 12955.8, 12956.1, and 12956.2, Government Code; Auburn

Woods I Homeowners Ass’n v. Fair Employment and Housing Com’n (2004) 121 Cal.App.4th

1578.

§ 12010. Liability for Discriminatory Housing Practices.

(a) Direct Liability.

(1) A person is directly liable for:

(A) The person’s own conduct that results in a discriminatory housing practice.

(B) Failing to take prompt action as determined on a case-by-case basis to correct and

end a discriminatory housing practice by that person’s employee or agent, where the

person knew or should have known of the discriminatory conduct, including because

supervisors, managers, or principals of the person had or should have had such

knowledge.

end a discriminatory housing practice by a third-party, where the person knew or should

have known of the discriminatory conduct and had the power to correct it. The power to

take prompt action to correct and end a discriminatory housing practice by a third-party

depends upon the extent of any legal responsibility or authority the person may have with

respect to the conduct of such third party. The power, responsibility, or authority can be

derived from sources including contracts, leases, common interest development

governing documents, or by federal, California, or local laws, regulations, or practices.

(2) For purposes of determining liability under this section, prompt action to correct and

end the discriminatory housing practice may not include any action that penalizes or

harms the aggrieved person, such as eviction of the aggrieved person. An aggrieved

person has a right to raise the discriminatory housing practice as an affirmative defense to

an unlawful detainer action.

(3) An employee or agent may be directly liable for a discriminatory housing practice,

regardless of whether the employee’s or agent’s employer or principal knew or should

have known of the conduct or failed to take appropriate corrective action.

(b) Vicarious Liability. Vicarious liability is a form of responsibility that makes a person liable

for the discriminatory housing practice of a third party, regardless of whether the person knew or

should have known of the conduct by the third party that resulted in the discriminatory housing

practice. A person covered by these regulations is vicariously liable for discriminatory practices

by their agent or employee, regardless of whether they knew or should have known about the

conduct, unless California agency law requires a different outcome and that outcome is not in

conflict with the federal Fair Housing Act.

(1) Whether there is an agency relationship between a person and a third party that results

in liability for a discriminatory housing practice is a question of fact. However, a

discriminatory housing practice can be found to occur even if it violates an agent’s or

employee’s official duties, does not benefit the agent or employer, is willful or malicious,

or disregards the agent’s or employer’s express orders.

(2) An agent or employee may be considered to be acting within the course and scope of

the agency or employment relationship even if his or her discriminatory housing practice

occurs incidental to the agent’s or employee’s job-related tasks. For example, a person

may be liable for harassment committed by their employee on the premises of a dwelling

for work-related reasons such as conducting repairs, even though harassment is not part

of the employee’s job duties.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12927, 12955, and 12983, Government Code.

Article 7. Discriminatory Effect

§ 12060. Practices with a Discriminatory Effect.

(a) The Act imposes liability for practices that are not motivated by discriminatory intent when

the practices have a discriminatory effect, as defined in paragraph (b) of this section. Practices

that have a discriminatory effect may still be lawful if supported by a legally sufficient

justification, as defined in section 12062.

(b) A practice has a discriminatory effect where it actually or predictably results in a disparate

impact on a group of individuals, or creates, increases, reinforces, or perpetuates segregated

housing patterns, based on membership in a protected class. A practice predictably results in a

disparate impact when there is evidence that the practice will result in a disparate impact even

though the practice has not yet been implemented. A single person may pursue

claim based

upon a practice that has disparate impact on a group of individuals if that

person has been

injured by the practice.

A practice that is proven under Section 12061 to create, increase,

reinforce, or perpetuate segregated housing patterns is a violation of the Act independently of the

extent to which it produces a disparate effect on protected classes.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12927, 12955, 12955.6, and 12955.8, Government Code.

§ 12061. Burdens of Proof in Discriminatory Effect Cases.

(a) A complainant must show that the practice they are challenging has a discriminatory effect.

This means that, in a legal proceeding, the complainant has the burden of proving that a

challenged practice caused or predictably will cause a discriminatory effect.

(b) If the complainant shows that the challenged practice has a discriminatory effect, the

respondent can avoid liability by showing that the practice is justified despite the discriminatory

effect. In a legal proceeding, this means that once the complainant satisfies the burden of proof

set forth in subdivision (a) of this section, the burden shifts to the respondent to prove that the

challenged practice meets all of the elements of a legally sufficient justification, as set forth in

subdivisions (a) or (b), as applicable, of section 12062.

subdivision (a) or (b) has met its burden.

(d) Types of evidence that, depending on the facts of the case, are relevant in providing statistics

to establish or to rebut the existence of a discriminatory effect include:

(1) National, state, and local statistics;

(2) Applicant files or data;

(3) Tenant/resident files or data;

(4) Conviction statistics;

(5) Demographic or census data;

(6) Local agency data or records;

(7) Police records and court records, including eviction data;

(8) Survey data; and

(9) Other relevant data.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12927, 12955, 12955.6, and 12955.8, Government Code; 42 U.S.C. section 3615; 24

C.F.R. section 100.500 et seq.

§ 12062. Legally Sufficient Justification.

(a) A business establishment can show that there is no violation of the Act if there is a legally

sufficient justification for a practice that has a discriminatory effect. To show that a legally

sufficient justification exists, the business establishment must establish the following elements:

(1) The practice is necessary to achieve one or more substantial, legitimate,

nondiscriminatory business interests;

(2) The practice effectively carries out the identified business interest; and

(3) There is no feasible alternative practice that would equally or better accomplish the

identified business interest with a less discriminatory effect.

(b) In cases that do not involve a business establishment, the person whose practice has a

discriminatory effect can show that there is no violation of the Act if there is a legally sufficient

justification for the practice. To show that a legally sufficient justification exists, the person must

establish the following elements:

(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;

(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.

sufficient if it is not supported by evidence, meaning that the justification is hypothetical or

speculative.

(d) In a legal proceeding, the determination of whether an interest or purpose is substantial,

legitimate, and nondiscriminatory requires a case-specific, fact-based inquiry.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12927, 12955, 12955.6, and 12955.8, Government Code.

§ 12063. No Legally Sufficient Justification for Intentional Discrimination.

A demonstration that a practice is supported by a legally sufficient justification, as defined in

section 12062, may not be used as a defense against a claim of intentional discrimination under

section 12955.8(a) of the Act.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12927, 12955, 12955.6, and 12955.8, Government Code.

Article 11. Financial Assistance Practices

§ 12100. Financial Assistance Practices with Discriminatory Effect.

(a) Financial assistance practices may have a discriminatory effect. A financial assistance

practice that has a discriminatory effect is prohibited unless there is a legally sufficient

justification for the practice. Financial assistance practices that are prohibited absent a legally

sufficient justification include:

(1) Making available, making unavailable, or discouraging the provision of financial

assistance in a manner that results in a discriminatory effect based on membership in a

protected class;

(2) Establishing the terms or conditions of financial assistance in a manner that results in

a discriminatory effect based on membership in a protected class;

(3) Failing or refusing to provide information regarding the availability of financial

assistance, or failing or refusing to provide information regarding application

requirements, procedures or standards for the review and approval of financial assistance,

or providing information which is inaccurate or different from that provided others, in a

manner that results in a discriminatory effect based on membership in a protected class;

(4) Imposing different terms or conditions on the availability of financial assistance in a

manner that results in a discriminatory effect based on membership in a protected class;

(5) Determining the type of financial assistance to be provided or fixing the amount,

interest rate, cost, duration, or other terms or conditions for financial assistance in a

manner that result in a discriminatory effect based on membership in a protected class;

(6) Servicing of financial assistance, or providing such servicing with different terms or

conditions, in a manner that results in a discriminatory effect based on membership in a

protected class;

(7) Subjecting a person to harassment in a manner that has the effect of imposing

different terms or conditions for the availability of financial assistance that results in a

discriminatory effect based on membership in a protected class; and

(8) Conditioning the availability of financial assistance, or the terms or conditions

thereof, on a person's response to harassment in a manner that results in a discriminatory

effect based on membership in a protected class.

(b) Financial assistance practices are also prohibited if they intentionally discriminate on the

basis of membership in a protected class.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12927, 12955, 12955.6, and 12955.8, Government Code.

Article 12. Harassment and Retaliation

§ 12120. Harassment.

(a) General. The Act prohibits harassment because of membership in a protected class as a

discriminatory housing practice. Harassment can take two forms: quid pro quo harassment, and

hostile environment harassment. It is possible for the same conduct to be both quid pro quo

harassment and hostile environment harassment.

(1) Quid pro quo harassment. Quid pro quo harassment refers to an unwelcome request or

demand to engage in conduct where submission to the request or demand, either

explicitly or implicitly, is made a condition related to any of the following: the sale,

rental, or availability of a dwelling; the terms, conditions, or privileges of the sale or

rental, or the provision of services or facilities in connection therewith; the availability,

terms, conditions, or privileges of a housing opportunity; or the avoidance of an adverse

action. An unwelcome request or demand may constitute quid pro quo harassment even if

an individual acquiesces in the unwelcome request or demand.

(2) Hostile environment harassment. Hostile environment harassment refers to

unwelcome conduct that is sufficiently severe or pervasive as to interfere with any of the

following: the availability, sale, rental, or use or enjoyment of a dwelling; the terms,

conditions, or privileges of the sale or rental; the provision or enjoyment of services or

facilities in connection therewith; the availability, terms, conditions, or privileges of a

housing opportunity; or constitute any kind of adverse action. Hostile environment

harassment does not require a change in the terms, conditions, or privileges of the

dwelling, housing opportunity, or housing-related services or facilities.

(A) Whether hostile environment harassment existed or exists depends upon the totality

of the circumstances.

(i) Factors to be considered in determining whether hostile environment harassment

existed or exist include, but are not limited to, the nature of the conduct, the context in

which the incident(s) occurred, the severity, scope, frequency, duration, and location of

the conduct, and the relationships of the persons involved.

(ii) Neither psychological nor physical harm must be demonstrated to prove that a hostile

environment existed or exists. Evidence of psychological or physical harm may, however,

be relevant in determining whether a hostile environment exists or existed, as well as the

amount of damages to which an aggrieved person may be entitled.

(iii) Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile

environment is viewed from the perspective of a reasonable person in the aggrieved

person’s position.

(b) Title VII Affirmative Defenses Not Available. Under Title VII of the Civil Rights Act of

1964, employers have an affirmative defense to vicarious liability for hostile environment

harassment by a supervisor. That defense is not available in housing cases.

written, verbal, or other conduct and do not require physical contact. Quid pro quo and hostile

environment harassment in housing include:

(1) Verbal harassment, including epithets, derogatory comments, or slurs;

(2) Physical harassment directed at an individual, including leering; winking; looking a

person up and down, throwing kisses; sexual gestures; deliberate touching; pinching;

patting; leaning over; intentional rubbing or brushing against another individual's body;

grabbing; fondling; kissing; following a person, cornering a person, blocking a person's

way, or otherwise deliberately interfering with or impeding a person’s movements;

attempted or actual rape or sexual assault; or sexual intercourse.

(3) Visual forms of harassment, including derogatory posters, cartoons, drawings,

writings, or other documents. Nothing herein shall be construed to contravene the

protections provided by Civil Code sections 1940.4 and 4710;

(4) Unwelcome sexual conduct, or other unwelcome conduct, linked to an individual’s

sex, gender, gender identity, gender expression, or sexual orientation;

(5) Any coercion, intimidation, threats, or interference with a person’s exercise or

enjoyment of a housing opportunity;

(6) Taking any adverse action against a person in a manner that constitutes quid pro quo

or hostile environment harassment, such as representing to an applicant that a dwelling or

housing opportunity is unavailable because of the applicant’s response to a request for a

sexual favor or other harassment;

(7) Revealing private information to a third party about a person, without their consent, in

a manner that constitutes quid pro quo or hostile environment harassment, unless such

disclosure is required by federal or state law or permitted by an exception set forth in

section 12176(b);

(8) Conduct that is a discriminatory housing practice may also be quid pro quo or hostile

environment harassment. For instance, a landlord repeatedly failing to make repairs to the

apartments of non-English speakers while making repairs to the apartments of all other

individuals could be found liable for both discrimination on the basis of primary language

and hostile environment harassment.

(d) Number of Incidents. A single incident of harassment because an individual is a member of a

protected class may constitute a discriminatory housing practice, where the incident is

sufficiently severe to constitute hostile environment harassment, or evidences quid pro quo

harassment.

(e) Persons Protected. The prohibition on harassment extends to conduct that is based on an

individual’s membership in a protected class, being perceived as a member of a protected class,

or on account of having aided or encouraged any person in the exercise of the rights protected by

the Act.

(f) Nothing herein is designed to contravene a person’s right to petition the government or

exercise their rights under the First Amendment to the United States Constitution.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926.05, 12927, 12948, 12955, a 12955.7, Government Code.

§ 12130. Retaliation.

(a) The Act prohibits retaliation against individuals who exercise their rights to be free from

discriminatory or harassing housing practices. It shall be unlawful for any person to take adverse

action against an aggrieved person when a purpose for the adverse action is retaliation for

engaging in protected activity.

(b) Persons Protected. For purposes of a retaliation claim, an aggrieved person includes any

person who has alleged that they have been subject to adverse action due to engagement in a

protected activity. For purposes of a retaliation claim, the person does not need to have a claim

under any other provision of the Act.

manner in a proceeding under the Fair Housing Act, Fair Employment and Housing Act, the

Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Unruh Act, or any

other federal, state or local law protecting fair housing rights or prohibiting discrimination in

housing; opposition to housing practices believed to be discriminatory or made unlawful by a fair

housing law; informing law enforcement or other government agencies of practices believed to

be discriminatory or made unlawful by a fair housing law; assertion of rights protected by fair

housing laws (including in response to perceived harassment); aiding or encouraging a person to

exercise their fair housing rights; meeting or assembling with other persons in order to address

potential or actual violations of fair housing rights (including, for example, by joining,

supporting, or organizing an organization that advances or protects fair housing rights); making a

request for a reasonable accommodation or reasonable modification for an individual with a

disability even if the request is not granted; or any other action related to access to statutory or

constitutional remedial processes or remedies for violations of fair housing laws or laws

prohibiting discrimination in housing.

(d) Burden-shifting rule. To establish a prima facie case of retaliation in a legal proceeding, a

complainant must show that (1) the complainant was engaged in a protected activity; (2) the

respondent subjected the complainant to an adverse action; and (3) a causal link exists between

the protected activity and the adverse action. If the complainant can establish a prima facie case,

the respondent then has the burden to offer a legitimate non-retaliatory reason for the adverse

action, whereupon the burden shifts back to the complainant to demonstrate that the proffered

reason is pretextual or false.

(e) “Purpose” means that retaliation formed some part of the basis for the respondent’s action

even if it was not the sole motivating factor. The purpose must be more than a remote or trivial

factor. Purpose may be established by evidence which indicates that the timing of the adverse

action in relation to the respondent’s notification of the protected activity is such that retaliatory

motivation can be inferred, may be established by the non-existence of another plausible purpose

for the respondent’s adverse action, or by other direct or circumstantial evidence. For purposes of

section 12955(f) of the Act, “dominant purpose” shall have the same meaning as purpose under

this subsection.

(f) An aggrieved person under this Act may raise retaliation as an affirmative defense in an

unlawful detainer action. Nothing in this subsection is intended to cause or permit the delay of an

unlawful detainer action due to asserting retaliation as an affirmative defense. Raising retaliation

as a good faith affirmative defense does not in and of itself constitute a delay of an unlawful

detainer action.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections

12920, 12921, 12927, 12948, 12955, and 12955.7, Government Code.

Article 14. Practices Related to Residential Real Estate-Related Transactions

§ 12155. Residential Real Estate-Related Practices with Discriminatory Effect.

(a) Residential real estate-related practices may have a discriminatory effect. A residential real

estate-related practice that has a discriminatory effect is prohibited unless there is a legally

sufficient justification for the practice. Residential real estate-related practices that are prohibited

absent a legally sufficient justification include:

(1) Making available, or making unavailable, a residential real estate-related transaction

in a manner that results in a discriminatory effect based on membership in a protected

class;

(2) Establishing the terms or conditions of a residential real estate-related transaction in a

manner that results in a discriminatory effect based on membership in a protected class;

(3) Failing or refusing to provide information regarding a residential real estate-related

transaction; failing or refusing to provide information regarding application requirements,

procedures, or standards for the review and approval of the residential real estate-related

transaction; or providing information which is inaccurate or different from that provided

others in a manner that that results in a discriminatory effect based on membership in a

protected class;

(4) Imposing different terms or conditions on the availability of a residential real estate-

related transaction in a manner that results in a discriminatory effect based on

membership in a protected class;

(5) Determining the price or other terms or conditions in connection with a residential

real estate-related transaction in a manner that results in a discriminatory effect based on

membership in a protected class;

(6) Subjecting a person to harassment that affects a residential real estate-related

transaction, in a manner that results in a discriminatory effect based on membership in a

protected class; and

(7) Conditioning the availability of a residential real estate-related transaction, or the

terms or conditions thereof, on a person's response to harassment in a manner that results

in a discriminatory effect based on membership in a protected class.

(b) Residential real estate-related practices are also prohibited if they intentionally discriminate

on the basis of membership in a protected class.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12927, 12955, 12955.6, and 12955.8, Government Code.

Article 15. Discrimination in Land Use Practices

§ 12161. Discrimination in Land Use Practices and Housing Programs Prohibited.

(a) It shall be unlawful for any person to engage in any public or private land use practice that:

(1) intentionally discriminates based on membership in a protected class pursuant to

Government Code section 12955.8(a) or

(2) has a discriminatory effect on members of a protected class pursuant to Government

Code section 12955.8(b) and Article 7, unless there is a legally sufficient justification for

the practice.

(b) Subsections (a)(1) and (a)(2) include a practice that does any of the following in connection

with housing opportunities or existing or proposed dwellings, if the practice intentionally

discriminates or has a discriminatory effect on members of a protected class:

(1) Denies, restricts, conditions, adversely impacts, or renders infeasible the enjoyment of

residence, land ownership, tenancy, or any other land use benefit related to housing

opportunities;

(2) Makes housing opportunities unavailable or denies dwellings to individuals or

intended occupants of dwellings;

(3) Imposes different requirements than generally imposed, or fails to enforce generally

imposed requirements, in a manner that denies, restricts, conditions, adversely impacts, or

renders infeasible housing opportunities or the enjoyment of residence, land ownership,

tenancy, or any other land use benefit related to housing opportunities or existing or

proposed dwellings;

(4) Provides inadequate, inferior, limited, or no governmental infrastructure, facilities, or

services, such as water, sewer, garbage collection, code enforcement, or other municipal

infrastructure or services, in connection with the enjoyment of residence, land ownership,

tenancy, or any other land use benefit related to residential use or in connection with

housing opportunities or existing or proposed dwellings, or otherwise makes unavailable

such infrastructure, facilities or services;

(5) Denies, restricts, conditions, adversely impacts, or renders infeasible the use of

privileges, services, or facilities associated with housing opportunities or existing or

proposed dwellings, or otherwise makes unavailable such privileges, services or facilities;

(6) Uses, approves of, or implements restrictive covenants, including provisions in

governing documents of common interest developments, that restrict sale or use of

property on the basis of a protected class, or the intended occupancy of any dwelling by

individuals in a protected class, regardless of whether accompanied by a statement that

the restrictive covenant is repealed or void;

(7) In the adoption, operation or implementation of housing-related programs, policies,

and plans, denies, restricts, adversely impacts, conditions, or renders infeasible the

enjoyment of residence, land ownership, tenancy, or any other land use benefit related to

residential use, or in connection with housing opportunities or existing or proposed

dwellings;

(8) Refuses or fails to make reasonable accommodations in public or private land use

practices or services related to the enjoyment of residence, land ownership, tenancy, or

any other land use benefit related to residential use, or in connection with residential real

estate or existing or proposed dwellings, including charging a fee for seeking or

processing a reasonable accommodation, or using land use permitting processes for

variances, conditional use permits, or other land use approvals rather than a reasonable

accommodation process to respond to a request for a reasonable accommodation if the

variance or conditional use process takes into consideration different criteria or uses

different procedures than those required by this article for considering requests for a

reasonable accommodation;

(9) Refuses or fails to make, or refuses or fails to allow to be made, reasonable

modifications in a dwelling when such modifications are required by law;

(10) Results in the location of toxic, polluting, and/or hazardous land uses in a manner

that denies, restricts, conditions, adversely impacts, or renders infeasible the enjoyment

of residence, land ownership, tenancy, or any other land use benefit related to residential

use, or in connection with housing opportunities or existing or proposed dwellings;

(11) Denies, restricts, conditions, adversely impacts, or renders infeasible the enjoyment

of residence, land ownership, tenancy, or any other land use benefit related to residential

use, or in connection with housing opportunities or existing or proposed dwellings or

otherwise makes housing opportunities unavailable on the basis of an individual’s or

individuals’ ability to speak, read or understand the English language. However, nothing

in this section shall be interpreted to expand the obligation to provide translations of

documents, notices, proceedings, contracts and agreements as set forth in Civil Code

section 1632 or section 1632.5; the Dymally-Alatorre Bilingual Services Act,

Government Code sections 7290 et seq.; Water Code section 116450; or similar statutory

provisions requiring translations or interpretations; nor shall anything in this section be

interpreted to reduce obligations under the Act or other laws to provide American Sign

Language or similar language or communication services to people with disabilities; or

(12) Creates, increases, reinforces, or perpetuates segregated housing patterns,

independently of the extent to which it produces a disparate effect on protected classes.

stereotypes of the public, members of the public, or organizational members, intentional

discrimination may be shown even if officials or decision-makers themselves do not hold such

bias, prejudice or stereotypes. This is a case-specific analysis.

(d) Application or implementation of a facially neutral practice violates the law if done in a

manner that intentionally discriminates on the basis of membership in a protected class, or in a

manner that has a discriminatory effect based on membership in a protected class in violation of

section 12060 unless there is a legally sufficient justification for the manner in which the practice

is applied or implemented.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12927, 12955, 12955.6, 12955.8, 12956.1, and 12956.2, Government Code.

§ 12162. Specific Practices Related to Land Use Practices.

To the extent that public or private land use practices identified in this section require conduct

that violates other provisions of the Act and this subchapter, or otherwise restrict, deny, or make

a housing opportunity unavailable because of membership in a protected class or the intended

occupancy of any dwelling by individuals in a protected class, or which have a discriminatory

effect on the basis of membership in a protected class in the absence of a legally sufficient

justification, they shall be unlawful. Those practices include actions to enact, modify, enforce, or

implement:

(a) Practices requiring persons to take actions against individuals based upon broad definitions of

nuisance activities (such as considering a phone call to, or receipt of a visit or service by, law

enforcement or emergency services as a nuisance), or based upon broad definitions of unlawful

conduct or criminal activity. For purposes of this section, practices requiring persons to take

actions against individuals include mandating initiation of eviction procedures against tenants or

occupants, prohibiting renewal of an existing tenancy, or requiring the initiation of adverse

actions against one or more tenants, occupants or guests;

(b) Practices that violate or mandate that other persons violate, Article 24, including practices

requiring persons to use specified criminal history records in their business establishment in

connection with housing opportunities, prohibiting persons from renting or engaging in

transactions covered by this Act on the basis of specified criminal convictions, or mandating

initiation of eviction proceedings against tenants and occupants arrested, suspected or convicted

of crimes;

immigration status or legal residency or otherwise related to enforcement of laws related to

immigration. Activities required by federal law or court order are exempt from this provision;

and

(d) Nothing contained in this section shall affect the nondiscriminatory enforcement of state and

local public nuisance laws, provided that those laws do not otherwise conflict with the Act.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections

12920, 12921, 12926, 12927, 12955, 12955.6, 12955.8, 12956.1, 12956.2, and 12995,

Government Code.

Article 18. Disability

§ 12176. Reasonable Accommodations.

(a) It is a discriminatory housing practice for any person to refuse to make reasonable

accommodations in rules, policies, practices, or services when such accommodations may be

necessary to afford an individual with a disability an equal opportunity to use and enjoy a

dwelling unit and public and common use areas, or an equal opportunity to obtain, use, or enjoy

a housing opportunity unless providing the requested accommodation would constitute an undue

financial or administrative burden or a fundamental alteration of its program, or if allowing an

accommodation would constitute a direct threat to the health and safety of others (i.e. a

significant risk of bodily harm) or would cause substantial physical damage to the property of

others, as defined in Section 12179(a)(5) or 12185(d)(9).

(b) Confidentiality Regarding Reasonable Accommodations

(1) All information concerning an individual’s disability, request for an accommodation,

or medical verification or information must be kept confidential and must not be shared

with other persons who are not directly involved in the interactive process or decision

making about the requested accommodation unless disclosure is:

(A) Required to make or assess the decision to grant or deny the request for

accommodation;

(B) Required to administer or implement the requested accommodation;

(D) Required by law.

(1) The individual with a disability seeking a reasonable accommodation must make a

request for such accommodation.

(2) The request for a reasonable accommodation may be made by the individual with a

disability, a family member, or someone authorized by the individual with a disability to

act on their behalf (“representative”).

(3) A request for a reasonable accommodation need not be made in a particular manner or

at a particular time. An individual makes a reasonable accommodation request at the time

they request orally or in writing, or through a representative, an exception, change, or

adjustment to a practice because of a disability, regardless of whether the phrase

“reasonable accommodation” is used as part of the request. A request for a reasonable

accommodation may be made at any time, including during litigation, at or after trial.

(4) The duty to provide reasonable accommodations is an ongoing one. Some individuals

with disabilities require only one reasonable accommodation, while others may need

more than one. Still others may need one reasonable accommodation for a period of time,

and then at a later date, require another type of reasonable accommodation. Each request

must be considered separately under the standards in this article.

(5) Adopting a formal procedure may aid individuals with disabilities in making requests

for reasonable accommodations and may make it easier to assess those requests and keep

records of the considerations given the requests. An individual requesting an

accommodation may be asked to use a form or follow a particular procedure. However, a

person may not refuse a request or refuse to engage in the interactive process because the

individual with a disability or their representative did not use the preferred forms or

procedures. The forms and procedures used may not seek information that is not

necessary to evaluate if a reasonable accommodation may be needed to afford an

individual with a disability equal opportunity to use and enjoy a dwelling or housing

opportunity, such as the information prohibited in section 12178.

(6) A person responsible for responding to accommodation requests must treat a request

by an individual with a disability for assistance in completing forms or in following

procedures, or a request for alternative methods of communication during the reasonable

accommodation process, as a request for reasonable accommodations that must be

responded to in the same manner as any other request. In many circumstances, such

requests, or the person considering the request, may also be covered by the American

with Disabilities Act and the provisions in the ADA and its accompanying regulations

requiring the provision of auxiliary aids and services and alternative methods of

communication.

(7) An individual with a disability may request a reasonable accommodation in financial

policies or policies that impose a financial burden when such accommodations may be

necessary to afford an individual with a disability an equal opportunity under subsection

(a) of this section, subject to the defenses in section 12179. Examples of such economic

accommodations may include: waiving guest fees or other fees; waiving fees or providing

additional time to pay fees for city clean-up of a property; and allowing a prospective

tenant to use a co-signer when their limited income, so limited because of a disability,

does not qualify them for the unit.

(8) Reasonable Accommodation Requests in Unlawful Detainer Actions.

(A) An individual with a disability may raise failure to provide a reasonable

accommodation as an affirmative defense to an unlawful detainer action.

(B) A request for a reasonable accommodation in unlawful detainer actions can be made

at any time during the eviction process, including at or after trial, and in certain

circumstances after eviction. A reasonable accommodation request that is made during a

pending unlawful detainer action is subject to the same regulations that govern reasonable

accommodation requests at any other time. For example:

(i) Rowan is an individual with a disability who receives Social Security Disability on the

sixth day of each month. He is served a three-day notice to pay rent or quit on the second

day of the month, but is unable to pay until after the notice expires. As a result, the owner

files an unlawful detainer action. At trial, Rowan requests an accommodation to pay his

rent on the sixth instead of the first, including allowing a late payment for the month at

issue in the trial. The owner must consider the request under these regulations, including

considering whether it constitutes an undue financial or administrative burden as defined

in section 12179, and engaging in the interactive process under section 12177 as needed.

(ii) Chelsea is an individual with a physical disability. The owner filed a successful

unlawful detainer action unrelated to her disability. Chelsea partially moved out the day

after the trial, but was unable, without help, to move some larger items (e.g. her couch,

bed and dresser) to her new apartment. Because of the disability, she could not lift or

carry anything heavy. She requested some additional time as a reasonable

accommodation to arrange for help to move her furniture. The owner must consider the

request under these regulations, including considering whether it constitutes an undue

financial or administrative burden as defined in section 12179 (for example if the owner

has the capacity to leave the items in the unit for a period of time or if the unit is not re-

rented), and engaging in the interactive process under section 12177 as needed.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12926.1, 12927, 12955, and 12955.3, Government Code; Auburn Woods I Homeowners

Ass’n v. Fair Employment and Housing Com’n (2004) 121 Cal.App.4th 1578.

§ 12177. The Interactive Process.

(a) Whenever a person who receives a request for a reasonable accommodation cannot

immediately grant the requested accommodation, the Act requires the person considering the

request to engage in an interactive process with the individual with a disability or the

individual’s representative. The purpose of the interactive process is to exchange information to

identify, evaluate, and implement a reasonable accommodation that allows the individual with a

disabilityequal opportunity to use and enjoy a dwelling or housing opportunity. The Act does

not predetermine the outcome of any interactive process. However, the Act requires that the

interactive process be timely (pursuant to subsection (d)) and that it be conducted in good faith.

Good faith means the person considering the request must make a fair and honest effort to

engage in the interactive process and to consider the request.

(b) If the person considering the request for accommodation believes they do not have sufficient

information to establish either that a disability exists or the nature of the disability-related need

for the accommodation, or if the nexus between the disability and the requested accommodation

is not clear to the person considering the request for accommodation, the person considering the

request for accommodation must seek clarification or additional information pursuant to section

12178 from the individual with a disability or the individual’s representative. The person

considering the request must not deny it for lack of information without first requesting the

clarification or additional information and providing a reasonable opportunity for the individual

requesting the accommodation to provide it.

cannot be granted for a reason permitted under section 12179(a)(3)-(6), the person considering

the request must try to identify if there is another accommodation that is equally effective and

must discuss with the individual with the disability or the individual’s representative whether

other alternative accommodations would be equally effective in meeting the needs of the

individual with a disability. Equally effective means that the alternative accommodation will

allow the person with the disability to use and enjoy a dwelling or housing opportunity as well as

the requested accommodation would have. If an alternative accommodation would effectively

meet the disability-related needs of the individual and could not be lawfully denied for a reason

permitted under section 12179(a)(3)-(6), the person considering the request must grant it. The

individual requesting the accommodation is not obligated to accept an alternative

accommodation if the alternative accommodation will not meet the needs of the individual with

the disability and the initially requested accommodation could not be lawfully denied for a

reason permitted under section 12179. In many cases, the individual with the disability has the

most accurate knowledge about the functional limitations posed by their disability, and therefore

should be given significant weight.

(d) Requests for reasonable accommodations must be promptly considered as determined on a

case-by-case basis. The time necessary to respond to a request depends on many factors,

including:

(1) The nature of the accommodation under consideration;

(2) Whether it is necessary to obtain supporting information because the disability or the

need for the accommodation is not obvious or known to the person considering the

request;

(3) Whether the accommodation is needed on an urgent basis; and

(4) Whether it is necessary to engage in the interactive process to resolve the request.

(e) An undue delay by the person considering the request, for example, when there is a failure to

act promptly on the need to acquire additional information pursuant to section 12178 or when

there is no response to the request in a reasonable time, may constitute a denial of a reasonable

accommodation. Whether a request has been promptly considered is a case-by-case factual

determination.

(f) A failure to reach an agreement on an accommodation request after a reasonable attempt to do

so is in effect a decision not to grant the requested accommodation. If the individual requesting

the accommodation or their representative has, after a reasonable opportunity, unreasonably

failed to provide relevant information that was requested consistent with the regulations, the

person considering the request may find this failure to be grounds for determining that the

accommodation could not be granted. What will constitute a reasonable attempt, a reasonable

opportunity, or an unreasonable failure to provide relevant information will depend on the

individual facts of every case, but can include factors such as the length of time spent in

discussions or taken to provide information; whether the parties have acted in good faith; and

whether there were clear efforts to communicate what information was required to evaluate the

accommodation.

(g) If after a denial of an initial request for an accommodation, the individual with a disability or

their representative makes a later request for the same or similar accommodation, the latter

request must be considered pursuant to these regulations independently of the initial request.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12926.1, 12927, 12955, and 12955.3, Government Code; Auburn Woods I Homeowners

Ass’n v. Fair Employment and Housing Com’n (2004) 121 Cal.App.4th 1578.

§ 12178. Establishing that a Requested Accommodation is Necessary.

(a) If an individual with a disability or their representative makes a request for an

accommodation that provides reliable information about the disability and how the requested

accommodation is necessary to afford the individual with a disability equal opportunity to use

and enjoy a dwelling or housing opportunity, then the person considering the request may not

request any additional information about the individual’s disability or the disability-related need

for the accommodation.

(b) If the disability of the individual requesting an accommodation is apparent or known by the

person considering the request, and it is also apparent or known how the requested

accommodation is necessary to afford the individual with a disability equal opportunity to use

and enjoy a dwelling or housing opportunity, then the person considering the request may not

request any additional information about the requestor’s disability or the disability-related need

for the accommodation. Known means that the person considering the request is personally

aware of the disability or the need for the accommodation. Apparent means that either the

disability or the need for the accommodation is obvious, although the person considering it did

not know about it before the request was made. For example, if a tenant with quadriplegia who

uses a power wheelchair goes in person to the off-site management office for their apartment

building and requests an accommodation in the form of moving to a first-floor apartment, and the

management office knows that the apartment building does not have a functional elevator, the

management office may not request further information about the disability before evaluating the

request for an accommodation.

person considering the request, but the need for the requested accommodation is not readily

apparent or known, then in order to evaluate the disability-related need for the accommodation,

the person considering the request may request only information that:

(1) Describes the needed accommodation; and

(2) Shows the relationship between the individual’s disability and how the requested

accommodation is necessary to afford the individual with a disability equal opportunity to

use and enjoy a dwelling or housing opportunity.

(d) If the disability of the individual requesting an accommodation is not readily apparent to the

person considering the request, the person may request only information that:

(1) Is necessary to establish that the individual has a disability;

(2) Describes the needed accommodation; and

(3) Shows the relationship between the individual’s disability and how the requested

accommodation is necessary to afford the individual with a disability equal opportunity to

use and enjoy a dwelling or housing opportunity.

(e) A person considering a request for an accommodation may not seek information about:

(1) The individual with a disability’s particular diagnosis or medical condition, the

severity of the disability, medical records, medical history, other disability or medical

issues unrelated to the request, or other disability or health related information beyond the

information identified in subdivision (d) above.

(2) Information unrelated to the inquiry in subdivision (d) above.

(f) Depending on the individual’s circumstances, information establishing that the individual has

a disability can usually be provided directly by the individual with a disability through a variety

of self-certification methods, including documentation of receipt of disability benefits or a

credible statement by the individual with a disability. A credible statement by the individual is

one that a reasonable person would believe is true based on the available information.

(g) Information confirming that the individual has a disability, or confirming that there is a

disability-related need for the accommodation, may also be provided by any reliable third party

who is in a position to know about the individual’s disability or the disability-related need for the

requested accommodation, including:

(1) A medical professional;

(2) A health care provider, including the office of a medical practice or a nursing registry;

(3) A peer support group. Peer support groups are mutual support groups developed as

alternatives to traditional medical or psychological treatments. They provide services

such as education, peer mentoring, peer coaching, and peer recovery resource

connections for groups of people with disabilities or people suffering from a wide range

of trauma or illness;

(4) A non-medical service agency or person, including In-Home Supportive Services or

Supported Living Services providers; or

(5) Any other reliable third party who is in a position to know about the individual’s

disability or disability-related need for the accommodation. This could include a relative

caring for a child with a disability, a relative caring for an elderly family member with

dementia, or others in a caregiving relationship with a person with a disability.

(h) The determination of whether a third party is reliable must be determined on a case-by-case

basis. A determination of reliability may take into account:

(1) Information establishing how the third party is familiar with the individual’s disability

or the disability-related need for the accommodation;

(2) Information that specifies the functional limitations that underlie the request for an

accommodation, but this information need not include specific medical information or

terminology; or

(3) Information providing a means to contact the third party to verify that the person

identified did in fact provide the documentation and to answer any questions permitted by

law.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12926.1, 12927, 12955, and 12955.3, Government Code.

§ 12179. Denial of Reasonable Accommodation.

(a) A requested accommodation may be denied if:

(1) The individual on whose behalf the accommodation was requested is not an

individual with a disability;

(2) There is no disability-related need for the requested accommodation (in other words,

there is no nexus between the disability and the requested accommodation);

(3) The requested accommodation would constitute a fundamental alteration of the

services or operations of the person who is asked to provide the accommodation;

(4) The requested accommodation would impose an undue financial or administrative

burden on the person who is asked to provide the accommodation; or

(5) The requested accommodation would constitute a direct threat to the health or safety

of others (i.e. a significant risk of bodily harm) or would cause substantial physical

damage to the property of others, and such risks cannot be sufficiently mitigated or

eliminated by another reasonable accommodation, pursuant to the following:

(A) A determination that an accommodation poses a direct threat to the health or safety of

others or would cause substantial physical damage to the property of others must be

based on an individualized assessment that relies on objective evidence, not on mere

speculation or stereotype about the requested accommodation or a particular disability or

individuals with disabilities in general;

(B) The assessment of whether the specific accommodation in question poses a direct

threat to the health or safety of others or would cause substantial physical damage to the

property of others must be based on objective evidence, and not unsubstantiated

inferences. The evidence must be sufficiently recent as to be credible. The assessment

must consider:

(i) The nature, duration, and severity of the risk of a direct threat to the health and safety

of others or of substantial physical damage to the property of others;

(ii) The likelihood that a direct threat to the health or safety of others or substantial

physical damage to the property of others will actually occur; and

(iii) Whether there are any additional or alternative reasonable accommodations that will

eliminate the direct threat to the health or safety of others or substantial physical damage

to the property of others; or

(6) If a support animal, as defined in subsection 12005(d)(1), is requested as a reasonable

accommodation, the request may be denied if it would constitute a direct threat to the

health or safety of others or would cause substantial physical damage to the property of

others under Section 12185(d)(9).

(b) The determination of whether an accommodation poses an undue financial or administrative

burden under subsection 12179(a)(4) must be made on a case-by-case basis and must consider

various factors including:

(1) The cost of the requested accommodation;

(2) The financial resources of the person or persons who have a duty under the Act to

provide the accommodation;

(3) The benefits that a proposed alternative accommodation would provide to the

individual with a disability;

(4) The availability of alternative accommodations that would effectively meet the

disability-related needs of the individual with a disability;

(5) Where the entity being asked to make the accommodation is part of a larger entity, the

structure and overall resources of the larger organization, as well as the financial and

administrative relationship of the entity to the larger organization. In general, a larger

entity with greater resources would be expected to make accommodations requiring

greater effort or expense than would be required of a smaller entity with fewer resources;

and

(6) Whether the need for the accommodation arises from the owner’s failure to maintain

or repair the property as required by law or contract, or to otherwise comply with related

legal obligations.

would change the essential nature of the services or operations of the person being asked to

provide the accommodation. For example, if a landlord does not normally provide shopping for

residents, a request to shop for an individual with a disability could constitute a fundamental

alteration.

(d) A person cannot deny a request for a reasonable accommodation based on the person’s or

another individual’s fears or prejudices about the individual’s disability, nor can a denial be

based on the fact that provision of a reasonable accommodation might be considered unfair by

other individuals or might possibly become an undue burden if extended to multiple other

individuals who might request accommodations.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12926.1, 12927, 12955, and 12955.3, Government Code, Auburn Woods I Homeowners

Ass’n v. Fair Employment and Housing Com’n (2004) 121 Cal.App.4th 1578.

§ 12180. Other Requirements or Limitations in the Provision of Reasonable

Accommodations; and Examples.

(a) Other requirements or limitations in the provision of reasonable accommodations include:

(1) It is unlawful to charge a fee or require an additional deposit or financial contribution

as a condition of receiving, processing, or granting a reasonable accommodation.

(2) The fact that an accommodation may impose some cost on the person providing the

accommodation is not grounds for denial of a request, so long as the cost does not

constitute an undue financial or administrative burden, under section 12179.

(3) It is unlawful for a person to request or require that an individual with a disability or

representative waive the right to request a future accommodation.

(b) Examples of Reasonable Accommodation:

(1) Progress Gardens is a 300 unit apartment complex with 450 parking spaces which are

available to tenants and guests of Progress Gardens on a first-come, first-served basis.

John applies for housing in Progress Gardens. John has a mobility disability and is unable

to walk more than a short distance and therefore requests that a parking space near his

unit be reserved for him so he will not have to walk very far to get to his apartment.

Without a reserved space, John might be unable to live in Progress Gardens at all or,

when he has to park in a space far from his unit, might have great difficulty getting from

his car to his apartment unit. The accommodation therefore is necessary to afford John an

equal opportunity to use and enjoy a dwelling. The owner must consider the request

under these regulations, including considering whether it constitutes an undue financial or

administrative burden as defined in section 12179, and engaging in the interactive

process under section 12177 as needed. Because the cost of reserving a space is likely

minimal in light of the overall budget of a 300 unit apartment complex, the

accommodation does not constitute an undue burden as defined in section 12179(b).

Since providing parking spaces is part of the essential operations of the apartment

complex, the accommodation is not a fundamental alteration, as defined in section

12179(c). Therefore, in the absence of additional relevant facts, the requested

accommodation should be granted.

(2) Miguel is an individual with cognitive impairments that limit his ability to manage his

financial affairs. Miguel uses a third party representative payee. He requests that he be

able to pay rent through the payee rather than pay directly from his checking account, and

that any nonpayment notices be sent to his representative payee as well as himself. This

accommodation is necessary because without it Miguel might not be able to pay rent in a

regular and timely manner which is necessary for him to fulfill his obligation as a tenant.

The owner must consider the request under these regulations, including considering

whether it constitutes an undue financial or administrative burden as defined in section

12179, and engaging in the interactive process under section 12177 as needed. Because

the cost is likely minimal in light of the overall budget of most apartment complexes, the

accommodation does not constitute an undue burden as defined in section 12179(b).

Since processing rent payments is part of the essential operations of the apartment

complex, the accommodation is not a fundamental alteration, as defined in section

12179(c). Therefore, in the absence of additional relevant facts, the requested

accommodation should be granted.

(3) Abigail, an individual with a disability, receives only SSI (Supplemental Security

Income), a government benefit based on her inability to work because of her disability.

She requests that she be permitted to add a co-signer on her rental lease in order to meet

the minimum income qualifications. If the combined income of Abigail and the co-signer

constitutes sufficient income to meet the reasonable minimum income qualifications in

light of Abigail’s and the co-signer’s other financial obligations, and if Abigail would not

otherwise be able to rent this apartment, this accommodation may be necessary. The

owner must consider the request under these regulations, including considering whether it

constitutes an undue financial or administrative burden as defined in section 12179, and

engaging in the interactive process under section 12177 as needed. Because the cost is

likely minimal in light of the overall budget of most apartment complexes, the

accommodation does not constitute an undue burden as defined in section 12179(b).

Since making changes to application and screening criteria is part of the essential

operations of the apartment complex, the accommodation is not a fundamental alteration,

as defined in section 12177(c). Therefore, in the absence of additional relevant facts, the

requested accommodation should be granted.

(4) Tuan has quadriplegia and uses a power wheelchair, which can make it difficult for

him to travel. He must make arrangements with a paratransit agency and it cannot always

accommodate his requests without significant advance notice. He requests a reasonable

accommodation for additional time to come into the mortgage lender’s office to sign a

loan modification application, even though the mortgage company’s normal practice is to

give little advance notice of the meeting. This accommodation may be necessary because

without it Tuan may be unable to sign the loan modification application and so receive

the loan. The mortgage company must consider the request under these regulations,

including considering whether it constitutes an undue financial or administrative burden

as defined in section 12179, and engaging in the interactive process under section 12177

as needed. Because the cost is likely minimal in light of the overall budget, the

accommodation does not constitute an undue burden as defined in section 12179(b).

Since processing loan modification applications is part of the essential operations of the

mortgage company, the accommodation is not a fundamental alteration, as defined in

section 12177(c). Therefore, in the absence of additional relevant facts, the requested

accommodation should be granted.

(5) Michiko requests an exception to her property’s no-pets policy as a reasonable

accommodation so that her friend Yoshi, who has a non-apparent disability, is able to

visit with his emotional support animal. Yoshi, as an individual with a disability, is

entitled to reasonable accommodations. Michiko may request such an accommodation on

behalf of Yoshi. As the disability is non-apparent, the owner may request information

establishing the disability and the disability-related need for the animal. Discrimination is

prohibited against individuals associated with an individual with a disability. Denying

Michiko the right to have visitors of her choice, like other tenants, because her visitor has

a disability would constitute discrimination against Michiko because of her association

with an individual with a disability. Because without this accommodation Michiko will

not be able to receive Yoshi as a visitor at her apartment, which is a standard benefit of

being a leaseholder, this accommodation may be necessary to provide Michiko an equal

opportunity to use and enjoy a dwelling, and is therefore a necessary accommodation.

The owner must consider the request under these regulations, including considering

whether it constitutes an undue financial or administrative burden as defined in section

12179 and engaging in the interactive process under section 12177 as needed. Because

the cost to process the request is likely minimal in light of the overall budget, the cost of

providing an accommodation does not constitute an undue burden as defined in section

12179(b). Further, since determining the appropriateness of assistance animals is part of

the essential operations of the apartment complex, the accommodation is not a

fundamental alteration, as defined in section 12179(c). Therefore, in the absence of

additional relevant facts or unless the animal poses a direct threat to the health or safety

of others or would cause substantial physical damage to the property of others, or unless

Yoshi fails to provide the necessary information, the accommodation should be granted.

(Note if Yoshi has a service animal, rather than a support animal, the animal would be

permitted pursuant to subsection 12185(b) without the need to request an

accommodation.)

(6) Marita wants to install a ramp to enable her son, who uses a wheelchair, to enter and

leave her house without assistance. Given the small lot, the ramp will extend slightly

beyond the permitted set-back requirements on Marita’s lot but will still be within

Marita’s property line and will not cross a public right of way. Marita requests a

reasonable accommodation from the city to modify the city’s policy or ordinance

regarding set-back requirements on her property. Because without the ramp Marita’s son

would not be able to use the house like any other dweller (coming and going without

assistance), this accommodation is necessary to afford him an equal opportunity to use

and enjoy a dwelling. The city must consider the request under these regulations,

including considering whether it constitutes an undue financial or administrative burden

as defined in section 12179, and engaging in the interactive process under section 12177

as needed. Because the cost of processing and permitting her request is likely minimal in

light of the city’s overall budget, the accommodation does not constitute an undue burden

as defined in section 12179(b). Since reviewing building alterations is part of the

essential operations of the city, the accommodation is not a fundamental alteration, as

defined in section 12179(c). Therefore, in the absence of additional relevant facts, the

requested accommodation should be granted. The city must not charge Marita a fee for

processing her request, whether or not it is granted, under section 12180(a)(1). (Note that

reasonable accommodations may also be available to Marita if the ramp did extend

beyond her property line into a public right of way, but a further interactive process might

be warranted on those specific facts).

(7) Teresa lives in a second floor apartment in a medium-sized apartment building with a

single elevator that was working when she moved in. Last month her leg was amputated

and she now uses a wheelchair. The elevator in the building is broken. Teresa cannot

leave her home without assistance on the stairs. She requests that the owner expedite

repairs to the elevator and offer her the first available ground floor unit. Her request is

necessary because there is a nexus between Teresa’s disability and her request; without

the requested accommodations she will not be able to access her unit using the common

area. The owner must consider the request under these regulations, including considering

whether it constitutes an undue financial or administrative burden as defined in section

12179 and engaging in the interactive process under section 12177 as needed. Because

the repair would be required by law as part of the owner’s obligation to maintain the

apartment, and if the costs of the requested accommodations are not burdensome in light

of the overall budget of the building, the accommodations would not constitute an undue

burden as defined in section 12179(b). Since making repairs is part of the essential

operations of the apartment complex, the accommodation is not a fundamental alteration,

as defined in section 12179(c). See, section 12179(b)(6). Therefore, in the absence of

additional relevant facts, the requested accommodation should be granted. Depending on

the time it takes to repair the elevator, or particular difficulties for Teresa, additional

accommodation requests may be made that would need to be considered.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12926.1, 12927, 12955, and 12955.3, Government Code; Auburn Woods I Homeowners

Ass’n v. Fair Employment and Housing Com’n (2004) 121 Cal.App.4th 1578.

§ 12185. Assistance Animals.

(a) This section provides guidance as to assistance animals, as defined in subsection 12005(d).

This includes both service animals, as defined in section 12005(d)(1), and support animals as

defined in section 12005(d)(2).

(b) Service Animals. Persons, including tenants, occupants, invitees, owners, and others, are

permitted to have service animals as defined in section 12005(d)(1) in all dwellings (including

common use and public use areas), residential real estate, and other buildings involved in

residential real estate transactions, subject to the restrictions set forth in subsection (d) below.

The only permissible questions that can be asked of an individual to determine if the animal is a

service animal are: 1) “Are you an individual with a disability?” and 2) “What is the disability-

related task the animal has been trained to perform?” It is not permitted to ask the individual with

a disability to demonstrate the task.

section 12005(d)(2) may request a reasonable accommodation related to the individual’s need for

the support animal in dwellings (including common use and public use areas) and residential real

estate, and other buildings involved in residential real estate transactions.

(1) The standards, procedures, and defenses in sections 12176 through 12180 for

evaluating a request for a reasonable accommodation apply to a request to have a support

animal as a reasonable accommodation.

(2) A support animal certification from an online service that does not include an

individualized assessment from a medical professional is presumptively considered not to

be information from a reliable third party under section 12178(f). An individualized

assessment for purposes of this subsection means an assessment based on information

that demonstrates that the individual has a disability, describes the needed

accommodation (including the species of animal), and describes the relationship between

the individual’s disability and how the requested accommodation is necessary to afford

the individual with a disability equal opportunity to use and enjoy a dwelling or housing

opportunity. A person provided with such a certification must provide an opportunity to

the individual requesting the accommodation to provide additional information that meets

the requirements of section 12178 before denying a request for reasonable

accommodation.

(d) All Assistance Animals. Provisions applicable to all assistance animals as defined in section

12005(d), including service animals and support animals, include:

(1) An individual with an assistance animal may also be covered by other legal

obligations relating to assistance animals, such as the American with Disabilities Act,

section 504 of the Rehabilitation Act, Civil Code sections 51, 54.1, 54.2. and 54.7, and

Government Code section 11135, which include additional requirements or prohibitions

relating to assistance animals, and may further restrict the nature and type of inquiry that

may be made concerning assistance animals;

(2) An individual with an assistance animal shall not be required to pay any pet fee,

additional rent, or other additional fee, including additional security deposit or liability

insurance, in connection with the assistance animal;

(3) An individual with an assistance animal may be required to cover the costs of repairs

for damage the animal causes to the premises, excluding ordinary wear and tear;

(4) An individual may have more than one assistance animal. Each animal must be

individually determined to meet the requirements in this article. When an individual

already has a support animal as a reasonable accommodation and requests an additional

support animal as a reasonable accommodation, the person considering the subsequent

request may consider whether the cumulative impact of multiple animals in the same

dwelling unit constitutes an undue burden or fundamental alteration;

(5) No breed, size, and weight limitations may be applied to an assistance animal (other

than specific restrictions relating to miniature horses as service animals under the

Americans with Disabilities Act);

(6) Reasonable conditions may be imposed on the use of an assistance animal to ensure it

is under the control of the individual with a disability or an individual who may be

assisting the individual with a disability, such as restrictions on waste disposal and animal

behavior that may constitute a nuisance, so long as the conditions do not interfere with

the normal performance of the animal’s duties. For example, a leash requirement may

interfere with the ability of a guide dog, signal dog, or service dog to assist an individual,

in which case the animal may be under voice control or otherwise responsive. Similarly, a

“no noise” requirement may interfere with a dog’s job of barking to alert a blind

individual to a danger or someone at the door, but incessant barking all night long or

when the individual is not at home may violate reasonable restrictions relating to

nuisance. Any such conditions may not be more restrictive than those imposed upon other

animals on the property;

(7) Animal vests, identification cards, or certificates are not in and of themselves

documentation of either disability or the need for a reasonable accommodation, other

than as set forth in subsection (c)(2) above;

(8) If an individual with a disability is denied permission to have an assistance animal,

the individual is still entitled to all the rights and privileges that otherwise would have

been accorded the individual, so long as the individual no longer has the animal; and

(9) An assistance animal need not be allowed if the animal constitutes a direct threat to

the health or safety of others (i.e. a significant risk of bodily harm) or would cause

substantial physical damage to the property of others, and that harm cannot be

sufficiently mitigated or eliminated by a reasonable accommodation, including under the

following provisions:

(A) In addition to the reasons set out in section 12179 for denial of a request for a

reasonable accommodation for a support animal as defined in section 12005(d)(2), a

support animal may be denied if:

(i) The specific support animal in question poses a direct threat to the health or safety of

others that cannot be sufficiently mitigated or eliminated by another reasonable

accommodation; or

(ii) The specific support animal in question would cause substantial physical damage to

the property of others that cannot be sufficiently mitigated or eliminated by another

reasonable accommodation;

(B) A determination that an assistance animal as defined in section 12005(d) poses a

direct threat to the health or safety of others or would cause substantial physical damage

to the property of others must be based on an individualized assessment that relies on

objective evidence about the specific animal’s actual conduct. The determination cannot

be made on evidence that is so old it is not credible or reliable, or on mere speculation or

fear about the types of harm or damage an animal may cause or on evidence about harm

or damage that other animals have caused.

a direct threat to the health or safety of others or would cause substantial physical damage

to the property of others must consider:

(i) The nature, duration, and severity of the risk of a direct threat to the health or safety of

others or of substantial physical damage to the property of others;

(ii) The likelihood that a direct threat to the health or safety of others or substantial

physical damage to the property of others will actually occur; and

(iii) Whether there are any reasonable accommodations that will eliminate the direct

threat to the health or safety of others or substantial physical damage to the property of

others. The reasonable accommodation provisions in Section 12176 through Section

12180 must be used to determine whether there is another or additional reasonable

accommodation that would sufficiently mitigate or eliminate the problems creating the

direct threat.

(D) Relevant evidence in determining whether an assistance animal as defined in section

12005(d) imposes a direct threat includes whether there is evidence that the animal in

question is currently engaging in dangerous conduct or has a recent history of overt

dangerous acts, as described under Food & Agric. Code section 31601 et seq. A dog that

has been finally determined by a court of law to a be “potentially dangerous dog” or

“vicious dog” pursuant to Food & Agric. Code section 31601 et seq. shall presumptively

be considered to pose a direct threat to the health or safety of others.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12926.1, 12927, 12955, and 12955.3, Government Code; Section 54.1 and 54.2, Civil

Code, Auburn Woods I Homeowners Ass’n v. Fair Employment and Housing Com’n (2004) 121

Cal.App.4th 1578.

Article 24. Consideration of Criminal History Information in Housing

§ 12264. Definitions.

“Criminal history information” means any record that contains individually identifiable

information and describes any aspect of an individual’s criminal history or contacts with any law

enforcement agency. It includes information describing an individual’s arrests and subsequent

dispositions; information that an individual has been charged with or indicted for a felony,

misdemeanor, or other criminal offense; and information indicating that an individual has been

questioned, apprehended, taken into custody or detained, or held for investigation by a law

enforcement, police, military, or prosecutorial agency, whether or not the contact with law

enforcement led to a criminal conviction. Criminal history information includes both records

from any jurisdiction and records that are not prepared strictly for law enforcement purposes,

such as investigative consumer reports.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12927, 12955, and 12955.8, Government Code.

§ 12265. Prohibited Uses of Criminal History Information.

Any practice of a person that includes seeking information about, consideration of, or use of

criminal history information, as defined in Section 12264, is unlawful if:

(a) It has a discriminatory effect under Article 7, unless a legally sufficient justification applies

under section 12266;

(b) It constitutes intentional discrimination under section 12267;

(d) It relates to practices specifically prohibited under section 12269.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12927, 12955, and 12955.8, Government Code.

§ 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.

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.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12927, 12955, and 12955.8, Government Code.

§ 12267. Intentional Discrimination and the Use of Criminal History Information.

Practices that seek, consider, or use criminal history information may be a discriminatory

practice if they violate Government Code section 12955.8(a) and any implementing regulations

by intentionally discriminating on the basis of membership in a protected class. This includes

cases where selective use of the information is demonstrated to be a pretext for unequal

treatment of individuals who are members of a protected class.

(a) For example, the fact that a respondent has acted upon comparable criminal history

information, or comparable criminal history and mitigating circumstances information,

differently for a member of a protected class than the respondent has acted upon such

information for an individual who is not a member of a protected class may demonstrate pretext.

Respondent’s consideration of any mitigating circumstances shall be among the factors

considered in determining whether the use of criminal history information is pretextual.

(b) If a respondent takes adverse action with respect to criminal history information for some

individuals and not others, and that action is based upon a change in policy made in order to

comply with law or regulation, such adverse action shall not, in and of itself, be considered

unlawful so long as the policy change is uniformly applied.

know of the individual’s criminal history information at the time of the alleged discrimination.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12927, 12955, and 12955.8, Government Code.

§ 12268. Discriminatory Statements Regarding Criminal History Information.

(a) A person’s notice, advertisement, application, or other written or oral statement regarding

criminal history information that violates Government Code section 12955(c) or its

implementing regulations or which conflicts with the provisions in this article and Article 7 shall

be a violation of the Act.

(b) Advertising a lawful screening policy or providing individuals a copy of a lawful screening

policy pursuant to section 12266(d)(5) is not unlawful. Offering an individual an opportunity to

present individualized, mitigating information pursuant to section 12266(d) and (e) is not

unlawful.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12926, 12927, 12955, and 12955.6, Government Code.

§ 12269. Specific Practices Related to Criminal History Information.

(a) It is unlawful for a person to:

(1) Seek, consider, use, or take an adverse action based on criminal history information

about any arrest that has not resulted in a criminal conviction, or based on information

indicating that an individual has been questioned, apprehended, taken into custody or

detained, or held for investigation by a law enforcement, police, military, or prosecutorial

agency;

(2) Seek, consider, use, or take an adverse action based on information about any referral

to or participation in a pre-trial or post-trial diversion program or a deferred entry of

judgment program; provided that if this information was provided by an individual for

purposes of offering mitigating information, a person may consider and use such

information;

(3) Seek, consider, use, or take an adverse action based on information about any

infraction, or any criminal conviction that has been sealed, dismissed, vacated, expunged,

voided, invalidated, pardoned, or otherwise rendered inoperative by judicial action or by

statute (for example, under California Penal Code sections 1203.1 or 1203.4); or for

which a certificate of rehabilitation has been granted pursuant to Penal Code section

4852.01 et seq.; provided that if this information was provided by an individual for

purposes of offering mitigating information, a person may consider and use such

information;

(4) Unless pursuant to an applicable court order, seek, consider, use or take an adverse

action based on any adjudication in the juvenile justice system, or information regarding

a matter considered in or processed through the juvenile justice system; provided that if

this information was provided by an individual for purposes of offering mitigating

information, a person may consider and use such information; or

(5) Implement a “blanket ban” or categorical exclusion practice that takes adverse action

against all individuals with a criminal record regardless of whether the criminal

conviction is directly related to a demonstrable risk to the identified substantial,

legitimate, nondiscriminatory interest or purpose. Examples of such prohibited practices

include bans against all individuals with a criminal record, bans against all individuals

with prior convictions, bans against all individuals with prior misdemeanors, and bans

against all individuals with prior felonies.

(b) While laws regulating investigative consumer reports, such as California Civil Code section

1785.13(a)(6), allow the reporting of certain criminal history information up to seven years from

the date of disposition, release or parole, a court may consider shorter look-back periods in its

determination of whether there is a feasible alternative practice under subsection 12266. A look-

back period limits the inquiry to criminal activity that occurred during a certain amount of time

prior to the present. Look-back periods are intended to ensure that the criminal history

information considered is relevant to the decision being made.

parties are also subject to the requirements of applicable federal and state law regarding such

reports,such as the requirement under the Fair Credit Reporting Act to notify an individual if the

person takes adverse action based partly or completely on the criminal history information

obtained in a consumer report. Such laws include the Fair Credit Reporting Act (15 U.S.C.

section 1681 et seq.), and the California Consumer Credit Reporting Agencies Act and the

California Investigative Consumer Reporting Agencies Act (Civil Code, Div. 3, Part 4, Titles

1.6, 1.61, and 1.6a).

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12927, 12955, and 12955.8, Government Code.

§ 12270. Compliance with Federal or State Laws, Regulations, or Licensing

Requirements Permitting or Requiring Consideration of Criminal History.

In some instances, persons may also be subject to federal or state laws or regulations that require

or prohibit consideration of certain criminal history information.

(a) Compliance by a person with specific federal or state laws that apply to the particular

transaction at issue and require consideration of criminal history information constitutes an

affirmative defense to a discriminatory effect claim under the Act, e.g. Ineligibility of Dangerous

Sex Offenders for Admission to Public Housing (42 U.S.C. section 13663(a)) and Ineligibility of

Individuals Convicted for Manufacturing or Producing Methamphetamine on Premises of

Federally Assisted Housing for Admission to Public Housing and Housing Choice Voucher

Programs (24 CFR section 982.553).

(b) Failure of a person to comply with specific federal or state laws that prohibit consideration of

specific criminal history information, or that require consideration of mitigating factors or

evidence of rehabilitation, in regard to consideration of such history, and that apply to the

transaction, may constitute a violation of the Act.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12927, 12955, and 12955.8, Government Code.

§ 12271. Local Laws or Ordinances.

In some instances, a person may also be subject to local laws or ordinances that provide

additional limitations on seeking, considering, or using criminal history information. Nothing in

this article exempts persons from compliance with those local laws or ordinances; provided that

such local laws or ordinances do not violate the Act or implementing regulations and those

limitations are more protective of individuals in protected classes.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921,

12927, 12955, and 12955.8, Government Code.