Criminal History in Tenant Screening — 2 CCR §§ 12264–12271

California's criminal history screening regulations, at 2 CCR §§ 12264–12271, restrict how a housing provider — landlord, property manager, or homeowners' association — may seek, consider, or act on an applicant's or tenant's criminal history. The rules start from a broad definition of what counts as "criminal history information," carve out specific records that can never be used no matter the circumstances, and require anything else to pass an individualized assessment, not a categorical policy.

These regulations implement Government Code § 12955, part of the Fair Employment and Housing Act — see the California Fair Housing Law overview for the broader framework, and the Reasonable Accommodations & Modifications guide for the disability-related mitigating factors this article cross-references.

2 CCR § 12269(a) flatly prohibits seeking, considering, using, or taking any adverse action based on several categories of records: an arrest that never resulted in a conviction, or being questioned, detained, or investigated without one; a person's referral to or participation in a pre-trial or post-trial diversion program or deferred entry of judgment; any infraction, or a conviction that has been sealed, dismissed, vacated, expunged, or pardoned; and, absent a court order, any juvenile justice system record. Each of those can still be considered if the individual voluntarily offers it as mitigating information in their own favor.

Section 12269(a)(5) separately bars a "blanket ban" — any categorical exclusion that takes adverse action against everyone with a criminal record, or everyone with a prior conviction, misdemeanor, or felony, regardless of whether that conviction is directly related to a real, demonstrable risk. A policy that automatically rejects "anyone with a felony" is exactly the practice this section names as prohibited.

2 CCR § 12265 makes any practice using criminal history information unlawful if it has a discriminatory effect and no legally sufficient justification applies, if it amounts to intentional discrimination, if it produces a discriminatory statement, or if it falls into one of the specifically prohibited practices above. § 12266 sets out what a legally sufficient justification requires: the practice must be necessary to a substantial, legitimate, nondiscriminatory business interest (such as resident safety); it must consider only "directly-related" convictions — weighing the nature and severity of the crime against how much time has passed; and there must be no feasible, less discriminatory alternative that would work as well.

Whether a conviction is "directly related" and whether a less discriminatory alternative exists both turn on individualized facts, including whether the applicant was given a chance to present mitigating information. Section 12266(e) lists what qualifies: being a minor at the time of the conduct, the time elapsed since conviction, a good tenant history, evidence of rehabilitation (including completed parole or probation, or a Certificate of Rehabilitation), whether the conduct arose from being a survivor of domestic violence or a comparable offense, or whether it arose from a disability that could be addressed through a reasonable accommodation.

California law on investigative consumer reports (Civil Code § 1785.13(a)(6)) allows reporting certain criminal history for up to seven years from the date of disposition, release, or parole — but § 12269(b) notes that a shorter look-back period, limiting consideration to more recent conduct, can still be part of showing a feasible, less discriminatory alternative under § 12266. Anyone obtaining a consumer report also remains separately subject to the federal Fair Credit Reporting Act and California's own consumer-reporting statutes, including the duty to notify an applicant when an adverse action is based even partly on the report.

§ 12267 treats inconsistent treatment of comparable records between applicants — or acting on history the provider didn't actually know about at the time — as evidence of intentional discrimination and pretext. § 12268 makes a discriminatory notice, advertisement, or written policy itself unlawful, though advertising a lawful screening policy, or offering an applicant a chance to present mitigating information, is expressly permitted. Finally, § 12270 preserves compliance with other federal or state laws that separately require or bar consideration of specific criminal history (such as sex-offender registration bars on public housing), and § 12271 leaves in place any local ordinance that is more protective of applicants than these state regulations.