Landlords in California: What You Can and Can’t Do When Considering Applicants’ Criminal Histories

California’s Fair Employment and Housing Act (FEHA) seeks to protect tenants and homeowners from discrimination based on protected characteristics like race, national origin, ancestry, disability, sexual orientation, marital status, and religion. The California Civil Rights Department (CRD) enforces FEHA and other California fair housing laws that prohibit housing discrimination.

CRD has issued regulations that interpret FEHA, including those that address when and how housing providers may lawfully consider the criminal histories of applicants and tenants. These regulations have been in effect since January 1, 2020.

What does criminal history information in housing have to do with civil rights?

The use of criminal history in housing decisions can have a disproportionately negative impact on legally protected groups– including African Americans, Hispanic and/or Latino people, and people with disabilities, among others – because those groups face higher rates of arrest, conviction, and incarceration compared to the general population. These higher rates are attributable to a combination of many social and systemic inequities. Criminal history information can also be used to intentionally discriminate. For example, if criminal history background checks are only required for persons of a particular race or if individuals of different racial groups are treated differently in housing decision-making, despite comparable criminal histories. 

California recognizes that, while housing providers have a legitimate interest in screening potential tenants to ensure they can fulfill their obligations as tenants, individuals with criminal histories face barriers to housing. These barriers exist even when a potential tenant’s criminal background bears no relationship to their ability to be a responsible tenant. Because of this and other ways the use of criminal history information in housing decision-making can result in discrimination, California adopted regulations under the Fair Employment and Housing Act with respect to the use of criminal history in housing.

Who does California’s fair housing laws apply to?

In addition to landlords, entities including property management companies, homeowners’ associations, public housing authorities, real estate agents, home sellers, property insurers, builders, mortgage lenders, tenant screening companies, and consumer reporting agencies are required to comply with California’s fair housing laws.

What is the current law as it relates to criminal history in tenant screening?

Housing providers are generally permitted to screen applicants for criminal history. However, any denial or other adverse action taken on that basis must be based on a conviction, as opposed to just an arrest, even if background checks provide information on arrests or other law enforcement contact that did not result in a conviction. Additionally, the conviction underlying the denial must be “directly-related” to the housing circumstances in question. This means that the denial is based on a conviction that has a direct and specific negative impact on the housing provider’s interest. This interest cannot be discriminatory and examples of legitimate interests include the safety of other residents, the housing provider’s employees, or the property. Furthermore, housing providers should consider the context of the conviction, including the nature and severity of the crime and the amount of time that has passed since the criminal conduct occurred. For more information and additional guidance, please review this FAQ prepared by the CRD. 

Can I institute a blanket ban on applicants with a criminal record? 

No, this is a violation of California law. Housing providers cannot make any statement indicating a blanket ban on renting to anyone with a criminal record or a specific type of conviction history. Guidance from the state makes it clear that language such as “no felons” or “we don’t allow criminals here” is considered a violation of the law. 

Can I still conduct a criminal background check?

Yes, it is lawful for housing providers to conduct criminal background screenings, and you may state your intent to do so in the rental listing. 

However, you must ensure that any adverse action (such as denial of the application) is due to a “directly-related conviction.” As described above, this means that  the denial is based on a conviction that has a direct and specific negative bearing on a nondiscriminatory interest or purpose of the housing provider, including the safety of other residents, the housing provider’s employees, or the property. Furthermore, housing providers should consider the context of the conviction, including the nature and severity of the crime and the amount of time that has passed since the criminal conduct occurred. It is also important to consider mitigating information – information that provides context to better understand the circumstances surrounding the conviction such as the age of the person at the time, or their involvement in programs to help address underlying causes of the criminal conduct. For more information and additional guidance, please review this FAQ prepared by the Civil Rights Department.

Are there types of criminal history I can’t consider?

Yes. Even if it appears on a lawfully run background check, it is unlawful in California for you to seek or consider information including:

• Arrests that did not lead to conviction
• Information indicating that an individual has been questioned, apprehended, taken into custody, detained, or held for investigation by law enforcement
• Infractions
• Referral to or participation in a pre-trial or post-trial diversion program or a deferred entry of judgment program (unless the applicant offered this information to the housing provider as mitigating information)
• Criminal convictions that have been sealed, dismissed, expunged, or otherwise rendered legally inoperable (unless the applicant offered this information to the housing provider as mitigating information)
• Adjudications or matters processed in the juvenile justice system (unless the applicant offered this information to the housing provider as mitigating information).

If I do consider criminal history information, what are some best practices?

Implement policies and practices to ensure your consideration of criminal history:

• Is focused on whether a criminal conviction you are using to make a decision is “directly-related” to the housing circumstances
• Allows applicants to provide mitigating information, and that you consider that mitigating information when determining whether to rent to the applicant 
• Provides written notice to all applicants of the opportunity to present mitigating information if a housing provider is concerned about a past conviction; it is best practice to also consider reading levels, literacy levels, and language access when making this information available to applicants
• Consider the factual accuracy of the information 
• Delay seeking or considering criminal history information until reviewing other information on the applicant, including their financial and other qualifications

Where can I learn more?

The State of California’s Civil Rights Department has resources for housing providers available on its website. The Department of Housing and Urban Development (HUD) has also issued guidance on the fair housing implications of the use of criminal history in housing. The 2016 guidance can be found here and the 2022 guidance can be found here.