Media Center

Outright refusal to rent to applicants with a criminal record may seem like a simple and efficient way to mitigate certain unwanted risk. But housing discrimination law adds nuance in your approach to drafting your advertisements to include criminal background preference, in performing background checks for certain applicants, and in exercising preference for those applicants without a criminal history.

Consideration of criminal records impacts this industry at the outset as well as after the landlord-tenant relationship is created. Initially, housing providers need to be cautious of discriminatory behavior in offering housing. California's strong anti-discrimination laws prevent advertising and housing applicant choices along lines that would exclude protected classes. (These include race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, disability, veteran or military status, or genetic information.)

While "criminal histories" are not among these protected categories, blanket advertisements stating "no criminal records" could result in unintended discrimination. Housing providers can advertise that they will run criminal background checks, but their protocols must perform them in all circumstances, not ones that track specific, protected classes.

When a housing provider does perform blanket checks and considers them in providing offers to lease, criminal history should only become a selection factor where the past crime affects the applicant's ability to meet obligations of the tenancy or presents a direct threat to the health and safety of other occupants. (Of course, these problems are difficult to divine in advance of the landlord-tenant relationship.)

In evaluating this factor, housing providers may be concerned about potential liability to other tenants/strangers. Fortunately, the California Supreme Court has recognized the conundrum that would result from foisting liability on the landlord that could only be avoided by discriminating against all applicants with criminal records. A landlord should only be found liable for renting to a tenant with criminal record where there is an extraordinarily foreseeable chance that harm will result to another tenant, and they only have a duty to evict such a tenant where harm to another on the grounds is highly foreseeable.

In short, you may advertise that criminal background checks will be performed for all applicants (you then must actually perform them in all circumstances), you may refuse to offer housing only when the past conviction poses an immediate/imminent threat, and you must evict only when harm or violence toward renters/neighbors has occurred or becomes highly foreseeable.