Section 12267 - Intentional Discrimination and the Use of Criminal History InformationPractices 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.(c) Pretext also may be shown where evidence establishes that the respondent did not actually know of the individual's criminal history information at the time of the alleged discrimination.Cal. Code Regs. Tit. 2, § 12267
1. New section filed 9-16-2019; operative 1-1-2020 (Register 2019, No. 38). Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12927, 12955 and 12955.8, Government Code.
1. New section filed 9-16-2019; operative 1/1/2020 (Register 2019, No. 38).