Arrest Record Discrimination Laws in California

Federal law under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) does not explicitly prohibit consideration of arrest records, but the U.S. Equal Employment Opportunity Commission (EEOC) takes the position that blanket policies excluding people with arrest histories can constitute discrimination if the policy is applied disparately against protected classes (race, national origin, etc.). The EEOC enforces this through guidance rather than statute, examining whether arrest policies have a disparate impact on protected groups. The Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) regulates background check companies and requires notice and consent for background checks, but does not restrict what information employers may legally obtain or consider.

Federally, there is no general right to have an arrest expunged or sealed—that depends on state law. The federal system allows consideration of convictions under Title VII if the employer can demonstrate job-relatedness and business necessity. The FCRA requires background check agencies to report only convictions and not arrests unless they resulted in conviction, creating a practical limitation. Enforcement occurs through the EEOC for discrimination claims and the Federal Trade Commission (FTC) for FCRA violations, but the framework is much weaker than state-level protections in California.

California law provides significantly stronger protections against arrest record discrimination than federal law. California Penal Code section 1203.4 is the cornerstone statute, allowing individuals to petition for expungement (dismissal) of arrests that did not result in conviction or that resulted in a conviction that was later dismissed. Once an arrest is expunged, applicants are permitted to answer 'no' if asked whether they have been arrested, and employers are prohibited from considering the expunged record in hiring decisions under Labor Code section 432.7.

California Government Code section 12952 (part of the Fair Employment and Housing Act) explicitly prohibits employers from discriminating based on arrest or detention that did not result in conviction. This is a state-specific protection with no direct federal equivalent. The statute applies to all California employers, regardless of size, with narrow exceptions. A conviction resulting in imprisonment can still be considered if directly related to the job, but arrests alone cannot form the basis for rejection.

California's ban-the-box amendments to Government Code section 12965 require most California employers to delay inquiries about criminal history until after a conditional job offer is made. San Francisco, Los Angeles, and other jurisdictions have enacted stricter local ordinances with shorter timelines or broader restrictions. Public employers (state and local government) face even stricter scrutiny and must engage in individualized assessment of rehabilitation, time elapsed since the conduct, and the nature of the job before considering any criminal history.

California law also requires employers who conduct background checks through third parties to comply with strict notification and consent requirements. Under Government Code section 12965(b), employers must provide notice of adverse action based on criminal history and allow the applicant to dispute inaccuracies. Violations result in civil penalties up to $5,000 per violation and potential damages for intentional discrimination. This framework creates state-specific remedies beyond federal Title VII claims and makes California one of the strongest jurisdictions for arrest record protection in the nation.

California law carves out important exceptions to arrest record protections. First, if an arrest resulted in a conviction, employers may consider that conviction if it is directly related to the specific job applied for and the employer can demonstrate business necessity (Penal Code § 1203.4(b)). 'Directly related' is narrowly construed and requires individualized assessment, not blanket exclusions.

Second, certain professional licenses can inquire into criminal history regardless of expungement status. Positions involving professional licensing (law, real estate, nursing, teaching, etc.) may be exempt because licensing authorities themselves conduct background checks and make independent determinations. However, the employer still cannot reflexively reject based on the record; they must follow the licensing board's guidelines.

Third, positions involving care of vulnerable populations (children, elderly, disabled persons) allow broader consideration of criminal history, though even these roles must apply the individualized assessment standard. This applies to childcare providers, home health aides, and similar positions. The employer must still show the crime is substantially related to the job duties.

Fourth, exceptions exist for peace officers, certain security positions, and roles requiring federal clearances. These positions have specialized legal frameworks outside the general FEHA prohibition. Government employers (federal, state, local) conducting security clearance investigations are not bound by California's ban-the-box law for initial screening.

Fifth, expungement is not automatic. An arrest must have resulted in dismissal, acquittal, or a conviction that was later dismissed or reduced. If a conviction is currently active (not yet completed probation or prison sentence), expungement is not yet available, and the employer may legally consider that conviction through individualized assessment.

Step 1: Document the discrimination. Retain copies of all job applications you submitted, job postings, rejection emails, and any communications with the employer mentioning your arrest record. Write detailed notes with dates and names of anyone who made statements about your record or the reason for rejection. If you underwent a background check, obtain a copy from the background check company (you have the right under the Fair Credit Reporting Act to request this free copy). Keep any evidence showing the employer asked about arrests unlawfully (during initial application, before conditional offer, or asking about expunged records).

Step 2: Attempt internal resolution if feasible. Send a written letter to the employer's HR department (certified mail, return receipt requested) explaining that you believe you were unlawfully rejected or treated adversely based on your arrest record, and cite the specific California statute violated (Labor Code § 432.7 or Government Code § 12952). Request a response within 10 business days explaining their decision and offering the opportunity to reapply or reconsider. Document their response or lack thereof. While not required, this preserves evidence and may lead to informal resolution. Do not expect success if the employer intended discrimination, but it creates a clear record and demonstrates good faith.

Step 3: File a complaint with the California Department of Fair Employment and Housing (DFEH) or the EEOC. You have three years from the date of violation to file with DFEH under Government Code section 12965(d). You can file online at dfeh.ca.gov, by mail to the DFEH office in your region, or by phone. The complaint must include your name, contact information, the employer's name and address, date of the alleged violation, description of what happened, names of witnesses, and copies of supporting documents (application, rejection letter, background check report if obtained). Simultaneously, consider filing a charge with the EEOC (which covers federal law claims), which has a 180-day deadline in non-deferral states but 300 days in California (a deferral state). Both agencies will acknowledge receipt and assign an investigator.

Step 4: Participate in the investigation process. The DFEH investigator will contact the employer for a response, review documents, and may interview you and witnesses. This typically takes 2-6 months. You may be asked to provide additional evidence or clarification. Cooperate fully and promptly respond to all requests. The employer will likely deny discrimination and claim a legitimate, non-discriminatory reason for rejection. The investigator will determine whether probable cause exists that discrimination occurred. If the DFEH finds probable cause, it may attempt to negotiate a settlement or issue a right-to-sue letter allowing you to file in court. If no probable cause is found, you receive a right-to-sue letter anyway, allowing you to pursue civil litigation within one year.

Step 5: Consult an employment law attorney if the DFEH investigation does not resolve the matter or if probable cause is found. An employment discrimination attorney licensed in California can pursue civil litigation under California Government Code section 12965 and potentially Title VII of the Civil Rights Act. The attorney can demand damages for lost wages, emotional distress, and punitive damages (up to $5,000 per violation under Government Code § 12965(b)). Many employment attorneys work on contingency (no upfront fee), taking a percentage of the recovery if you prevail. Litigation typically takes 1-3 years but allows discovery of the employer's hiring practices and potential class action opportunities if other applicants were similarly affected.