California Proposes Adding ‘Criminal History’ as a Protected Characteristic

Quick Hits

• California’s AB 2064 would add “criminal history” as a new protected characteristic under both the Unruh Civil Rights Act and FEHA.
• Employers would retain the ability to consider criminal history through an individualized assessment under the Fair Chance Act, but would be required to demonstrate that the conviction directly and adversely relates to specific job duties before denying employment.
• The bill builds on California’s existing Fair Chance Act framework rather than replacing it, and if enacted would significantly expand employer obligations around criminal history inquiries across employment, housing, and business accommodation contexts.

What the Bill Would Do

At its core, AB 2064, which was introduced by Assembly Member La-Shae Sharp-Collins (D-San Diego) and amended on April 6, 2026, would amend two foundational California civil rights statutes to prohibit discrimination based on a person’s criminal history.

The bill would add “criminal history” to the Unruh Civil Rights Act’s list of protected characteristics—which currently includes sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, and immigration status. The bill defines “criminal history” for purposes of the Unruh Act to mean a documented record of criminal offenses for which a person has been arrested, charged, convicted, incarcerated, or referred to a pretrial or posttrial diversion program.

AB 2064 would also add “criminal history” to FEHA’s provisions on protected characteristics in employment and housing. The FEHA definition is broader than the Unruh Act definition: it encompasses any record of an individual’s involvement with the state or federal criminal legal system, including arrests, charges, convictions, records that have been sealed, pardoned, dismissed, expunged, statutorily eradicated, or set aside, as well as referrals to diversion programs and juvenile court adjudications or actions. It is not clear why the two definitions differ, and they might be harmonized in a later amendment.

A Critical Carve-Out for Employers

The bill would not eliminate an employer’s ability to consider criminal history altogether. Under the proposed amendments to Government Code Section 12940, an employer may still deny an applicant a position—or discharge a current employee—if the employer conducts an individualized assessment pursuant to the Fair Chance Act (Government Code Section 12952) and determines that the person’s criminal history directly and adversely relates to the specific duties of the job. An employer that reaches that conclusion would have to provide the applicant or employee with a written notice explaining its reasoning and allow at least five business days to respond before making a final decision. The bill also specifies that for disparate impact claims, an employer would have to demonstrate that its policy is either required by federal or state law, or is job-related and consistent with business necessity, and that the conviction history bears a direct and adverse relationship to the specific job duties.

How This Fits Into the Existing Framework

California already has substantial legal infrastructure governing the use of criminal history in employment decisions. The Fair Chance Act prohibits most employers with five or more employees from inquiring about conviction history before making a conditional offer of employment and requires an individualized assessment before rejecting an applicant based on a conviction. AB 2064 builds on top of that framework rather than replacing it. The bill expressly states that its criminal history provisions are in addition to those in Section 12952 and any other applicable law, and that local jurisdictions would not be limited from enacting additional protections.

Should AB 2064 advance and ultimately be signed into law, California employers would face meaningful new obligations—not just in hiring, but in how they handle criminal history inquiries across employment, housing, and business accommodation contexts.

Ogletree Deakins’ California offices and Employment Law Practice Group will continue to monitor AB 2064 as it progresses through the legislative process, and will provide updates on the Background Checks, California, and Employment Law blogs as additional information becomes available.

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