Cal. Code Regs. tit. 2 § 12061 : Administration — Department of Fair Employment and Housing — Fair Employment and Housing Council — Discrimination in Housing — Discriminatory Effect — Burdens of Proof in Discriminatory Effect Cases

(a) A complainant must show that the practice they are challenging has a discriminatory effect. This means that, in a legal proceeding, the complainant has the burden of proving that a challenged practice caused or predictably will cause a discriminatory effect.

(b) If the complainant shows that the challenged practice has a discriminatory effect, the respondent can avoid liability by showing that the practice is justified despite the discriminatory effect. In a legal proceeding, this means that once the complainant satisfies the burden of proof set forth in subdivision (a) of this section, the burden shifts to the respondent to prove that the challenged practice meets all of the elements of a legally sufficient justification, as set forth in subdivisions (a) or (b), as applicable, of section 12062.

(c) The opposing party may rebut whether the party with the burden of proof in either subdivision (a) or (b) has met its burden.

(d) Types of evidence that, depending on the facts of the case, are relevant in providing statistics to establish or to rebut the existence of a discriminatory effect include:

(1) National, state, and local statistics;

(2) Applicant files or data;

(3) Tenant/resident files or data;

(4) Conviction statistics;

(5) Demographic or census data;

(6) Local agency data or records;

(7) Police records and court records, including eviction data;

(8) Survey data; and

(9) Other relevant data.

Cal. Code Regs. Tit. 2, § 12061

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12927, 12955, 12955.6 and 12955.8, Government Code; 42 U.S.C. section 3615; and 24 C.F.R. section 100.500 et seq.

1. New section filed 9-16-2019; operative 1/1/2020 (Register 2019, No. 38).