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§ 12042. Burdens of Proof and Types of Evidence in Intentional Discrimination Cases.

2 CA ADC § 12042BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS

Barclays Official California Code of Regulations Currentness
Title 2. Administration
Division 4.1. Department of Fair Employment and Housing
Chapter 5. Fair Employment and Housing Council
Subchapter 7. Discrimination in Housing
Article 3. Intentional Discrimination
2 CCR § 12042
§ 12042. Burdens of Proof and Types of Evidence in Intentional Discrimination Cases.
(a) A complainant must show that the practice they are challenging is motivated by discriminatory intent. This means that, in a legal proceeding, the complainant has the burden of proving that a challenged practice is motivated by discriminatory intent.
(b) An intent to discriminate may be established by direct evidence, indirect evidence (also known as circumstantial evidence) or a combination of direct and indirect evidence.
(c) Direct evidence means evidence that, if believed, proves that discriminatory intent was a factor motivating the respondent's challenged practice without inference or presumption.
(1) Direct evidence includes an express condition stated orally or in writing that conditions a housing opportunity on a protected basis, takes adverse action based on a protected basis, or directs adverse action to be taken based on a protected basis.
(2) Direct evidence also includes an express bias stated orally or in writing that is related to a protected basis.
(d) If direct evidence, or a combination of direct and indirect evidence, shows a person explicitly conditions a housing opportunity on a protected basis, takes adverse action based on a protected basis, or directs adverse action to be taken based on a protected basis, such a practice demonstrates intentional discrimination as a matter of law.
(e) Once a complainant demonstrates intentional discrimination with direct evidence or a combination of direct and indirect evidence, no affirmative defense is available, except with respect to a facially discriminatory policy.
(f) To avoid liability for a facially discriminatory policy, a respondent must show that the policy:
(1) Either:
(A) Objectively benefits a protected class; or
(B) Responds to legitimate safety concerns raised by the individuals affected by the facially discriminatory policy, rather than being based on stereotypes about them; and
(2) Is the least restrictive means of achieving the identified purpose.
(g) A facially discriminatory policy or express statement will also violate subsection 12955(c) of the Act and Section 12050 of these regulations.
(h) Indirect evidence, or circumstantial evidence, is evidence that relies on an inference to connect it to a conclusion of fact. By contrast, direct evidence supports the truth of an assertion directly without need for any additional evidence or inference. Indirect evidence includes comparative evidence, statistical evidence, anecdotal evidence, and historical evidence.
(i) Evidence that is relevant to either a prima facie case or to rebut an affirmative defense includes evidence related to the historic background of the decision, the specific sequence of events leading up to the challenged decision, departures from the normal procedural sequence or criteria for the decision, evidence that the housing opportunity remained available or was rented or sold to a person who is not a member of the complainant's protected class, statements by decision makers, or evidence that the respondent's treatment of others who are not members of the relevant protected class is different than treatment of the complainant.
(j) Burdens of proof in cases involving indirect evidence of discrimination:
(1) A complainant first has the burden of establishing a prima facie case of discrimination. To do so, a complainant must raise an inference that the challenged practice is motivated by discriminatory intent. The specific elements of a prima facie case vary depending upon the particular facts, but include the following:
(A) An individual is a member, or individuals are members, of a protected class, including under subsection 12955(m) of the Act;
(B) The individual was, or individuals were, subject to adverse action regarding a housing opportunity or may be subject to such adverse action; and
(C) The member's or members' status as protected class members was or is a motivating factor for the adverse action.
(2) If the complainant meets its burden under subsection 12042(j)(1), then the burden shifts to the respondent to produce evidence that the challenged practice was solely motivated by a legitimate, non-discriminatory reason.
(3) If the respondent meets the burden under subsection 12042(j)(2), the complainant must show that the non-discriminatory reason asserted by the respondent is pretextual, false, or not the only reason. For example, persuasive evidence of a discriminatory reason in addition to, or other than, the non-discriminatory reason asserted by the respondent would defeat or bar the defense. Evidence that the reason a respondent proffers for a defense under this section did not exist or was not known to the respondent at the time of the alleged violation is relevant to show that the proffered reason is false.
(4) A complainant does not need to prove that every individual who participated in a challenged practice was motivated by discriminatory intent in order to establish liability. It is sufficient for the complainant to prove that a person performed an act motivated by discriminatory intent, that the act was intended to cause an adverse action, and that the ultimate decision maker relied on the act in making the final decision to take an adverse action against the complainant.
(k) The complainant retains the ultimate burden of persuasion on the discriminatory motivation throughout the case.
(l) If a respondent demonstrates that a practice challenged as causing a discriminatory effect in Article 7 is supported by a legally sufficient justification, as defined in section 12062, such a demonstration does not constitute a defense against a claim of intentional discrimination under this Article.
Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12926.1, 12927, 12948, 12955, 12955.6 and 12955.8, Government Code.
HISTORY
1. New section filed 11-19-2021; operative 1-1-2022 (Register 2021, No. 47).
This database is current through 4/22/22 Register 2022, No. 16
2 CCR § 12042, 2 CA ADC § 12042
End of Document