Mediator’s Minute: Will Criminal History Be A New Protected Class in CA? Examining AB2064
- Shireen Wetmore
- May 27
- 5 min read
Updated: Jun 2
In February 2026, a new bill, AB2064, was introduced in the California Assembly. The bill proposes to amend the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act to add a new protected characteristic of “criminal history.” The implications for this amendment are vast and could overlap with many of the statutes already in place to protect individuals during the hiring process, as well as the emerging framework of AI-related statutes aimed at protecting consumers.
What Is A Protected Class?
As a mediator, I sometimes find myself in the challenging position of having to explain that, while certain behavior may be icky, awful, disappointing, or even abhorrent, it is not actionable. This comes up frequently in cases alleging discrimination. These types of claims place an additional burden on plaintiffs beyond alleging that the “bad” behavior occurred. Plaintiffs must also allege a connection between the behavior complained of and a protected class or characteristic. In some cases, one need only establish that one was associated with or perceived to be part of that protected class, but in any case, the protected class aspect is one of the essential elements of the claim. For the purposes of this brief article, we will not be discussing the many, many other nuances of these types of claims. However, a short refresher on protected categories may be useful here.
Federal laws establish protections for employees from discrimination based on protected classes, such as race, color, religion, sex (including pregnancy, sexual orientation, or transgender status), national origin, age (40 and older), disability, and genetic information. See “Who is protected from employment discrimination,” EEOC Small Business Resource Center, available at https://www.eeoc.gov/employers/small-business/3-who-protected-employment-discrimination (last visited May 2026). Federal law establishes a floor, but states are permitted to expand protections to additional categories of employees, and they do.
For example, both Michigan and Washington state laws protect against discrimination by employers on the basis of weight. A 2019 decision by the Supreme Court of the State of Washington held that obesity qualifies as an impairment under the Washington Law Against Discrimination (WLAD). See Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 444 P.3d 606, 2019 Wash. LEXIS 456. In Taylor v. Burlington N. R.R. Holdings, Inc., the Court explained that, while being overweight itself may not be a protected characteristic, “obesity always qualifies as an impairment under the plain language of [state statute] RCW 49.60.040(7)(c)(i).” Id. at ¶35. The Court then drew the line from the qualifying impairment to the viable discrimination claim as follows:
Plaintiffs making a disparate treatment claim under the WLAD need not show that they actually had an impairment, e.g., that they actually were suffering from obesity. They need show only that their actual or potential employers perceived them to have a statutory impairment. RCW 49.60.040(7)(a)(iii). Because obesity qualifies as an impairment under the plain language of our statute, it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese. See RCW 49.60.180.
Id. Michigan, however, explicitly lists weight as a protected category, codified under the Elliott-Larsen Civil Rights Act (ELCRA), which prohibits discrimination on the basis of “religion, race, color, national origin, age, sex, sexual orientation, gender identity or expression, height, weight, familial status, or marital status.” MCL - Section 37.2102 (emphasis added). These are just two examples of states expanding protections to employees beyond those existing under federal law.
Proposed Bill Would Add A Protected Category For Criminal History To Both FEHA And The Unruh Act
California, New York, Washington and Michigan are among the many states to have enacted broad protections for employees (including prospective and former employees). California’s AB2064 aims to further expand protections to combat discrimination on the basis of one’s criminal history.
The original version of the bill added a new definition to section (1) of the UNRUH Act, which protects individuals from discrimination in both housing and employment. The Act currently provides protections for all individuals to be free from discrimination on the basis of “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.” Cal. Civ. Code § 51(b).
The original proposal described the new category as “formerly incarcerated status.” Further amendments to the bill were added and the current proposal now amends the Act to include a category for “criminal history,” defined in the proposed new subsection (e)(1) as “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.” Significantly, the amendments also introduced the new protected category to FEHA, extending these protections to the employment and housing contexts. The current proposal adds the category of “criminal history” to Government Code Sections 12920, 12921, 12926, 12940, and 12955, along with a definition for “criminal history” that “includes any record of an individual’s involvement with the state or federal criminal legal system, including being arrested, charged, convicted, records that have been sealed, pardoned, dismissed, expunged, statutorily eradicated, set aside, or otherwise resolved, as well as referral to a pretrial or posttrial diversion program or any juvenile court adjudication or action.” The proposal also contains language allowing for a refusal to hire or termination based on criminal history following an individualized assessment under Section 12952 of the Government Code (the Fair Chance Act) and proper notice. See AB2064 proposed section 12940(a)(6).
While the bill is currently in committee and held in suspension (as of May 14, 2026), the implications are immense. There currently exist many avenues through which employees (including prospective and former employees and candidates for employment) may seek redress based on adverse employment actions related to criminal history. Beyond The Fair Chance Act, California’s Investigative Consume Reporting Agencies Act (ICRAA), Cal. Civil Code §§ 1786 et seq., and the federal Fair Credit Reporting Act both cross into this territory, as do several government agencies aimed at enforcing the various statutes. There is also significant, and ever growing, precedent interpreting the nuances of each of the existing protected categories. Adding a new category will bring new questions for the courts to interpret. It will be interesting to watch the progress of this bill, and the debate surrounding it. Whether or not it leaves committee, the debate itself highlights a public policy focus on the impact of criminal history. Follow the bill here: https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=202520260AB2064.
Shireen Wetmore is a mediator specializing in complex employment matters and can be reached for questions, comment, or booking at www.shireenwetmoremediation.com.
This Mediator’s Minute is for informational purposes only and does not constitute legal advice.
