CONVICTED SEX OFFENDERS ARE NOT A “PROTECTED CLASS”
May 8, 2006
On April 27, 2006 , the California Attorney General (A.G.) published Opinion No. 05-301, in response to a question posed by a member of the Assembly: “Does the prohibition against the unauthorized use of registered sex offender identifying information, obtained from the “Megan’s Law” website, qualify registered sex offenders as a “protected class” for purposes of housing discrimination under the Fair Employment Housing Act (FEHA)?”
The opinion of the A.G. is that sex offenders are NOT a “protected class,” for purposes of housing discrimination under FEHA.
As General Counsel to the California State Sheriffs Association (CSSA), we had been asked to provide input to the Attorney General, before an official opinion was written, and we had urged the A.G. to reach just that conclusion.
Penal Code section 290.46, known as “Megan’s Law,” requires the Department of Justice (DOJ) to make available to the public, on its website, information regarding certain convicted sex offenders. When enacting the law, the Legislature stated, in part, that it “does not intend that the information be used to inflict retribution or additional punishment on any such person convicted of a sexual offense.” As such, P.C. section 290.46(j)(2) prohibits the “use of any information that is disclosed pursuant to this section for purposes relating to any of the following… (G) Housing or accommodations.”
The law incorporates both criminal and civil penalties for the misuse of such information and, therefore, denying a convicted sex offender housing, based on information obtained from the Megan’s Law website, would be a violation of the Penal Code. However, as the Attorney General states, despite that fact, “nothing in subdivision (j)(2)(G) designates registered sex offenders as individuals belonging to a “protected class” under (FEHA).”
In our legal opinion to the Attorney General we pointed out that recovery under FEHA is limited to classes of persons expressly protected by the statute. The language of FEHA is clear and prohibits discrimination in employment and/or housing because of “race, color, religion, sex, martial status, national origin, ancestry, familiar status, disability or sexual orientation.” (Gov’t Code section 12920).
The Attorney General also states, in Opinion No. 05-301, “a claim of housing discrimination must demonstrate, among other things, that the person is a member of a class protected from such discrimination.”
FEHA expressly provides that decisions regarding housing can be based on factors other thanthose enumerated in the statute. The designation of “convicted sex offender” is an “other factor” since it is not one of those enumerated in the statute.
The A.G.’s Opinion then sets forth what protections exist in FEHA, and opines that a “registered sex offender may be denied housing “to protect a person at risk” or for some other reason that is authorized by a specific provision of law.”
Therefore, although the Penal Code prohibits the use of information disclosed pursuant to P.C. section 290, FEHA does not and, as such, does not create a “protected class” merely because the Penal Code is violated.
It is important to note that an A.G. opinion is not the law…it is just the A.G.’s opinion. However, the courts give an official opinion from the Attorney General “great weight” in deciding a case involving that issue.
HOW THIS AFFECTS YOUR AGENCY
If the A.G.’s opinion had come out differently, there could have been a significant impact on government agencies, perhaps even imposing a duty to protect such persons from discriminatory actions by landlords. However, it doesn’t appear, from this Opinion, that law enforcement agencies will be affected in any substantial way.
There may be an affect on city attorneys and county counsels if lawsuits arise as a result of law enforcement agencies providing information which, ultimately, causes a denial of housing and/or employment. But such actions, if based on reasons other than those set forth in FEHA, will not create a “protected class” for convicted sex offenders
Law enforcement can continue to utilize the “Megan’s Law” website for the purpose intended when it was created – to protect persons at risk and the community, at large.
As always, we urge that you confer with your agency’s legal counsel before relying on the information set forth above. If you wish to discuss this matter in greater detail please feel free to contact me at 714- 446-1400 or by e-mail at mjm@jones-mayer.com.