1. (a) Admissions, expressions of bias, or other direct evidence of discrimination often are probative of purpose or intent but are not necessary to demonstrate that a practice is intentional discrimination.

2. (b) Circumstantial evidence may be relied upon to demonstrate intentional discrimination.

   1. (1) Probative sources of information or methods for determining whether discrimination has occurred include: information concerning the disproportionate or adverse effect of a practice on a protected class or decisions on comparable matters; the historical background of the challenged practice; specific antecedent events leading to the challenged practice; departures from normal procedures or substantive conclusions; contemporary statements of decision-makers and other legislative or administrative history; a pattern of harm to the protected classes; information showing discrimination against members of a protected class based on statistical data that the practice has a disproportionate or adverse effect on members of the protected class and supporting anecdotal evidence; and the use of presumptions, burden shifting, and comparisons between a protected class and other individuals.
   2. (2) Statistical data is one form of circumstantial evidence, but statistical evidence is not necessary to demonstrate that a program or activity constitutes intentional discrimination.
   3. (3) Evidence of disparate impact discrimination, such as that set forth below in section 14029(a), may also be circumstantial evidence of intentional discrimination.
   4. (4) Proof regarding different treatment of similarly situated persons is one way of raising an inference of intentional discrimination, but such proof is not the only way to make a showing of intentional discrimination.

3. (c) Burdens of Proof in Intentional Discrimination Cases Based on Circumstantial Evidence

   1. (1) A complainant, plaintiff, or petitioner first has the burden of establishing a prima facie case of discrimination by showing that the aggrieved individual or individuals: (A) belong to a protected class; (B) were subject to adverse action; and (C) a causal connection or link exists between the individual's or individuals' protected class and the adverse action. A prima facie case establishes a rebuttable presumption of discrimination.
   2. (2) If the complainant, plaintiff, or petitioner satisfies the burden of proof set forth in paragraph (c)(1) of this subsection, the respondent or defendant must then demonstrate a legitimate, non-discriminatory reason for the adverse action.
   3. (3) If the respondent or defendant satisfies the burden of proof set forth in paragraph (c)(2) of this subsection, the burden shifts back to the complainant, plaintiff, or petitioner to demonstrate that the non-discriminatory reason(s) asserted by the respondent are pretextual or are false.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 11135, 12926, 12926.1, 12940, 12955 and 12955.8, Government Code.

History

1. New section filed 3-19-2024; operative 7-1-2024 (Register 2024, No. 12).