Compliance · 8 November 2026 · 6 min read

A California court says Fair Chance Act assessments are not privileged

The ruling is about discovery, not liability. But the two are connected: a Fair Chance Act assessment you cannot produce is an assessment you cannot prove you made.

By Marko Ivanov

A California appeals court has ordered the City of Torrance to produce the individualized assessment records behind 23 criminal-history hiring decisions, rejecting the city’s claim that attorney-client privilege and work-product protection covered the documents. The case isCivil Rights Department v. City of Torrance, No. B352855 (Cal. Ct. App. Sept. 29, 2026), certified for publication on 27 October 2026.

The decision does not decide whether Torrance violated the Fair Chance Act. The Civil Rights Department’s investigation is still open. What the court decided is narrower and, for employers, more immediately useful: when an employer tells a regulator that it complied with the Act, it can be required to show the analysis that made compliance possible, even if a lawyer helped prepare it.

What happened

In September 2022 Torrance extended a conditional offer for a custodian position. A background check turned up multiple convictions. The city withdrew the offer, and the applicant complained to the California Civil Rights Department, alleging discrimination based on criminal history under the Fair Chance Act, Government Code §12952.

The Act allows a criminal-background check after a conditional offer, but it requires an individualized assessment before the employer may rescind the offer. The assessment has to weigh the seriousness of the offense, the time that has passed, and the nature of the job, among other factors. Torrance told the Department that it had done that: it said the applicant’s 2019 conviction for fighting in a public place was recent and relevant enough to a role involving daily public interaction, and it accepted his explanations for older convictions.

The Department widened the inquiry. It alleged that the city had a pattern of disqualifying applicants without the required assessments and sought the records for 23 applicants whose files had been reviewed the same way. When the Department asked for the assessment templates and evaluation documents, the city refused. An in-house attorney had helped prepare the assessments, the templates contained the attorney’s conclusions about what the law required, and the city claimed privilege.

The trial court ordered production. The Court of Appeal affirmed.

Why the privilege claim failed

California has long held that a party that puts the quality of an investigation at issue can waive privilege over the materials behind it. The court applied that principle to the Fair Chance Act. Torrance told the Department it had complied with §12952. It could not then refuse to hand over the documents that would show whether it had. The city, the court said, "cannot demonstrate it complied with section 12952 without putting at issue the adequacy of the individualized assessments."

The court also addressed the structural risk the city’s position would create. If routine involvement of in-house counsel were enough to shield the process, an employer could sidestep the Act by "simply delegating that task wholesale to in-house counsel." The privilege protects legal advice; it does not convert the assessment itself into legal advice just because a lawyer touched it.

What the court did not decide

The ruling is about discovery. It does not hold that Torrance discriminated against anyone, and it does not set a standard for how detailed an individualized assessment must be. The Department’s investigation continues, and a later decision on the merits could say something different about the substance of the city’s process.

Nor does the decision abolish privilege in criminal-history decisions. An employer can still consult counsel, and communications that are genuinely legal advice can still be protected. What the case rejects is the idea that the underlying assessment becomes privileged because counsel helped design it, at least once the employer points to that assessment as proof of compliance.

What employers should take from it

The practical lesson is not "do not involve counsel." It is that the assessment record is the defense, and it should be written as if someone outside the company will read it. In California, and increasingly in other fair chance jurisdictions, the regulator can ask for the file. A process that exists only in a recruiter’s head, or only in a vendor’s auto-rejection rule, is difficult to defend even when the decision was correct.

Write a contemporaneous assessment for each applicant.The record should identify the conviction, the job, the factors considered, the information the applicant submitted, and the reason for the decision. A template that recites the factors without applying them is not an assessment.
Tie the analysis to the job. The seriousness of the offense alone is not enough under California law. The record should explain why this record, for this role, supports the decision.
Keep the whole sequence. The conditional offer, the criminal-history inquiry, the notice, the applicant’s response, the assessment and the final decision are one record. A gap in the sequence is the first thing a regulator will ask about.
Do not let the matrix make the decision. The screening program toolkit includes an adjudication matrix and an assessment worksheet; both are useful because they narrow what needs reasoning. The matrix is not a substitute for the reasoning, and this case is a reminder that the reasoning has to be written down.
Retain the records for the period the law requires. The assessment is evidence. A record that has been deleted on a routine schedule is not available to defend the decision that produced it.
Coordinate with counsel without assuming a shield. Legal advice can be privileged; the factual assessment behind a hiring decision is much harder to protect once the employer relies on it.

The bottom line

The Fair Chance Act already required an individualized assessment. The Torrance decision adds a practical consequence: if the employer tells a regulator that the assessment was done, the regulator can ask to see it, and involving a lawyer in the process does not automatically put it out of reach. The employers best positioned after this case are the ones whose files already show the analysis, not the ones whose policy says it happens.

Sources

Published 8 November 2026. Nothing here is legal advice; see the terms of use.