The California Apartment Association urges its members to review their tenant-screening policies to ensure compliance with fair housing rule changes regarding housing vouchers and criminal history information.
CAA’s recommendation comes amid a recent uptick in investigations for violations of fair housing rules at the local, state and national level — specifically those around criminal background checks in the tenant screening process and “No Section 8” policies.
Criminal background check limitations
While landlords are not entirely prohibited from checking the criminal history of an applicant, fair housing regulations place strict limitations on such policies. The use of criminal history information posing fair housing issues has been a growing concern since 2016, when the U.S. Department of Housing and Urban Development (HUD) issued guidance identifying the practice as potentially having a disparate impact on members of certain protected classes, due to the disproportionate number of racial minorities and persons with disabilities involved in the criminal justice system. In 2019, California’s Civil Rights Council (formerly the Fair Employment and Housing Council) enacted regulations that took effect Jan. 1, 2020, which built on the HUD guidance and specifically address the use of criminal history information in housing decisions.
The California regulations include limits on what type of criminal history may be sought, how an applicant’s criminal history can be considered, and what actions a landlord may take based on an applicant’s criminal history. Blanket bans on applicants with a criminal record are prohibited, as are policies that consider arrests without convictions.
Given the complex nature of the California regulations, CAA recommends landlords not conduct criminal background checks without developing appropriate screening criteria and procedures with a knowledgeable fair housing attorney. In line with this guidance, CAA’s Application to Rent form is not designed for criminal background checks. Landlords who wish to consider criminal history information should consult with a fair housing attorney and their screening provider to ensure all forms and processes comply with the law.
Reminder that “No Section 8” policies are against the law
Several amendments in recent years to state fair housing laws also provide enhanced protections for renters that use rental assistance programs to help renters afford housing, such as the Section 8 Housing Choice Voucher program.
In 2019, the California Legislature adopted SB 329, which updated the definition of “source of income” used in the Fair Employment and Housing Act (FEHA) to include government housing subsidy programs, such as Section 8. This change meant that, as of Jan. 1, 2020, state law prohibits landlords from refusing to participate in such programs. Despite being the law since January 2020, some landlords continue to have “No Section 8” policies in place, and the California Civil Rights Department (CRD) is cracking down on violators. Case in point, the CRD announced last week that it had filed a lawsuit against an offending landlord in an effort to prevent future unlawful refusals to accept Section 8 vouchers.
In addition, last year’s SB 267 amended FEHA to prohibit rental property owners from using a person’s credit history as part of the application process – if they have a government rental subsidy, such as Section 8 — without offering the applicant the option to provide alternative evidence of a verifiable legal means to pay their portion of the rent.
CAA encourages its members to review their screening processes to ensure compliance with these fair housing rules.
