HUD issues overreaching guidelines on criminal background checks in tenant screening

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Most rental housing policies that exclude applicants with criminal backgrounds are likely in violation of fair housing laws, according to new guidelines from the Department of Housing and Urban Development.

Coming on the heels of the recent U.S. Supreme Court decision upholding claims under the federal Fair Housing Act based on “disparate impact” or “discriminatory effect,” the new guidelines describe how the use of criminal background checks can result in liability for unlawful discrimination.

Julián Castro

Julián Castro

HUD Secretary Julián Castro has said, “No American should ever be discriminated against because of their race or ethnicity, even if that discrimination results from a policy that appears neutral on its face. Black and Latino Americans are unfairly arrested at significantly higher rates than white Americans.”

While ex-offenders are not a protected class under the Fair Housing Act, and HUD has stated that in some cases it might be legal and reasonable to turn them down for housing, the guidelines make it nearly impossible to do so.

Specifically, a criminal background screening policy that has a discriminatory effect is unlawful unless the landlord can prove “it is necessary to serve a substantial, legitimate, non-discriminatory interest of the housing provider.” Even then, if a plaintiff can prove that another, less discriminatory purpose would serve the same interest, the screening policy violates the law.

The guidelines specifically state that policies denying housing based on arrest records are indefensible. With respect to policies based on convictions, the guidelines state that a blanket prohibition on applicants with conviction records, ”no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then,” are also illegal.

Even a narrowly tailored policy requires the landlord to be able to show that the policy “accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.”

“We always urge owners not to use a blanket policy and to look at the tenant’s ability to pay rent and be a good tenant,” Debra Carlton, senior vice president of public affairs for CAA, said in this New York Times article about the HUD guidelines.

However, a policy that meets that standard is still not sufficient to shield a landlord from liability for discrimination, if the plaintiff can show that a “less discriminatory alternative” exists. According to HUD, this alternative includes making an “individualized assessment of mitigating information” about the ex-offender, rather than applying a standard policy.

This could include consideration by the landlord of “the facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the conduct; evidence that the individual has maintained a good tenant history before and/or after the conviction or conduct; and evidence of rehabilitation efforts.”

This evaluation of an individual’s likelihood of reoffending is difficult, if not impossible for criminal justice experts, not to mention landlords. In addition, “individualized assessments” open the door to a host of other fair housing complaints that standardized policies are designed to avoid.

The California Apartment Association recommends that owners and managers immediately review their existing criminal background check policies with knowledgeable fair housing attorneys.

“We always urge owners not to use a blanket policy and to look at the tenant’s ability to pay rent and be a good tenant,” Debra Carlton, senior vice president of public affairs for CAA, said in this New York Times article about the HUD guidelines.

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