April is Fair Housing Month.
HUD kicked it off with issuing guidelines for the use of criminal records by housing providers. Using the Disparate Impact theory, HUD has stated that a landlord may violate the Fair Housing Act if the practice of using criminal background records has a disparate impact on a protected class under the Act.
What is Disparate Impact?
By definition, Disparate Impact is a policy or practice which is neutral on its fact but statistically significant negative effect on a group of persons protected by the non-discrimination law. In other words, a housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. Under the new guidelines issued by HUD regarding the use of criminal background records, if a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such a policy or practice is unlawful under the Fair Housing Act. These type of claims are based on statistics and expert analysis.
A housing provider, however, can maintain a policy that causes a disparate impact if they can prove that the policy is necessary to achieve a legitimate interest that is not discriminatory. So what can a housing provider do? Be proactive.
Housing providers will need to establish a criminal background check policy that allows for an individualized assessment of each potential tenant beyond the information contained in a criminal record. In addition, an arrest is not enough to deny an applicant. There must be a conviction and then an individualized assessment to establish that the policy utilized by the housing provider is justified by a substantial, legitimate, and nondiscriminatory interest (e.g., safety and protection of other residents).
The following are some examples of factors that a housing provider should consider when establishing an individualized assessment of a tenant with a criminal record:
- Time since the conviction;
- Age of the applicant at the time of the offense;
- Seriousness and specific circumstances of the offense;
- The number of offenses;
- Any relevant evidence of rehabilitation or lack thereof;
- Evidence of good tenant history before/after conviction;
- Any other relevant information, including information submitted by the applicant or requested by the Company.
The best thing a housing provider can do is establish a written criminal background check policy and make sure the policy is followed consistently.