Housing providers that use criminal records during the tenant screening process may be violating the Fair Housing Act, according to new guidance from the U.S Department of Housing and Urban Development. This guidance stems from last year’s Supreme Court decision to uphold disparate impact.
According to the guidance, nearly one-third of the U.S. population has a criminal record of some sort. An average of 650,000 individuals have been released from prison annually since 2004. Many of these individuals face significant barriers to securing housing, including public and other federally-subsidized housing because of their criminal history.
Having a criminal record is not a protected characteristic under the Fair Housing Act, but race is. African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. If, without justification, the burden of criminal record-related policies falls more often on renters of one race or national origin over another, this violates the Fair Housing Act.
The guidance explains that “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.” This means that unintentional discrimination could face the some consequences of intentionally treating individuals with comparable criminal histories differently because of their race, national origin, or other characteristic.
In Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions, HUD Office of General Council outlines the three steps used to analyze claims that a housing provider’s use of criminal history to deny housing results violates the Fair Housing Act. This analytical framework is different than the one used to evaluate claims of intentional discrimination.
First, a plaintiff must prove that the policy (tenant screening, for example) has a discriminatory effect by resulting in a disparate impact on a group because of their race or national origin. Second, the housing provider gets the opportunity to prove that the policy is justified because it is necessary to achieve a substantial, legitimate, nondiscriminatory interest. In the third step, the plaintiff must prove that such interest could be served by another practice that has a less discriminatory effect.
Read the full guidance for more information.
Read Ballard Spahr’s analysis here.
