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In April 2016, HUD released guidance on criminal background checks and their impact on minorities. The HUD guidance notes that a disproportionate number of Black and Hispanic populations have had contact with the criminal justice system. Because of this, blanket bans on arrests and convictions lead to more minorities being denied housing.
If a housing provider’s policy disproportionately impacts minorities, that policy is a violation of fair housing law unless it serves a substantial, legitimate, nondiscriminatory interest. Some of the obvious concerns of housing providers are protecting the safety of other residents and protecting property.
Because arrests are not proof of any actual misconduct, housing providers cannot have a policy of denying housing to a potential tenant solely because of a prior arrest that did not result in a conviction. Additionally, housing providers cannot impose blanket bans against any criminal conviction. Not all convictions indicate a demonstrable risk to resident safety and/or property. Instead the housing provider should have policies that make sure to consider the nature and severity of the conviction. The housing provider must also consider the time that has elapsed since the criminal conduct occurred. This last requirement comes from studies by experts in criminal law who have found that after a former offender goes six to seven years without engaging in another criminal offense, they are no more likely commit a criminal offense than the general population. The only exception to the blanket ban rule is criminal convictions involving the illegal manufacture and distribution of controlled substances.
Housing providers should also consider whether they can adequately serve their interests with a policy that has a less discriminatory impact. By giving applicants the opportunity to provide more context about the conviction—for example, 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—and taking that context into account when making rental decisions, housing providers would be better able to distinguish between applicants that pose a risk and those who don’t, which is likely to have a less discriminatory effect than categorical bans.
In short, HUD’s guidance on the use of criminal background checks prohibits using the checks as a pretext for discrimination against racial and ethnic minorities. It also prohibits blanket bans against potential tenants with only arrests, but no criminal charges. It asks housing providers to consider the nature, severity, and length of time since the criminal offense occurred. Finally, housing providers must employ the least discriminatory policies that would achieve their goals.
What does this mean for people seeking housing?
If you have been, or have reason to think that you will be, denied housing based on a criminal background check, there are steps you can take:
Contact your local fair housing agency for help.
You can request a copy of your criminal record in California from the California Department of Justice in order to identify and correct inaccuracies.
If you are denied housing based on any kind of consumer report, including a background check, you have a right to request a free copy of the report and dispute any inaccuracies.
Consider options for expunging or reducing convictions. For Californians, this can include Prop 47.
Collect evidence of rehabilitation, good tenant history, and any mitigating factors to include with your rental application.
For more information:
Call Project Sentinel at 888-324-7468
Review the HUD guidance:
For one example of a robust screening policy, see the criminal background screening procedures used by the Housing Authority of New Orleans.
Check out this presentation from the Seattle Office for Civil Rights.
Advocates should watch this helpful webinar on Strategies for Protecting the Fair Housing Rights of People with Criminal Records by the Shriver Center and the National Housing Law Project.
For a detailed analysis of disparate impact and criminal background checks, see Marie Claire Tran-Leung, Beyond Fear and Myth: Using the Disparate Impact Theory Under the Fair Housing Act to Challenge Housing Barriers Against People with Criminal Records, 45 Clearinghouse Rev. 4 (2011).
If you are a housing provider who has doubts about your policy, consult an attorney.