09-26-2019 | Legal News

Criminal Screening under Fair Housing

By: Katherine McKain

While having a criminal record is not a protected characteristic under the Fair Housing Act (“FHA”), the U.S. Department of Housing and Urban Development (“HUD”) closely regulates criminal history-based restrictions on housing if, without justification, criminal history-based restrictions burden renters of one race or national origin over another. Landlords may perform criminal background screening, but must do so in a manner that does not violate the FHA. 

According to HUD, nearly one-third of the U.S. population has a criminal record and the misuse of background checks during resident screening can hinder their ability to find housing. Black and Latino Americans are incarcerated at rates disproportionate to the general population. Consequentially, criminal based barriers to housing are likely to have a disproportionate impact on minority home seekers. To comply with HUD and the FHA, landlords using criminal background checks as part of their application process must ensure the criminal related criteria has no “disparate impact on individuals of a particular race, national origin, or other protected class.”

Best Practices for Landlords:

Landlords should have a written policy specifying the criminal criteria and justifications for why the crimes examined pose the greatest threat to the interests of the landlord and the residents/their property. The criteria should consider the type of crime, timeframe since the crime occurred, and other mitigating evidence (i.e., severity of the crime, re-offenses since original conviction, age of individual at the time of the conduct, evidence of tenant history before and/or after conviction, evidence of rehabilitation efforts, etc.). 

The following are a few tips to help landlords comply with the FHA and HUD:

  • Landlords may not institute a blanket ban on all applicants with a criminal history;
  • Landlords may not reject an applicant based upon an arrest that did not result in a conviction;
  • Landlords must treat comparable criminal histories similarly without consideration of race, national origin, or other protected class status;
  • Landlords should screen applicants based on financial and other qualifications first and only conduct a criminal background check if the applicant appears to be otherwise qualified (this will protect you from denying an applicant based upon another qualification and risking argument from applicant that they were denied based on criminal background);
  • If background check reveals criminal history, evaluate the nature of the crime and other mitigating factors; and
  • If denying an applicant for criminal history, the landlord should add detailed notes to their internal file, explaining why the denial was appropriate (i.e., how this protects the provider, other residents, and the property) and sign/date the notes.