HUD Warns Against Blanket Bans of Ex-Offenders

The U.S. Department of Housing and Urban Development released new guidelines today that could severely restrict a landlord’s ability to screen tenants based on criminal background checks, saying it could violate the Fair Housing Act.

The guidelines, issued Monday morning, say that because disproportionate numbers of African Americans & Hispanics have criminal records, they face potential discrimination in housing options based on their race.

This issue will be closely followed by NREIA.

In their summary conclusion, the HUD guidelines state:

The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin or other protected characteristics. Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification. Thus, a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act.

Policies that exclude persons based on criminal history must be tailored to serve the housing provider’s substantial, legitimate, nondiscriminatory interest and take into consideration such factors as the type of the crime and the length of the time since conviction. Where a policy or practice excludes individuals with only certain types of convictions, a housing provider will still bear the burden of proving that any discriminatory effect caused by such policy or practice is justified. Such a determination must be made on a case-by-case basis.

Selective use of criminal history as a pretext for unequal treatment of individuals based on race, national origin, or other protected characteristics violates the Act.

References:

Landlords Face Pressure on Criminal Background Checks, WSJ 4-4-16 (subscription may be required)

Federal Housing Officials Warn Against Blanket Bans of Ex-Offenders, NY Times 4-4-16

HUD’s Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions