The HUD Office of General Counsel recently released guidance on landlord criminal record screening and the Fair Housing Act. Because African-Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their share of the general population, excluding applicants with any history of a connection to the criminal justice system will have a discriminatory effect. The HUD guidance does allow for tailored case-by-case assessments of criminal convictions with due consideration for relevant mitigating factors.
Screening criteria should not consider prior arrests that did not result in a conviction. The fact that a police officer reasonably suspected that someone may have been involved in criminal misconduct, which is the standard for an arrest, does not form a reliable basis for a landlord to assess whether the applicant poses a risk to safety of the other residents or to property. Landlords should focus on convictions, not arrests.
Prior convictions may be a valid reason to exclude an applicant, but blanket prohibitions on any prior conviction violate the Fair Housing Act. Likewise, policies that fail to consider the nature, severity and recentness of criminal conduct are unlikely to survive a challenge. HUD also advises that mitigating factors should be considered such as the facts and circumstances of the criminal conduct, the age of the individual at the time of the crime, evidence that the applicant has maintained a good tenant history, and rehabilitation efforts.
While applicants with convictions for drug manufacturing or distribution may be rejected because of an exemption to the Fair Housing Act, those with only arrests for drug crimes may not. Drug possession is not covered by the exemption, so a disparate impact claim is possible if a landlord rejects applicants based on possession convictions without due consideration for the mitigating factors listed above.
HUD acknowledges ensuring resident safety and protecting property are among the fundamental responsibilities of a housing provider. Still, “bald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk” will not satisfy the Fair Housing Act requirements. To avoid a violation based on discriminatory effects, screening criteria must focus on case-by-case assessments of the nature, severity and recentness of a crime that led to a conviction, with appropriate consideration of mitigating factors.
The HUD guidance can be found at: