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Justice Dept. warns landlords on the use of criminal background checks

The Obama administration's Justice Department has filed a legal brief warning landlords against using practices that make it hard for former criminals to get affordable housing.  The brief was filed on Tuesday in the U.S. District Court for the Eastern District of New York in a case brought by an organization that helps ex-prisoners find housing. The case involves the practices of an affordable rental apartment complex in Far Rockaway, Queens.

The plaintiff challenged the complex's policy of refusing the rent to individuals with prior convictions for felonies or misdemeanors other than traffic offenses. The plaintiff argued the policy has a disparate impact against prospective minority tenants, especially those who are black or Hispanic.

Although the Fair Housing Act does not stop landlords from considering applicants' criminal records, the Justice Department brief said "categorical prohibitions that do not consider when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then run a substantial risk of having a disparate impact based on race or national origin."

"This filing demonstrates the Justice Department's steadfast commitment to removing discriminatory barriers that prevent formerly incarcerated individuals from restarting their lives," said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department's Civil Rights Division, in a statement.

"Women and men who served their time and paid their debt to society need a place to live, yet unlawful housing policies can too often prevent successful re-entry to their communities," she added. "While not all criminal records policies adopted by landlords violate the Fair Housing Act, we will take action when they do."

The housing provider must "prove with evidence — and not just by invoking generalized concerns about safety — that the ban is necessary," when the landlord's background-check policy is found to have a disparate impact, the brief said. Even then, the policy will still violate the Fair Housing Act if there is a less discriminatory alternative.

Going forward, the department said it will "assist the court" in determining whether criminal background checks produce unlawful discriminatory effects in violation of the FHA. 

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