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Do’s and don’ts for non-discriminatory tenant screening

In October, a Massachusetts landlord who refused to rent apartments to pregnant women or families with minor children was found guilty of violating the U.S. Fair Housing Act. The same month, the New York City Fair Housing Center sued a landlord for allegedly quoting higher rental rates to black individuals posing as prospective tenants than to their white counterparts as well as for rejecting applicants with public rent assistance and making children undergo unnecessary lead tests. Five months earlier, a federal jury in Montana fined a landlord for charging a disabled tenant $1,000 to have a service animal.

Cases like these are stark reminders of the risks of neglecting to follow rules designed to protect renters from discrimination.

Every landlord, property manager and real estate agent should know not to ask verbal or written questions about an applicant’s race, skin color, religion, sex, national origin, disability or family status such as pregnancy and the presence of children under 18 – the seven classes protected under the Fair Housing Act. The same protections bar landlords from other behavior that can be deemed discriminatory such as posting ‘For Rent’ signs only in Spanish (discouraging non-Spanish-speaking applicants) or promoting a property in terms like “great building for single professionals” (discouraging families with children, married couples and partnered couples).

But knowing and complying can be two different things, especially with the continual evolution of case law related to housing discrimination. The challenge is complicated by additional protections that may be provided under state and local housing laws. In Maryland, for example, state law forbids discrimination on the basis of marital status, gender identification or sexual orientation, and some cities and counties have defined additional categories such as age, sexual preference, occupation and source of income.

Tenant screening provides a first line of defense against discrimination complaints.  That’s because differences in factors such as an applicant’s income, employment, references, and credit histories can help justify the selection of one tenant over another and thereby absolve landlords of discrimination charges. Here are eight recommendations for using the screening process to keep discrimination lawsuits at bay.

1 – DO apply your policies and procedures uniformly.  Avoid running a full tenant screening report on some applicants and only a credit check on others, for example. If you have a policy of renting to applicants with the best credit, don’t make an exception for a would-be tenant with a better personality but a less positive credit report. Be consistent or be vulnerable.

2 – DON’T get too personal on rental application forms. Ask about jobs, previous addresses, income and references, but stay away from specific questions about things like spouses (just provide spaces for a list of all adults) and other categories protected under the Fair Housing Act.

3 – DO choose a ‘colorblind’ screening service. Some services have a colorblind scoring system that enables landlords to establish their preferred tenant profile based on specific parameters such as income, evictions and credit score, either using the service’s default tolerances or defining their own. The software then evaluates each applicant according to those criteria and returns a “recommend” or “not recommend” verdict completely independent of race, religion or other potentially discriminatory factors. This ensures that applicants are evaluated equally, providing a strong defense assuming the software’s recommendations are followed.  Read More

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