FAIR HOUSING ACT - Expanded

In April of 2016, the Department of Housing and Urban Development (HUD) issued Guidance on how criminal conviction screening policy could violate the FHA under disparate impact theory. The HUD Guidance notes that racial disparities in incarcerations rates will result in certain races, like African Americans, being denied housing more often than other races because of criminal screening policies. The HUD Guidance requires housing providers to support their uses of background tests with “substantial, legitimate, nondiscriminatory interests” such as the safety of residents, employees, and property.

Policies and Practices - Recommended Best Practices

To address a point of first concern, the HUD Guidance does not ban housing providers from conducting criminal screenings on applicants. It simply outlines HUD’s position on how disparate impact lawsuits could proceed against housing providers that do not have justified criminal screening policies that address legitimate concerns in the housing context. Additionally, as discussed in detail in Part II.B, the recent HUD Guidance does not carry the force of law. Nevertheless, generally abiding by its recommendations is a best practice for avoiding exposure to lawsuits and the associated costs. Below is a summary of the recommended best practices based on the recent HUD Guidance as well as other legal authorities and experience.

Have a Policy: Develop a written policy that clearly states the legitimate concerns of the housing provider that justify the screening, including how many years back the screening will go, the types of crimes that will pose the highest amount of concern, and why they do.

Determine Legitimate Interests: Engage in thoughtful deliberations about what are the “substantial, legitimate, nondiscriminatory” interests that motivate the need for criminal screening. Concerns about the health and safety of residents and employees as well as the safety of the property will be significant concerns. Record these concerns in writing the policy and tie them to how the screening is structured.

No Automatic Conviction Exclusions: Do not have a policy that automatically excludes any and all individuals just because of a prior criminal conviction.

Ignore Arrests: Do not have a policy that factors the existence of a prior arrest into consideration for denying an applicant.

Apply Policy Equally and Consistently:  Apply the background check and policy to each and every applicant consistently. Do not make subjective determinations to only apply screenings to certain individuals, which would only result in exposure to claims of inconsistent and discriminatory treatment.

Individually Assess Records and Conduct: If pending criminal charges or arrests are considered at all, only look at the underlying conduct to determine if it is inconsistent with the legitimate concerns expressed in the policy. Likewise, for actual convictions, if you decide to have individual screening on every denial, individually assess the nature and severity of the offense, as well as when it occurred and the underlying facts giving rise to it to determine if it provides a basis for exclusion under the screening policy. Consider mitigating factors and evidence of rehabilitation through statements or documentation put forward by the applicant.

Narrowly Tailor Inquiries: When asking applicants questions about their criminal convictions, limit questions to those related to legitimate interests and concerns as stated in the

screening policy

Train Staff: Provide detailed training to local management and staff to know how to communicate the policy and effectively apply it in a consistent and unbiased manner.  Document Continues