The U.S. Department of Housing and Urban Development (“HUD”) urges housing providers to exercise caution when implementing criminal history policies or practices used to make housing decisions. This guidance follows the Supreme Court’s decision last summer to hold disparate impacts claims as cognizable under the Fair Housing Act.
What You Need to Know
While persons with criminal records are not a protected class under the Act, HUD stresses that criminal history-based barriers to housing have a statistically disproportionate impact on minorities, which are a protected class under the Act, and as such, creating arbitrary or blanket criminal-based policies or restrictions could violate the Fair Housing Act.
United States minority population experiences arrest and incarceration at rates disproportionate to their share of their population. For instance, HUD asserts that in 2014, African Americans were incarcerated at a rate nearly three times their proportion of the general population.
To be clear, HUD’s guidance does not preclude housing providers from crafting criminal history-based policies or practices, but the guidance makes evident that housing providers should create thoughtful policies and practices that are tailored to serve a substantial, legitimate, and nondiscriminatory interest of the housing provider, such as resident safety or the protection of property.
Create A Legally Defensible Policy
HUD’s guidance provides insight into how to create a legally defensible policy that does not violate FHA’s prohibition on the discrimination in the sale, rental or financing of dwellings or in other housing-related activities.
While reviewing existing criminal history-based policies/practices, or creating new ones, we recommend reviewing HUD’s guidance, as well as the “Do’s and Don’t” below provided by NAR’s Legal Affairs Department.
- Create tailored criminal history-based policies/practices.
- Be sure to have clear, specific reasoning for the criminal history-based policy/practice that can be supported by evidence.
- Exclude individuals only based on criminal convictions that present a demonstrable risk to resident safety or property.
- Consider the nature and severity of an individual’s conviction before excluding the individual based on the conviction.
- Consider the amount of time that has passed since the criminal conduct occurred.
- Consider criminal history uniformly, regardless of an individual’s inclusion in a protected class.
- Treat all applicants for housing equally, regardless of protected characteristics.
- Conduct individualized assessments that take into account mitigating factors, such as facts and circumstances surrounding the criminal conduct, age at the time of the conduct, evidence of good tenancy before/after conduct, and rehabilitative efforts.
- Housing providers may exclude persons convicted of the illegal manufacture or distribution of a controlled substance.
- Don’t create arbitrary or overly-broad criminal history-based policies/practices.
- Don’t maintain a policy/practice, or any portion thereof, that does not serve a substantial, legitimate, nondiscriminatory interest.
- Don’t create exclusions based on arrest records alone.
- Don’t create a blanket exclusion of any person with any conviction record.
- Don’t provide inconsistent explanations for the denial of a housing application.
- Don’t use criminal history as a pretext for unequal treatment of individuals of a protected class.
- Don’t use comparable criminal history differently for individuals of protected classes.
- Don’t make exceptions to a policy or practice for some individuals, but not make the same exception for another individual based on the individual’s inclusion in a protected class.
- Don’t include a blanket prohibition against individuals convicted of drug possession.