Grace Hill Training Tip of the Week
Have you Reviewed Your Criminal Background Check Policy Lately?
A federal lawsuit in New York is challenging a landlord’s blanket ban on leasing to people with criminal backgrounds. The federal government has advised landlords against such bans, saying they could violate fair housing laws, but the practice persists.
The lawsuit alleges that the landlord’s policy disproportionately affects black and Latino men, and thus violates federal law. The policy, although not discriminatory on its face because it doesn’t single out any protected classes, could still be illegal if it has a discriminatory effect. In other words, if the effect of the policy is discrimination, even if not intentional, it would be illegal.
Some estimate that 1 in 3 Americans has a criminal record, and studies cited by HUD show that certain racial and ethnic minorities are arrested and convicted of crimes more than others. This means certain criminal history policies could have a disparate impact on minority home seekers, making it difficult for them to find housing.
HUD has provided guidance for developing, reviewing or revising a community’s criminal background check policy. Here are tips to help you comply with the guidance.
A policy should not deny residency or otherwise discriminate against an applicant or resident based solely an arrest record. An arrest is not the same as a conviction. A policy may use criminal convictions as a screening criterion because a conviction is sufficient evidence that someone engaged in criminal conduct.
However, a policy should not automatically exclude individuals because of a criminal conviction. Instead, it should consider factors such as the nature and severity of the crime and how long ago the crime was committed. Note that a policy can automatically exclude based on convictions for the illegal manufacture or distribution of a controlled substance. Related convictions, such as drug possession, are not covered by this exception.
If a resident or applicant is denied housing because of a criminal history, you should be able to show how the criminal conduct affects your ability to protect residents’ safety and property. As HUD states, you must be able to show that a policy “accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not”.
Don’t forget the importance of being consistent. If you make an exception to your standard policy for one prospective or current resident, you must offer the same exception to other prospects or residents who are in similar situations.
Take some time in this new year to evaluate your screening processes to make sure they do not produce a disparate impact. Remember, policies may consider criminal history in appropriate way, but should not contain exclusions that are arbitrary or too broad. For more information, review the full text of HUD’s guidance here.