Is denying a prospective tenant housing because of his or her criminal record discrimination? Well, according to the Feds, it could be. In April, in an attempt to making it easier for individuals with a criminal record to secure housing, the Department of Housing and Urban Development (HUD) released new guidance outlining the application of fair housing standards to prospective tenants with a criminal record to ensure that housing providers’ screening policies aren’t violating the Fair Housing Act (FHA).
According to the Affordable Housing Gap Analysis, published annually by the National Low Income Housing Coalition (NLIHC), there is currently a serious shortage of affordable rental units in the United States. This is particularly true for low-income renters, who are also known as ELI renters. The 2016 report found a "shortage of 7.2 million available rental units for ELI households, or only 31 affordable and available units for every 100 ELI renter households."
For the 600,000 people who are released from federal and state prisons every year, and the more than 11 million people who are cycled through local jails, many of whom are also low-income renters, finding housing can be a challenge. Many landlords are reluctant to let to an individual with a criminal record, and as a result, these people find it challenging to find a place to call home. But this new guidance suggests that such policies that unequivocally ban those with a criminal record from renting could very well be de fact discrimination.
What is the Fair Housing Act?
The Fair Housing Act (FHA) protects people from any kind of discrimination when they are trying to secure housing, whether they are renting an apartment, buying a home, or attempting to obtain financing for any housing. First enacted as Title VIII of the Civil Rights Act of 1968, the FHA specifically prohibits discrimination on the basis of race, ethnicity, national origin, religion, gender, disability, and the presence of children. You can find detailed, in-depth guidance on the specifics of the FHA and the protection that it offers on the HUD website.
The Fair Housing Act & Criminal Records
It is true that individuals with criminal records aren’t a protected class under the Fair Housing Act. But according to the new HUD guidance, turning someone down because of his or her criminal record could very well constitute discrimination. This new guidance clearly explains that because African-Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their proportion of the general population, "criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another." This is known as discriminatory effects liability. That means that intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin, or other protected characteristic. This is known as disparate treatment liability.
So, what does that all mean? Well, ultimately, a blanket policy of refusing to rent to people with a criminal record is a kind of de facto discrimination, as it will disproportionately affect African-Americans and Hispanics. For example, African-American men are imprisoned at a rate close to six times that of white men, while Hispanic men at more than twice as likely to be arrested than white men. “When landlords refuse to rent to anyone who has an arrest record, they effectively bar the door to millions of folks of color for no good reason," Housing Secretary Julian Castro Housing Secretary Julian Castro recently explained to NPR.
It should also be noted here that landlords will often use policies on criminal convictions to intentionally keep certain races out of their housing without explicitly banning people on the basis of race. The new guidelines make it clear that this is in fact discrimination and that perpetrators will be punished appropriately. “Intentional discrimination may be proven based on evidence that, when responding to inquiries from prospective applicants, a property manager told an African-American individual that her criminal record would disqualify her from renting an apartment, but did not similarly discourage a White individual with a comparable criminal record from applying,” the HUD specifically explains.
Creating Fair & Neutral Housing Policies
It is important to note that when it comes to renting to people with criminal records, even seemingly neutral policies can, in fact, be discriminatory. However, that doesn’t mean that a landlord is obligated to rent to someone who has a criminal record. There is just some general guidance a landlord should adhere to. The HUD guidance maintains that “a housing provider must . . . be able to prove through reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property. Bald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient to satisfy this burden."
As a general rule of good practice, a landlord shouldn’t deny a prospective tenant on the basis of an arrest record alone, as this isn’t indicative of guilt. It also isn’t good practice to refuse to rent to any ex-cons. It is important to take into consideration the particular situation in which criminal conduct occurred, the individual’s age at the time of the criminal conduct, how much time has passed since the crime was committed, evidence that the individual has positive tenant history in his or her life, and any kind of evidence of rehabilitation efforts.
This is by no means to say that a landlord must accept all ex-cons who apply for tenancy. But it is to say that a criminal record can’t be the sole reason for denying a person. The general rule of thumb here is that policies need to be about keeping communities safe, not about keeping people out of a home.