On April 4, the U.S. Department of Housing and Urban Development (HUD) released new guidelines regarding the application of fair housing standards to individuals with a criminal history. These new guidelines specifically set out a test that would be used to ascertain whether the resident screening policy of a given housing provider is discriminatory under the Fair Housing Act (FHA). These new guidelines have ramifications for how property owners screen ex-offenders and has sparked concerns that it will be more difficult for owners to protect their residents and properties. Here is what you should know about the HUD’s new guidelines on screening ex-offenders.
The new guidelines aren’t really all that new. The content of the recently released guidelines isn’t in itself new - it has been the position of the HUD for years. In fact, the HUD released guidelines that outline similar concerns in November 2015, and former HUD Secretary Shaun Donovan brought similar concerns to light in 2011. Basically, this new guidance is an attempt by the HUD to elucidate its policy in the wake of last summer’s Supreme Court case, which dealt with housing discrimination.
The new guidelines don’t ban the screening of potential residents. There are two reasons why it tends to be advantageous to screen potential residents. First of all, owners have safety concerns. They want to protect their properties and their residents. Secondly, they want to minimize their exposure to liability lawsuits, as they can be sued for exposing their residents to criminal acts. The HUD knows that both of these reasons are justifiable in terms of screening potential residents. In other words, it knows that screening is a reasonable response to a foreseeable risk. The HUD just wants to make clear that this screening isn’t discriminating and owners must be able to prove that their screening policies are in place to achieve a “substantial, legitimate, and non-discriminatory interest.” In the new guidelines, the HUD clearly states, “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."
To adhere to the new guidelines, a screening policy should indicate a disposition to take relevant factors beyond a potential resident’s criminal record into consideration. In order to comply with the guidelines, you need to get rid of policies that mandate the rejection of all ex-offenders irrespective of their specific criminal history or that mandate the rejection of applications on the sole basis of their arrest record. You need to take other factors into consideration and make decisions on a case-by-case basis. These other factors might include the specific circumstances surrounding their criminal conduct, the person’s age at the time of the criminal conduct, evidence that the individual has positive tenant history in his or her life, and any kind of evidence of rehabilitation efforts. However, it is important to remember that you aren’t under any obligation to accept all ex-offenders that apply for tenancy. You may still deny an application based on other criteria in your screening policy (for example, if he or she doesn’t qualify financially or has a negative tenant history). You just can’t deny an application on the sole basis of criminal conduct or an arrest record.
You may exclude an applicant or resident convicted of the distribution or manufacture of drugs without taking other relevant factors into consideration. There is an important caveat to the aforementioned piece of guidance regarding taking relevant factors beyond a potential resident’s criminal record into consideration: The Federal Housing Administration (FHA) does permit discrimination against individuals who have been convicted of either the manufacture or sale of illicit substances, regardless of the quantity. That means that if you do reject an application on the sole basis that the individual has been charged with the possession or sale of drugs, the HUD can’t accuse you of fair housing violations. However, it is crucial to note that this only applies to drugs. There are no similar exceptions made for any other individuals with a criminal history, including those involving violent crimes.
Maintain set guidelines and apply them evenly for individualized assessments. While it is true that owners need to conduct case-by-case assessments of prospective residents, it is crucial to have clear guidelines for these assessments. Failure to do so could also open you up to a fair housing claim. That’s why you need to have set guidelines and you need to apply them evenly.
In conclusion, it is a good idea to review your screening policies and make sure they comply with the HUD guidelines. If necessary, revise your resident screening policies. You will also want to provide an updated training session for all of your staff on fair housing, reminding them to treat everyone in the same manner. And remember, when in doubt, it is always advisable to seek out the proper legal guidance.