LAC Praises HUD Guidance Prohibiting Housing Discrimination Against People with Criminal Histories

April 5, 2016—New York, NY—The Legal Action Center praises the U.S. Department of Housing and Urban Development’s (HUD) guidance that declares it a violation of the Fair Housing Act for landlords to have blanket bans that exclude people with criminal records. Implementing recommendations made by the National H.I.R.E. Network, HUD’s new Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions  extends its earlier efforts to increase opportunities for people with criminal histories to obtain safe and secure housing that is critical to successful reintegration and full societal participation.

Using the same data that the U.S. Equal Employment Opportunity Commission (EEOC) has used for decades to show that blanket bans against hiring people with criminal records in employment could violate Title VII of the Civil Rights Act, the Office of the General  (OGC) for HUD states the same holds true for landlords and property managers with regard to housing. The OGC describes a four-step test to analyze claims of race-based discrimination under the Fair Housing Act because of a policy or practice that exclude individuals with criminal histories:

1.)        Evaluating whether the criminal history policy or practice has a discriminatory effect Local, state, and national statistics on racial and ethnic disparities in the criminal justice system will provide grounds for HUD to investigate a discrimination claim made by racial and ethnic minorities, particularly African Americans and Latinos because they face disproportionately high rates of arrest and incarceration.

2.)        Evaluating whether the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest:

“The housing provider must be able to prove with reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property.”  The OGC stresses that the use of arrest information that did not lead to conviction and blanket bans that are speculative and broadly applied will not satisfy this test. Landlords and property managers will need to make individualized determinations and consider individuals on a case-by-case basis.

3.)        Evaluating whether there is a less discriminatory alternative:

A policy or practice that considers individualized evidence that may mitigate a criminal record including “facts or circumstances surrounding the criminal conduct, the age of the individuals at the time of the conviction or conducts, and evidence of rehabilitation efforts” is likely to have a less discriminatory effect than categorical bans. The OGC also suggests that landlords and property managers delay considering criminal record information until after all other qualifications are determined such as financial and other rental history.

4.)        Statutory exemption from Fair Housing Act liability for exclusion because of illegal manufacture or distribution of a controlled substance:

Housing providers may be exempted from a disparate impact claim if and only if the denial for housing was based on an applicant’s conviction for drug manufacturing or distribution, but not a conviction for drug possession.

“Across the country, landlords have set their own screening criteria.  Many impose flat bans against leasing to individuals convicted of a felony or other offense.  They fail to individually assess risk or threat of safety and do not consider evidence of rehabilitation. These across-the-board exclusions do not produce safer housing, are discriminatory, and make it virtually impossible for many people with criminal records and their families to find housing,” said National H.I.R.E. Network’s Director Roberta Meyers. “Secretary Castro’s announcement of the guidance is another major step in ensuring that people who have paid their debt to society receive a second chance and opportunity to be contributing members of society.”

“This guidance is a game changer.  We urge HUD to rigorously enforce it so that landlords quickly and clearly see the costs of discrimination,” said Legal Action Center Legal Director Sally Friedman.  “Enforcement should include a widely-publicized complaint mechanism for individuals illegally shut out of housing.”

MEDIA CONTACT: Roberta Meyers, (212)-243-1313, [email protected]

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