Recently, the National Multifamily Housing Council and the National Apartment Association published a white paper that reviewed the recent Guidance of the U.S. Department of Housing and Urban Development’s (“HUD”) relating to landlords screening tenants for criminal convictions and proposed “best practices” relating to such screening.HUD’s Guidance comes in response to the U.S. Supreme Court’s decision last year (discussed in a previous blog post), in which the Court recognized that a housing policy may violate the Fair Housing Act by virtue of its disparate impact on a protected class, such as a race, national origin or gender. Liability may thus arise under the FHA even if the policy is neutral on its face and is created without an intent to discriminate.
Landlords may have exposure to liability for having a criminal background check policy since that policy might have a disparate impact on African Americans, Hispanics or other protected groups. The HUD Guidance, which does not have the force of law but may be influential to some courts, addresses issues related to such checks.
Overall, the white paper advises that landlords create written policies that are thoughtfully developed. Such policies should take into account the most significant threats to the interests of a housing provider. As such, they might put greater weight on drug offenses (which, under express provisions of the FHA, may result in automatic rejection of the tenant prospect), violent crimes against people or property and sex offenses.
The clearest best practice set forth in the white paper is to avoid a policy that disqualifies all prospective tenants for a single conviction. Criminal background check policies should also have limits on how far back they look, which limits should vary with the type of conviction. It is suggested that either arrests (as opposed to convictions) should be ignored or landlords should exercise great caution if creating policies that consider arrests. Landlords must also avoid both unwritten policies and inconsistent application of policies.