At NLIHC’s Policy Forum on April 4 (see related article in this week’s Memo to Members), HUD Secretary Julián Castro announced that HUD had issued legal guidance from the Office of General Counsel (OGC) regarding the likely violation of the Fair Housing Act when housing providers employ blanket policies in refusing to rent or renew a lease based on an individual’s criminal history because such policies may have a disparate impact on racial minorities. The guidance states, “Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African-Americans and Hispanics.” The protected classes of the Fair Housing Act are race, color, national origin, religion, sex, familial status, and disability.
The guidance states that when a housing provider’s seemingly neutral policy or practice has a discriminatory effect, such as restricting access to housing on the basis of criminal history, and has a disparate impact on individuals of a particular race, national origin, or other protected class, the policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if the interest could be served by another practice that has a less discriminatory effect.
Some landlords and property managers assert that the reason they have blanket criminal history policies is to protect other residents and the property. The guidance declares that “bald assertions based on generalization or stereotype that any individual with an arrest or conviction record poses a greater risk than those without such records are not sufficient.” Landlords and property managers must be able to prove through reliable evidence that blanket policies actually assist in protecting residents and property.
The guidance also states that a housing provider with policies of excluding people because of a prior arrest without conviction cannot satisfy its burden of showing such a policy is necessary to achieve a “substantial, legitimate, nondiscriminatory interest,” since an arrest is not a reliable basis upon which to assess the potential risk to residents or property. In instances when a person has been convicted, the policy must be applied on a case-by-case basis considering the nature and severity of the conviction, what the individual has done since conviction, and how long ago the conviction took place.
In addition, the guidance discusses how a housing provider may violate the Fair Housing Act if the provider intentionally discriminates when using criminal history information in evaluating applicants and tenants. “This occurs when the provider treats an applicant or renter differently because of race, national origin or another protected characteristic. In these cases, the housing provider’s use of criminal records or other criminal history information as a pretext for unequal treatment of individuals because of race, national origin or other protected characteristics is no different from the discriminatory application of any other rental or purchase criteria.”
The guidance follows an FAQ regarding use of arrest records to disqualify people from receiving housing assistance (see Memo, 4/4) and an earlier HUD Notice on the use of arrest records in screening applicants for federally assisted housing (see Memo 11/9/15). This guidance applies more broadly than the previous guidance, as it applies to both federally assisted housing and housing on the private market. Additionally, because the guidance is a legal opinion from OGC, it trumps the opinions of individual departments within HUD.
The HUD guidance is at http://1.usa.gov/1TwM6m5
More information about disparate impact is on page 7-1 of NLIHC’s 2016 Advocates’ Guide at: http://bit.ly/23ihgne