HUD Memo: Criminal Background Screenings May Violate Fair Housing Act

HUD issued a memo on June 10 outlining the ways criminal background screenings may violate the Fair Housing Act (FHA). The memo provides tips for conducting FHA investigations related to background screenings and best practices for landlords and other housing providers to adopt to ensure their screening processes do not violate FHA standards.

Because of the disproportionate impact of the criminal-legal system on Black and Latino people and people with disabilities, housing providers who issue blanket bans of people with conviction histories, or who utilize overly broad screening categories and practices, likely violate FHA provisions barring discrimination on the basis of race, color, or disability status. The memo provides three legal theories of liability under which a landlord or housing provider could be found to be in violation of the FHA:

  • Discriminatory intent: Also known as “disparate treatment,” discriminatory intent implies the landlord or housing provider uses criminal screenings as a means of purposefully denying housing to someone or of evicting someone from their current housing. For example, a landlord running background checks on Black applicants and not white applicants may be found to be in violation of the FHA under the theory of discriminatory intent.
  • Discriminatory effects: Less straight forward than discriminatory intent, discriminatory effects require a policy or practice to “create an unjustified discriminatory effect” on a class protected by the FHA. Proving a policy has a discriminatory effect first requires establishing that the policy under question predictably results in a disparate impact on members of a protected class. The landlord charged with creating a discriminatory effect can then attempt to prove the policy or practice is “necessary to achieve a substantial, legitimate, nondiscriminatory interest.” If successful, the burden of proving discriminatory effects shifts back to investigators, who then need to prove that the same interest can be pursued by another practice with a less discriminatory impact.
  • Refusal to make reasonable accommodations: People with disabilities are allowed to request exceptions or adjustments to landlords’ screening policies to ensure they have “the equal opportunity to use and enjoy a dwelling.” Landlords who refuse to make these exceptions or adjustments may be in violation of the FHA.

The memo also provides a description of best practices that can be used by Fair Housing Assistance Program agencies and Fair Housing Initiative Program grantees to provide technical assistance on criminal background screenings to landlords and housing providers. For example, HUD encourages landlords and housing providers to provide written notice of criminal background screening policies to all applicants and to ensure policies consider the nature, severity, and recency of the offense, as well as any mitigating evidence provided by the applicant.

Read the new memo at: