Criminal History and Fair Housing

If a landlord treats individuals with comparable criminal histories differently because of their race, national origin, or other protected characteristic this is intentional discrimination and the landlord is in violation of the Fair Housing Act (i.e., discriminatory intent liability). Until recently, a landlord could safely avoid liability if the landlord consistently applied the same standard regardless of race when screening for criminal history. It is no longer that simple.

Landlords are not required to accept all applicants regardless of criminal history. But, under HUD guidelines published in 2016 landlords may face liability when using broad, blanket prohibitions on renting to anyone with a criminal record. Under the new guidelines, landlord criminal history policies must take in account such factors as the severity of the crime, the recency of the criminal history, and the applicant’s conduct since.

While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability).

A landlord’s policy or practice of making housing decisions based on criminal history must actually assist 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 burden.

A housing provider with a policy or practice of excluding individuals because of one or more prior arrests (without any conviction) cannot satisfy its burden of showing that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. [A] housing provider who denies housing to persons on the basis of arrests not resulting in conviction cannot prove that the exclusion actually assists in protecting resident safety and/or property.

Landlords that apply a policy or practice that excludes persons with prior convictions must still be able to show that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. A landlord that imposes a blanket prohibition on any person with any conviction record—no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then—may face liability.

A landlord with a more tailored policy or practice that excludes individuals with only certain types of convictions must still prove that its policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” To do this, a landlord must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.
A policy or practice that fails to take into account the nature and severity of an individual’s conviction is unlikely to satisfy this standard. Over time, the likelihood that a person with a prior criminal record will engage in additional criminal conduct decreases until it approximates the likelihood that a person with no criminal history will commit an offense. Therefore, a policy or practice that does not consider the amount of time that has passed since the criminal conduct occurred is unlikely to satisfy legal fair housing standards.

A policy or practice that fails to consider the nature, severity, and recency of criminal conduct is unlikely to be proven necessary to serve a “substantial, legitimate, nondiscriminatory interest” of the landlord.

Also, landlords should not place much reliance on arrest records–as opposed to convictions. Arrests do not prove anything, other then the applicant was once suspected of some conduct. Without a conviction, there is no proof the applicant committed a criminal act.

In the past, landlords were not violating fair housing law do long as there was no intentional discrimination, such as treating people of different races differently even with similar criminal records. The new guidelines are meant to give more protection to some rental applicants who may not pose a serious threat. However, because the new guidelines are more nuanced there may be greater liability risks to landlords—even if the landlord does not subjective intend to discriminate. Under the new guidelines the determination of whether any particular criminal history-based restriction on housing violates fair housing law must be made on a case-by-case basis.