For years you have been told that by treating all people similarly, you can avoid Fair Housing Act violations.
However, in 2016, HUD’s Office of General Counsel stated that a housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. So now what?
According to HUD’s report citing U.S. Department of Justice and U.S. Census Bureau data, African Americans and Hispanics are arrested, convicted and incarcerated at rates higher than their share of the general population. Consequently, disqualification for housing based on criminal convictions is likely to have a disproportionate impact on minorities.
Where a policy or practice has a higher adverse effect on individuals of a particular race or national origin, the policy or practice is unlawful under the Fair Housing Act if it does not serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect. HUD explains in its report that this interest cannot be “hypothetical or speculative,” “bald assertions based on generalizations or stereotypes” are not sufficient. One must be able to provide evidence proving both that the housing provider has a substantial, legitimate, nondiscriminatory interest supporting the policy and that the policy actually achieves that interest.
A good policy will be tailored to consider the nature, severity and timing of criminal conduct, and will accurately distinguish between criminal acts that suggest a risk to resident safety or property and conduct that does not. Further, a case-by-case evaluation of relevant mitigating information is likely to have a less discriminatory effect than blanket bans that do not take such additional information into account. Therefore, to minimize liability, there are questions one should ask beyond whether an applicant has a criminal history.
It is important to note that persons with criminal records are not a protected class under the Fair Housing Act. If it were a protected class, landlords and property managers wouldn’t even be permitted to consider whether the tenant has a criminal history, just like they can’t consider my gender or race. What the Fair Housing Act forbids are housing practices that have an unjustified discriminatory effect because of race, national origin or other protected characteristics. It does not prohibit housing providers from considering appropriate information when making housing decisions, but arbitrary bans are likely to lack a legally sufficient justification.