CRIMINAL BACKGROUND SCREENING AND FAIR HOUSING

Federal fair housing law does not explicitly prohibit criminal background screening. However, the U.S. Department of Housing and Urban Development (HUD) released guidance and a memo about how the Fair Housing Act applies to housing policies with regard to criminal background checks. HUD recognizes the racial and ethnic disparities in the criminal legal system, including disproportionate and unequal rates of arrests and convictions, and harsher sentencing of Black and Latinx individuals in particular. The result of this disparity is disproportionate harm to members of these protected classes.
HUD’s 2022 Memo regarding its 2016 Guidance on this topic recommends private housing providers not use criminal history to screen tenants for housing. Criminal history is not a good predictor of housing success.
Most housing providers are not required by law to exclude persons with criminal histories as tenants and can rely instead on other screening criteria that more closely relate to whether an applicant or resident would be a good tenant, such as: ability to pay rent, prior rental history, and personal references.
If conducting a criminal record screening, HUD has issued guidance on applying Fair Housing Act standards to the use of criminal records screening in housing related transactions.
This guidance prohibits landlords from:
• Denying housing based on arrest records.
• Placing blanket bans on renting to anyone with a criminal history. Blanket bans are bans that apply to or affect all or the majority of a given class of people.
• Conducting background checks inconsistently, performing them on some and not others based on stereotypes or fear.
Further, a landlord must:
• Consider individuals on a case-by-case basis and evaluate the nature and severity of the crime and consider the length of time that has passed since that crime was committed.
• Make a determination based on facts and evidence, and not a perceived threat.
A person can be denied based on their criminal record, legally, if their recent criminal record makes them dangerous and a risk to other tenants or neighbors. The denial must be based on reliable evidence and not be hypothetical or speculative. If challenged as a fair housing violation, a housing provider must be able to:
• Provide evidence proving that the housing provider has substantial, legitimate, nondiscriminatory interest supporting the housing denial.
• Show that the housing policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety/property and criminal conduct that does not.
Under federal regulations, Public Housing Authorities must reject an applicant if the person has a lifetime registration requirement relating to their conviction for a sexually-oriented offense in any state and applicants convicted of manufacturing methamphetamine on federally-assisted property.
What does criminal record discrimination in housing look like?
Examples:
• A housing provider will not rent to a tenant because they served time in prison for drug possession 25 years ago but have not been in trouble with the law since.
• A housing provider automatically denies any applications where the potential renter has checked the box on the rental application inquiring if they have ever been convicted of a felony.
• A housing provider uses the person’s criminal record to deny housing as a means to discriminate on another basis, such as the person’s disability, family status, or sexual orientation.
• An individual has a criminal record due to a past drug or alcohol addiction but has since successfully completed a rehabilitation program.
* Being in recovery from alcohol and/or drug addiction is considered a disability under the Fair Housing Amendments Act of 1988 which prohibits discrimination based on disability and includes additional protections such as the right to reasonable accommodations and reasonable modifications.
 
From FAIR HOUSING FOR PEOPLE WITH A CRIMINAL RECORD: A DIGITAL TOOLKIT | FAIR HOUSING CENTER FOR RIGHTS & RESEARCH