2016 has been a year of initiatives, laws and policies affecting homeowners, and renters. One such “guidance” as it pertains to screening tenant applicants with a criminal history record. I have mixed views on this as I can see both sides of the argument.
Tenant: I made a terrible mistake when I was 19 that has remained on my record. Now at age 29, I am trying to find an apartment and I am constantly being denied due to my prior criminal history. THEN I was a nuisance to society but today… I stand before you an upstanding citizen. I have my Master’s degree in Physical Therapy, I make $75,000/year but I cannot find an apartment because of my prior transgression. How do I grow? How do I move on to the next stage of life if I am constantly penalized for a mistake I made 10 years ago?
Landlord: The government is imposing poilicies and laws that make it increasingly harder to protect my investment. I believe in giving people a chance but I do not want to be forced into a decision. Criminal background checks are meant to protect my tenants. They want a safe place to live and not feel threatened. If someone has a history of violence or burglary… how can I in good conscience, accept them as a new tenant? I understand people change, but am I not failing in my duty as a landlord to the tenants I currently have? I believe this creates undue tension between landlord and good tenants.
I can argue either side. I choose to see the good in people most times but I do not want to be forced to overlook something that troubles me. I do also see the connection between minorities disproportionately being affected by this decision. What is the middle ground? How do we obtain more information on a person’s record with regard to timeline of criminal activity? Something I will be following over time to see what develops.
For more details see the excerpt below on the decision.
HUD 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.
Some landlords and property managers assert that the reason they have blanket criminal history policies is to protect other residents and the property. 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 HUD guidance is at http://1.usa.gov/1TwM6m5