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A recent memo by the US Department of Housing and Urban Development (HUD) appears to lay the basis for a Fair Housing Act (the “Act”) complaint for discrimination in situations where a tenant or potential buyer is kicked out of or denied housing where the sole cause of the ejection/denial is the tenant/potential buyer’s criminal history. According to the memo, criminal history is not a good predictor of housing success, and thus focusing solely on this metric as a means for rejecting tenants/applicants can lead to violations of the Act.
The June 10, 2022 memo, entitled Implementation of the Office of General Counsel’s Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions, seeks to protect felons who are members of a federally protected class (race, color, national origin, religion, sex, familial status and disability) from being discriminated against through screening procedures that focus solely on a tenant’s criminal history when determining the tenant’s eligibility. The Fair Housing Act prohibits discrimination in housing-related activities (renting or buying a home, getting a mortgage, seeking housing assistance, etc.) because the applicant/tenant is a member of one of the protected classes listed above. According to the memo, screening practices that focus solely on a tenant/applicant’s criminal history can end up violating the Act where the screening policies result in direct or indirect discrimination against a protected class either through discriminatory intent, an unjustified discriminatory effect, or failure to make a reasonable accommodation.
The memo concludes with an admonition to private housing providers to consider refraining from using screening policies that focus solely on criminal history in order to avoid potential Fair Housing Act violations.
Where housing providers elect to use criminal background screening policies, the memo provides that the providers should consider taking the following steps to avoid potential Fair Housing Act violations:
Following this guidance can help boards avoid potential Fair Housing Act violations while still ensuring the safety and welfare of existing residents and property.
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