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:

• Provide a written criminal background screening policy to all applicants.
• Ensure that screening policies can be justified with valid data demonstrating that the policies protect resident safety and/or property.
• Avoid the use of third-party screening mechanisms that utilize algorithms that may contain racial or other prohibited bias in their design, have not been shown to reliably predict risk, may produce inaccurate information about the applicant, or make the decision for the housing provider (rather than providing information to the housing provider to make its own determination).
• Provide the applicant or tenant the opportunity to correct inaccurate information, explain extenuating circumstances related to a criminal record, or indicate which specific part of the record may form the basis of an adverse decision prior to making an adverse decision related to an applicant’s/tenant’s criminal background.
• Comply with any state or local law that limits the landlord’s ability to run criminal background checks during the screening process or use criminal background information when making rental determinations (unless federal law requires such exclusion).
• Consider delaying consideration of criminal history until after an individual’s financial and other qualifications are verified and a conditional offer is made.
• Conduct an individualized assessment that considers relevant mitigating information beyond that contained in an individual’s criminal record, as this is likely to have a less discriminatory effect than categorical exclusions that do not take such additional information into account. Relevant individualized evidence might include: the facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the conduct; how long ago the criminal conduct occurred, evidence that the individual has maintained a good tenant history before and/or after the conviction or conduct; and evidence of rehabilitation efforts.

Following this guidance can help boards avoid potential Fair Housing Act violations while still ensuring the safety and welfare of existing residents and property.