Yes—but it depends on the circumstance and overly broad criminal history blanket bans (for example, refusing to rent to anyone with a criminal record no matter how long ago the conviction occurred) can violate the Fair Housing Act.
The U.S. Department of Housing and Urban Development (HUD) issued guidance in 2016 stating that because of the racial disparities in the criminal justice system, blanket bans (or refusing to rent to anyone with any type of criminal history, regardless of circumstances) have a greater impact on Black or Hispanic applicants, and as such, could violate the Fair Housing Act. This guidance applies to private providers of rental housing, as well as to public and subsidized housing programs.
HUD has provided guidelines for determining if a policy or practice of denying housing to an individual based on past criminal history has a discriminatory effect on racial and ethnic minorities. An understanding of these guidelines is a critical risk management strategy for real estate professionals.
There are a few key concepts that landlords and real estate professionals should understand:
• Unintentional discrimination may occur due to a facially neutral criminal records policy, even when such a policy is applied equally to all applicants. According to 2015 case law, “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.”
• If a policy or practice has a discriminatory effect on members of the protected classes and if it does not serve a “substantial, legitimate, nondiscriminatory business interest of the housing provider” then the policy violates the Fair Housing Act. Furthermore, if the business interest could be served by another practice that has a less discriminatory effect, then the less discriminatory policy must be implemented to avoid a fair housing violation.
HUD’s guidance states that housing providers need to consider the nature and severity of a crime and the amount of time that has passed to determine if the person would pose a direct threat to the health and safety of other residents. Housing providers should be able to show that a policy distinguishes accurately between past criminal conduct which signifies a demonstrable risk to the safety of other residents and/or property and that which does not suggest a demonstrable risk. The guidance issued by HUD states that a mere arrest does not indicate guilt and a person should not be denied housing based on an arrest without a conviction.
Housing providers must apply criteria equally to all applicants and tenants, regardless of protected class. Using criminal background as a pretext for discrimination based on a protected class is illegal. For example, a landlord should not make an exception to their policy of rejecting applicants with drug convictions only in cases where the applicant is a woman.
There is an exception to the HUD guidance on criminal backgrounds. If a person possesses a conviction for the manufacture and/or distribution of illegal controlled substances, they can legally be denied housing and the landlord will not be in violation of the Fair Housing Act for this denial. Note: this exception does not include either arrests for drug charges that do not lead to conviction or convictions for possession only.
If you live in Philadelphia, Southeast Pennsylvania or the Lehigh Valley and have questions regarding criminal record screening in housing, contact info@equalhousing.org, 866-540-FAIR or contact us.
