A housing provider may also face liability for a criminal background screening policy that creates an unjustified discriminatory effect, also known as a disparate impact, on protected classes. HUD reiterates that those claims should be investigated using the framework described in HUD’s 2016 Guidance on Application of Fair Housing Act Standards to the use of Criminal Records by Providers of Housing and Real Estate-Related Transactions.
In short, a complainant who challenges such a criminal background applicant screening policy under a disparate impact theory needs to both: (a) identify the offending policy of the housing provider and (2) provide statistics that support that this policy “actually or predictably” causes this discriminatory effect on a protected class under the FHA. The respondent may then raise a defense that the policy is “necessary to achieve a substantial, legitimate, and nondiscriminatory interest.” The evidence must actually support that the defense existed at the time the policy was adopted; “bald assertions” are not enough.
A common defense raised by housing providers is the policy promotes or safeguards safety of other residents. HUD’s 2022 memorandum underscores that such an assertion would need to be corroborated by evidence or data in order to comply with the FHA. If a housing provider can provide such evidence, HUD reiterates that investigations should still consider whether the interest can be “served by another practice that has a less discriminatory effect.”
For claims for refusing to make reasonable accommodations for people with disabilities, the HUD memorandum emphasizes that, when the disability of an applicant or tenant contributed to the past criminal conduct, the applicant or tenant may ask for an exception to the criminal background screening policy as a reasonable accommodation.
If the criminal conduct at issue arguably raises concerns about risk of harm to property or other residents, HUD explains that, as part of a reasonable accommodation request, the housing provider should consider any mitigating circumstances that may reduce or eliminate the threat, such as engaging in treatment or therapy.
Finally, the HUD memorandum sets out comprehensive best practices and tips for housing providers to avoid liability over criminal background policies. For example, HUD suggests housing providers should consider not using criminal history to screen tenants because, research indicates that “[c]riminal history is not a good predicator of housing success.” HUD suggests that HUD funded housing programs that are required by statute to exclude persons with certain criminal backgrounds consider “limiting criminal records screening to the minimum statutory requirements,” to avoid violations of the FHA. These policies may also change following HUD Secretary Fudge’s directive to HUD relevant housing programs in April 2022.
By: Kelly Clarke, Co-Director and Managing Attorney, Fair Housing Project, Legal Aid of North Carolina