HUD Releases Guidance on Use of Criminal Records by Housing Providers

Written By ESR News Blog Editor Thomas Ahearn

The U.S. Department of Housing and Urban Development (HUD) Office of General Counsel has released ‘Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions’ to show how The Fair Housing Act prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status or national origin. The HUD Guidance is available here.

HUD issued the guidance to address how the Fair Housing Act applies to the use of criminal history records by providers or operators of housing and real-estate related transactions. Specifically, the HUD guidance shows how the discriminatory effects and disparate treatment methods of proof apply in Fair Housing Act cases in which a housing provider justifies an adverse housing action, such as a refusal to rent or renew a lease, based on an individual’s criminal history. According to the HUD guidance:

• As many as 100 million U.S. adults – or nearly one-third of the population – have a criminal record of some sort.
• The United States prison population of 2.2 million adults is by far the largest in the world.
• As of 2012, the United States accounted for only about five percent of the world’s population, yet almost one quarter of the world’s prisoners were held in American prisons.
• Since 2004, an average of over 650,000 individuals have been released annually from federal and state prisons, and over 95 percent of current inmates will be released at some point.

The HUD guidance states that a housing provider violates the Fair Housing Act when a policy or practice has an unjustified discriminatory effect. Since higher than average incarceration rates exist among Hispanics and African Americans in the U.S., the use of criminal records to deny housing can cause a “disparate impact” on these races. The HUD guidance provides national statistics that show that racial and ethnic minorities face disproportionately high rates of arrest and incarceration. For example:

• In 2013, African Americans were arrested at a rate more than double their proportion of the general population.
• In 2014, African Americans comprised approximately 36 percent of the total prison population in the United States, but only about 12 percent of the country’s total population. In other words, African Americans were incarcerated at a rate nearly three times their proportion of the general population.
• Hispanics were similarly incarcerated at a rate disproportionate to their share of the general population, with Hispanic individuals comprising approximately 22 percent of the prison population, but only about 17 percent of the total U.S. population.
• Non-Hispanic Whites comprised approximately 62 percent of the total U.S. population but only about 34 percent of the prison population in 2014.
• Across all age groups, the imprisonment rates for African American males is almost six times greater than for White males, and for Hispanic males, it is over twice that for non-Hispanic White males.

The HUD guidance states that landlords should not use arrest records as a basis for excluding applicants since an arrest which does not lead to a conviction does not prove that an individual engaged in illegal activity. The guidance also states: “A housing provider that imposes a blanket prohibition on any person with any conviction record- no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then- will be unable to meet this burden.”

According to HUD, if a landlord uses criminal records to screen, the policy must be narrowly tailored. The guidance states a landlord would need to prove this “tailored” policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” A landlord must be able to show its “tailored” use of criminal background checks “accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.”

The HUD guidance states a landlord must take into account the nature, severity, and age of a conviction. HUD also recommends that Landlords conduct an “individualized assessment” of each applicant that considers (1) the facts or circumstances surrounding the criminal conduct; (2) the age of the individual at the time the conduct occurred; (3) evidence that the individual has maintained a good tenant history before and after the conviction or conduct; (4) and evidence of rehabilitation efforts.

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