In new guidance in April of this year, the Department of Housing and Urban Development (HUD) told landlords that turning down tenants based on their criminal records may violate the Fair Housing Act.
Individuals with criminal records currently aren’t a protected class under the Fair Housing Act, and the guidance from HUD’s general counsel says that in some cases, turning down a potential tenant because of his or her criminal record can be legally justified and defended.
However, landlords and property managers who automatically refuse to rent to anyone with a criminal record could be guilty of discrimination due to the systematic disparities of the American criminal justice system.
Specifically, the new HUD guidance says “Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African-Americans and Hispanics.”
Housing Secretary Julian Castro puts it this way: “When landlords refuse to rent to anyone who has an arrest record, they effectively bar the door to millions of folks of color for no good reason.”
NPR News’ Carrie Johnson reported that 1 in 4, or 25% of Americans has a criminal record that will show up on a routine background check. Those records include arrests that never led to a conviction, in addition to convictions for crimes from petty to serious, some which may have happened decades ago.
HUD further noted that statistics provided by the U.S. Justice Department show that African-American men are imprisoned at a rate nearly six times that of white men, and Hispanic men at more than twice the rate of white men.
Part of the reason that HUD says refusing to rent to people based just on arrest records is no good is because arrests alone aren’t proof of guilt. Furthermore, HUD states, even if landlords do consider convictions, refusing to rent to all individuals with a criminal record “no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then,” isn’t defensible, since not all ex-convicts will pose a risk to safety or property.
This new guidance doesn’t mean property managers and landlords are completely barred from considering criminal records, but they do need to prove that their policy legitimately serves to protect safety or property. The only exception to this guidance is if a conviction was for the manufacturing or distribution of drugs.
HUD’s goal, apparently, is to make landlords take into consideration what the crime was and when it happened, as well as other factors, to reduce discrimination and the impact to the African-American and Hispanic communities.
To stay within the law and avoid discrimination, property managers and homeowners will now need to not automatically refuse to rent to an individual because they have an arrest or conviction. Landlords and property owners must review and assess each individual’s criminal background on a case by case basis before making a decision.
