Housing Law Update: Criminal Background ChecksDownload
April is Fair Housing Month and attorney Jere Rosebrock shares this housing law update on criminal background checks.
Housing providers routinely use criminal background checks as part of the screening process for potential tenants. In the wake of the US Supreme Court’s 2015 decision in Texas Department of Housing and Community Affairs v. Open Communities and the April 4, 2016 guidance on use of criminal background checks issued by the Office of the General Counsel for HUD, housing providers should consider re-examining their policies for using criminal background checks in applicant screening.
What is the government looking for?
Both the United States Supreme Court and HUD’s Office of the General Counsel have made it clear that housing providers with overly-broad criminal background screening policies may face disparate-impact civil rights claims. Disparate-impact claims involve challenges to policies and practices that have a disproportionately adverse effect on individuals in protected classes, even absent any discriminatory intent.
The Supreme Court has stated that to survive a disparate-impact claim, a housing provider’s criminal background screening policy must be both narrowly-tailored and necessary to serve a substantial, legitimate, non-discriminatory interest. There is no question that ensuring the safety of the residents in your community is a substantial, legitimate, non-discriminatory interest. A well-crafted screening process will serve that interest. The real challenge is to craft a tenant screening process that is narrowly-tailored enough to survive a disparate-impact challenge.
What can you do to make sure that your policy survives scrutiny?
A criminal background screening policy is likely to survive a legal challenge if it exhibits certain characteristics. In general, only actual convictions should be considered during the screening. Arrests that did not result in convictions should usually be ignored, although currently pending matters may warrant further investigation. The screening process should focus on the nature and severity of any past convictions. Not all convictions should be treated equally. Blanket restrictions, such as the exclusion of any applicant with a felony conviction, must be avoided. Focus on convictions involving the type of criminal conduct that could pose a demonstrable risk to the personal safety or property of other residents in the community. Limit the time-period covered in the background screening. Statistical evidence demonstrates that a person whose last felony conviction occurred more than seven years ago is no more likely to commit another crime than someone with no criminal history. Therefore, a court is likely to find that criminal convictions dating back more than seven years are irrelevant to the screening process. Finally, apply the criminal background screening policy uniformly to all applicants, regardless of race, national origin, or other protected characteristic.
It may take time for the effects of the decision in Texas Department of Housing & Community Affairs and the April 4, 2016 HUD guidance to have a significant impact on the legal landscape. Meanwhile, a housing provider should know about the changing attitudes toward use of criminal background screening and should make sure that its policies have the best possible chance of surviving a disparate-impact challenge.
Note: This update does not constitute legal advice. Please contact an attorney about any particular matter.