Landlords with a blanket policy of denying housing to people with criminal records may be in violation of the Fair Housing Act, according to the Department of Housing and Urban Development (HUD).

Julian Castro, HUD secretary
J. Castro

“The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, or other protected characteristics,” said HUD in newly issued guidance. “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. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification.”

The guidance stresses that arrests are not the same as convictions. A housing provider that denies housing to persons on the basis of arrests not resulting in conviction cannot prove that the exclusion actually assists in protecting resident safety and/or property, said HUD.

When there are applicants with convictions, landlords must still prove that a policy to exclude them is necessary and nondiscriminatory. “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.”

“I am so thrilled,” said JoAnne Page, president and CEO of The Fortune Society in New York City, which works with people who have been incarcerated. “We have been fighting for this, fighting against a blanket discrimination with people with records.”

Housing and employment are foundations for people and families, and it’s hard to obtain and hold employment without housing, she told Affordable Housing Finance.

The guidance, she said, tells housing providers to look at the individual, how long ago the crime was, and what the person has done recently.

Page said she is also hopeful HUD’s action will help reunite or keep families together. In some cases, a family member such as a father or son isn’t allowed to live with his family because he has a record.

The guidance is largely consistent with what the industry has been talking about for a long time, according to Amy Glassman, an attorney with the Ballard Spahr law firm in Washington, D.C.

Owners have to be careful and thoughtful in their screenings when they are using criminal background checks so their policies don’t have an unnecessary discriminatory effect.

“It’s a hard balance,” Glassman told AHF. “Both owners and residents of apartment complexes have a legitimate interest in ensuring they live in a safe environment. There are certain criminal backgrounds indicative of past violent behavior or behavior that might take away from the safety of the residents. In that situation, I think the owners have legitimate needs to use criminal convictions to screen, but they also have to be very thoughtful about it.”

It’s helpful to put the guidance in writing, but the key is implementation. For example, owners, particularly larger companies, having written policies that are uniformly applied and are thoughtful and drafted in a way that tries to ensure they are the least discriminatory ways would be important. “They need to look at the severity or nature of crimes, how recently they were committed, and whether applicants have taken subsequent steps that might negate the effects of the convictions,” said Glassman.