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While individuals with a criminal record are not listed as one of the seven protected class in our federal Fair Housing Act (FHA), the Department of Housing & Urban Development (HUD) issued guidelines in April 2016 indicating that some apartment criminal screens have a "disparate impact" on African American and Hispanic applicants for housing as there are a higher percentage of African Americans and Hispanics in jail then their percentage of the population would otherwise indicate. As such, the federal government is taking the position that management evaluate prospective residents with screening criteria which is not overly broad or contains generalizations that "disproportionately disqualify" individuals based on a legally protected trait – such as race (African American) or national origin (Hispanic). HUD now takes the view that while housing providers may still consider criminal records in the application process, ownership should not make decisions which do not involve a particularized analysis of: (a) the specific offense; (b) how long ago was the offense; and (c) what rehabilitation the individual has done since the date of the conviction.
Demonstrating this new emphasis, earlier this month the Department of Justice (DOJ) filed a "statement of interest" in the U.S. District Court for the Eastern District of New York in a FHA case brought by an organization that assists those released from jail who have problems finding housing following a completed prison sentence. DOJ's legal brief is intended to help the judge evaluate whether a specific criminal screening matrix results is unlawful discrimination if it simply uses generalized concerns about safety. In the New York case, the allegations are that management's policy resulted in a refusal to rent to anyone with a prior conviction (felony or misdemeanor) other than traffic offenses.
The takeaway: If you have not started already, I would suggest professional apartment ownership and management review your criminal screening policy. I have now provided comments on a number of screens. My goal is to work within the new guidance and still provide legitimate health and safety protections for our other residents, our staff members, and our properties. Look, DOJ and HUD have put management on notice and you don't want to be the next defendant in a case challenging criminal screens, particularly if you have not had your screen reviewed by counsel.
Just A Thought.
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