As many landlords and tenants are aware, the Federal Fair Housing Act prohibits discrimination in the rental of housing on the basis of race, color, religion, sex, disability, familial status or national origin. But can a landlord refuse to rent housing based upon a negative criminal history or background check? Most would presume yes, but like most things in the law, the answer is not so clear.
In April 2016, the US Department of Housing and Urban Development (HUD) issued guidance on the use of criminal records by housing providers under the Federal Fair Housing Act Standards. In its document titled Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions, HUD pointed out the grim statistic that nearly 100 million US adults have some sort of criminal record today. HUD also found that “African Americans and Hispanics [are] arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers.” In other words, HUD believes that refusing to rent to an individual because of a negative criminal history could, in turn, result in the type of racial discrimination the Fair Housing Act was intended to prevent.
HUD now warns that there can be a violation of the Federal Fair Housing Act if there is intentional housing discrimination, which is “[the] selective use of criminal history as a pretext for unequal treatment of individuals based on race, national origin, or other protected characteristics.” Additionally, there may be a violation of the Federal Fair Housing Act if criminal background checks have an unjustified discriminatory effect because of race, national origin or other protected characteristics. But practically speaking, how is a violation proven? In its recent publication, HUD concludes that the determination of whether there has been this type of discrimination, one due to discriminatory effect of policies, must be made on a “case-by-case” basis, but there are a few things landlords should keep in mind:
- Landlords should review their policies regarding the use of criminal background checks and how those background checks have been applied historically in accepting or declining residents and communicate the policies clearly to their employees.
- Landlords should avoid “selectively using” criminal history to identify someone’s race, national origin, or color.
- Landlords should continue to remember the basic tenants of the Fair Housing Act and avoid discrimination based upon race, color, religion, sex, disability, familial status or national origin.
- While conducting criminal and background checks and utilizing the information obtained is not unlawful, landlords must remain consistent. For example, if there is a policy prohibiting the rental to convicted violent felons, the same standard must be applied to all prospective tenants. The landlord also should make sure the same criminal and background check is performed on all prospective tenants.
- Landlords should maintain complete records of all criminal history and background checks, applications, denials, and other related documents.
For your convenience, please find a copy of the April 2016 HUD guidance document here:
We invite you to contact us regarding additional questions you may have about your landlord/tenant needs.
 Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions. U.S. Department of Housing and Urban Development, Washington, DC 20410-0500. April 4, 2016.