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HUD’s Guidance on Criminal Background Checks

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HUD, the Department of Housing and Urban Development, released new guidance on April 4, 2016 regarding the Fair Housing Act and how it should be applied to policies regarding criminal background checks on tenants.

HUD believes that landlords have the potential to have an impermissible disparate impact on certain protected groups. HUD has basically stated that:

  • The use of a blanket policy to deny any applicants with a criminal record might lead to disparate impact due to the disproportionate incarceration rates among certain minority groups. While individuals with a criminal background are not a protected class under the Fair Housing Act, HUD believes that the use of criminal background records can potentially have a disparate impact on protected classes.
  • The nature and severity of the conviction should be considered in the evaluation process.
  • A policy that denies applications based on arrest records does not serve a legitimate interest to protect the safety of residents and their property; in an interview with NPR, HUD Secretary Julian Castro put 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.”

HUD’s policy does not state that landlords should avoid performing criminal background checks; the legitimacy of the policy must be proven to protect the safety of the property and its residents. All criminal convictions are obviously not identical. So HUD suggests that landlords should assess the nature and severity of the conviction.

The National Multifamily Housing Council (NMHC), in a press release published on April 5, 2016, describes HUD’s policy as follows: “Overall, the guidance seeks to end blanket exclusions of prospective residents based on criminal history in favor of a more individualized approach that is more narrowly tailored to achieve property safety and security goals.”

Considering severity, nature, and timing of convictions should be part of trying to ensure that any policies minimize the risk of any disparate impact while also reducing risk to existing residents and property.

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