On April 4, 2016, the U.S. Department of Housing and Urban Development (HUD) issued guidance on “how the Fair Housing Act applies to the use of criminal history by providers or operators of housing and real-estate related transactions.” The guidance, issued by HUD’s Office of General Counsel, concludes that while the Fair Housing Act does not prohibit housing providers from considering certain criminal history information when making housing decisions, “arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification” and are thus likely to violate the Fair Housing Act.
The guidance describes the disparate arrest and conviction rates in the U.S., noting 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.
The federal Fair Housing Act prohibits discrimination based on race, color, national origin, religion, sex, disability, and familial status. “While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another,” even if the provider had no intent to discriminate.
Such a policy could be justified if it is necessary to serve “a substantial, legitimate, nondiscriminatory interest of the housing provider.” The guidance sets out the three-step analysis necessary for considering whether a criminal history ban violates the Fair Housing Act’s disparate impact provisions.
With regard to policies based on arrests (as opposed to convictions), the guidance states that “a policy or practice that denies housing to anyone with a prior arrest … cannot be justified, and therefore such a practice would violate the Fair Housing Act.”
With regard to policies based on criminal convictions, the guidance notes that such policies must be necessary to achieve a “substantial, legitimate, nondiscriminatory interest.” According to the guidance:
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…. [A] policy or practice that fails to consider the nature, severity, and recency of criminal conduct is unlikely to be proven necessary to serve a “substantial, legitimate, nondiscriminatory interest.”