Landlords and other housing providers may require individuals to undergo a criminal background check as part of the application process. They may also use the results of a criminal background check to determine whether an individual qualifies for housing. However, in using such information, they must ensure that they do not discriminate under fair housing laws.
Although the federal and North Carolina State Fair Housing Acts do not specifically mention “criminal history,” the laws do provide some protections to individuals with arrest and conviction histories. In addition, certain types of affordable or subsidized housing is governed by federal and state regulations and policies that restrict how landlords use criminal backgrounds in making decisions about a tenancy. Below is an overview of these provisions, including sections covering: overly broad criminal background policies; individualized assessments in screening; protections survivors of domestic violence; protections for individuals with a disability; and public housing and subsidized housing policies.
As with other types of policies, housing providers must apply criminal record screening policies equally to all applicants. For example, housing providers cannot require background checks for African American or Hispanic/Latino applicants, but not for white applicants. In addition, housing providers cannot treat applicants with comparable criminal backgrounds differently because of race, color, religion, national origin, sex, familial status, or disability. For example, housing providers cannot reject an applicant with a disability who has a criminal background, but accept a tenant without a disability who has a similar criminal background.
Overly Broad Criminal Background Policies in Housing
Even where a housing provider treats everyone the same, an excessively restrictive criminal background policy could violate the Fair Housing Act if the policy is not based on a substantial, legitimate business justification. This is because research has shown that members of certain protected classes – such as African Americans, Latinos, and people with disabilities – are more likely to be arrested and convicted than members of other groups, despite committing crimes at similar rates. As such, criminal background policies may have a disproportionate impact on these groups.
In guidance on the issue of criminal background screening policies, HUD stated that housing providers should not exclude prospective tenants based solely on arrest (without conviction), as a mere arrest does not provide evidence of illegal behavior.
Similarly, a policy of excluding prospective tenants with any type of conviction – regardless of the nature, severity, age of the record, or any rehabilitative efforts since the conviction – would generally not be proper, though a more narrowly tailored policy that took into account those factors to exclude individuals who could present a danger to others or to property, would be permissible.
Click here to read HUD’s 2016 guidance on criminal record screening. HUD’s newly proposed amendments to its 2013 disparate impact rule may affect the burden on plaintiffs asserting Fair Housing Act violations on the basis of an overly broad criminal background policy.
Individualized Assessments in Criminal Background Screening
Housing providers may conduct individualized assessments and consider facts that would put a criminal background in context and show that the applicant will be a good tenant. Facts that an individual may want to present include:
- Circumstances related to domestic violence, such as if acts of domestic violence against you, led to an arrest or conviction.
- Circumstances related to a disability led to an arrest or conviction.
- Conviction has been dismissed/expunged.
- Positive changes since the arrest or conviction.
- Employment, job-training program, school, or participating in a treatment program.
Survivors of Domestic Violence
A survivor of domestic violence may have a criminal background because they were arrested during a domestic violence incident, even though they were the victim or because their abuser coerced them to participate in a crime.
Overly broad criminal background screening policies may violate the Fair Housing Act if they disproportionately limit housing opportunities for survivors of domestic violence. Survivors may have other protections under the FHA, as well as under the Violence Against Women Act. Contact us for more information.
People with Disabilities and Reasonable Accommodations
In some cases, if a person was denied housing due to a criminal background that is related to their disability, the applicant may be able to request a reasonable accommodation to the housing provider’s criminal background policy. Individuals would follow the normal procedures for requesting reasonable accommodations. Click here for more information about requesting a reasonable accommodation or contact us for more information.
Public Housing and Other Subsidized Housing
The information above applies to almost all types of housing, including private rental housing. Subsidized housing providers may be required to follow certain policies, including criminal background screening policies, to ensure compliance with the Fair Housing Act and the Violence Against Women Act.
Public Housing Authorities, Section 8 Voucher Administrators, and other subsidized housing providers will generally conduct a criminal background check on each adult applicant.
- Individuals should consult their local Public Housing Authority or Section 8 housing choice voucher administrator for specific information. These agencies are required to have an “Admissions and Continued Occupancy Policy” or “Administrative Plan” that sets out eligibility. Individuals may also review guidance issued by the U.S. Department of Housing and Urban Development, including FAQs: Excluding the Use of Arrest Records in Housing Decisions and Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decision (Notice PIH 2015-19).
- For housing developed with Low Income Housing Tax Credits, individuals should consult the tenant eligibility criteria published by the North Carolina Housing Finance Agency, which administers the State’s tax credit program. The guidance includes criminal background screening policies and is available online by clicking here.
If you were denied housing because of the results of a criminal background screening:
- DOCUMENT every interaction you have with the housing provider. Include information about the property, addresses, dates, times, names of the people you spoke with, and nature of the interaction.
- SAVE any applications, brochures, emails, texts, and any other documents related to the interaction.
- ASK FOR A COPY of the background check they conducted. You are legally entitled to it.
 Under federal regulations, Public Housing Authorities will reject an applicant if (1) the person must register as a lifetime sex offender in any state; or (2) the person has been convicted of manufacturing methamphetamine in federally assisted housing.
More from this Newsletter Issue: Summer 2019
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