Housing providers urged to be cautious when applying criminal background checks

With multiple housing providers facing lawsuits over their alleged misuse of criminal histories in housing decisions, the National Association of Realtors has come up with a few best practices for agents who insist on using them.

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The tips, presented in a recent “Window to the Law” video, aim to prevent agents and housing providers from accidentally violating fair housing rules when they factor criminal background checks into their decisions.

The U.S. Department of Housing and Urban Development issued guidance back in 2016 that urged housing providers to be careful when using applicant’s criminal histories to guide their decision-making. The fear is that because African Americans and Hispanics are arrested, convicted and incarcerated at disproportionate rates compared with the general population, that could result in more housing applications from those minorities being rejected.

“While persons with criminal records are not a protected class under the Fair Housing Act, race, color and national origin are,” explained NAR staff attorney Maame Nyamekye in the video. “The improper use of criminal history to make housing decisions may have a disparate impact on those protected classes.”

That seems to be the reasoning behind a number of high-profile lawsuits that allege discrimination based on criminal background checks. In Florida, 48 housing providers were sued in 2019 for alleged improper criminal background screening of prospective tenants. While those cases are still ongoing, a housing provider in New York last year settled a lawsuit for more than $1 million due to its alleged policy of refusing to rent its properties to anyone with a criminal record.

Housing providers therefore need to tread carefully, Nyamekye said. As such, she advised that any provider wishing to use criminal history when making decisions about renters should ensure they have a written criminal history policy and apply that policy consistently for all applicants. It also shouldn’t consider anyone’s arrest records if no conviction resulted from those arrests. They should also avoid blanket bans on applicants with a criminal conviction – rather, use their record as a guide and consider if that person has managed to turn their life around.

Finally, providers should ensure all housing decisions they make should be fully documented in case allegations are later made against them, Nyamekye said.