Criminal background checks and whether you have reviewed lately how you use them in tenant screening is the Grace Hill tip of the week.
A federal lawsuit in New York is challenging a landlord’s blanket ban on leasing to people with criminal backgrounds. The federal government has advised landlords against such bans, saying they could violate fair housing laws, but the practice persists.
The lawsuit alleges that the landlord’s policy disproportionately affects black and Latino men, and thus violates federal law. The policy, although not discriminatory on its face because it doesn’t single out any protected classes, could still be illegal if it has a discriminatory effect. In other words, if the effect of the policy is discrimination, even if not intentional, it would be illegal.
Review your policies regarding residents’ criminal histories to ensure they do not have a disparate impact on minority home seekers. Criminal background checks policies cannot intentionally or inadvertently make it more difficult for them to find housing.
Some estimate that one in three Americans has a criminal record, and studies cited by HUD show that certain racial and ethnic minorities are arrested and convicted of crimes more than others. This means certain criminal history policies could have a disparate impact on minority home seekers, making it difficult for them to find housing.
Some individual cities, such as Seattle, have now gone even further in restricting what landlords can ask about a potential tenant’s criminal background.
4 tips on criminal background checks
HUD has provided guidance for developing, reviewing or revising a community’s criminal background checks policy. Here are tips to help you comply with the guidance.
- A policy may use criminal convictions as a screening criterion because a conviction is sufficient evidence that someone engaged in criminal conduct, but may not use convictions to automatically exclude individuals.
- The policy should not deny residency or otherwise discriminate against an applicant or resident based solely an arrest record. An arrest is not the same as a conviction.
- A policy may use criminal convictions as a screening criterion because a conviction is sufficient evidence that someone engaged in criminal conduct.
- However, a policy should not automatically exclude individuals because of a criminal conviction. Instead, it should consider factors such as the nature and severity of the crime and how long ago the crime was committed.
Note that a policy can automatically exclude based on convictions for the illegal manufacture or distribution of a controlled substance. Related convictions, such as drug possession, are not covered by this exception.
No blanket denials
If a resident or applicant is denied housing because of a criminal history, you should be able to show how the criminal conduct affects your ability to protect residents’ safety and property.
As HUD states, you must be able to show that a policy “accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.”
Don’t forget the importance of being consistent. If you make an exception to your standard policy for criminal background checks for one prospective or current resident, you must offer the same exception to other prospects or residents who are in similar situations.
Take some time in this New Year to evaluate your screening processes to make sure they do not produce a disparate impact.
Remember, policies may consider criminal history in appropriate way, but should not contain exclusions that are arbitrary or too broad. For more information, review the full text of HUD’s guidance here.
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About the author:
Ellen Clark is the Director of Assessment at Grace Hill. Her work has spanned the entire learner lifecycle, from elementary school through professional education. She spent over 10 years working with K12 Inc.’s network of online charter schools – measuring learning, developing learning improvement plans using evidence-based strategies, and conducting learning studies. Later, at Kaplan Inc., she worked in the vocational education and job training divisions, improving online, blended and face-to-face training programs, and working directly with business leadership and trainers to improve learner outcomes and job performance. Ellen lives and works in Maryland, where she was born and raised.
About Grace Hill
For nearly two decades, Grace Hill has been developing best-in-class online training courseware and administration solely for the Property Management Industry, designed to help people, teams and companies improve performance and reduce risk.
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