Law pg 11,12.qxp_Layout 1 7/18/22 2:18 PM Page 1
It’s the Law
By HOWARD BOOKSTAFF, Hoover Slovacek LLP , HAA General Counsel
REVIEW YOUR SCREENING POLICY HUD confirms its concerns about criminal history screening.
ON MARCH 31, 2022, President Biden declared April as Second Chance Month, emphasizing the importance of helping persons who have had criminal involvement reenter society, reunite with their families, and find stable and safe homes. On April 12, 2022, the Secretary of HUD instituted an agency-wide effort to review HUD programs to ensure HUD and others are as inclusive as possible of individuals with criminal involvement. On June 10, 2022, HUD published a memorandum to highlight the importance of applying principles of HUD’s 2016 guidance on the application of the Fair Housing Act standards to the use of criminal records by housing providers. HUD’s memorandum provides tips to HUD agencies conducting investigations relating to criminal background screening and sets out some best practices the agencies can suggest to housing providers who may be concerned about potential liability relating to the use of criminal background screening information. Although you may not agree with all HUD has stated, we can learn from how HUD applies the Fair Housing Act to criminal history screening policies. Housing disparities in the criminal justice system The memorandum and the previous HUD guidance focuses on the disparities in the criminal justice system as a basis for relating potential fair housing claims to criminal history screening. HUD states: • Disparities throughout the Unites States criminal justice system are well established and persistent. • Blacks represent roughly 13% of the total US population that account for roughly 27% of all arrests. • In 2019, the incarceration rate of Black www.haaonline.org
males was 5.7 times that of White non-Hispanic males, while the incarceration of Black females was 1.7 times the rate of White nonHispanic females. • Updated data shows that individuals with disabilities are also disproportionally impacted by the criminal justice system. • Housing providers frequently employ policies or practices that exclude individuals with criminal involvement from housing, which HUD states should raise red flags for investigators. • Screening companies that provide background check reports are often inaccurate, incomplete or have no relationship to whether someone will be a good tenant. • Some housing providers inform potential residents that they do not rent to persons with “criminal records,” deterring those with any criminal involvement from applying. Three theories of liability HUD states that using criminal history to screen, deny lease renewal, evict or otherwise exclude an individual from housing may be illegal under the Fair Housing Act under the theories of discriminatory intent, discriminatory effects and refusal to make reasonable accommodations. Discriminatory intent HUD advises its agencies that claims that a housing provider has used criminal records or other criminal history information to discriminate intentionally in violation of the Act should be investigated in a manner similar to other allegations of intentional discrimination. Criminal records or other criminal history information may be a pretext for unequal treatment of individuals because of race, color, national origin, disability or another protected characteristic.
Discriminatory effects HUD states housing provider’s criminal background screening policy could create an unjustified discriminatory effect in violation of the Act and claims should be analyzed under a three step discriminatory effects analysis. 1. Step 1 (a statistical showing of discrimination) Investigators must gather evidence regarding whether the challenged criminal history policy or practice actually or predicably results in a disparate impact on a protected class. This involves identifying: (i) a housing provider’s relevant practices or policies and (ii) statistics which show whether the identified policies actually or predictably result in a disparate impact on a protected class. 2. Step 2 (potential defenses) HUD states that investigators should anticipate common defenses and independently determine whether there is any evidence that supports or refutes a potential defense. Potential defenses include a claim that the screening policy is necessary to achieve a substantial, legitimate, non-discriminatory interest such as addressing safety or property concerns. However, policies and practices that fail to consider the nature, severity and recency of an individual’s conduct are unlikely to be necessary to serve a substantial, legitimate, non-discriminatory interest. 3. Step 3 (less discriminatory alternative) HUD states that if the policy is necessary to achieve a substantial, legitimate, non-discriminatory interest, investigators should gather information and analyze whether the same interest could be served by another practice that has a less discriminatory effect. If so, the housing provider’s defense fails. August 2022
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