Automatically Eliminating Criminal Records? Not so fast, says HUD

[Mindy Jensen]

Criminal record? For years, landlords have been able to automatically disqualify any tenant with a criminal record - as they were not a protected class under Fair Housing Laws. 

Recent recommendations from HUD are calling this practice discrimination.

Automatically disqualifying them based on their criminal record - which could be decades old, may not ever have resulted in a conviction or jail time, and gives no consideration to their behavior since the arrest - can be a form of discrimination.

The reasoning behind this recommendation is that nearly 1/3 of Americans have a criminal record, and a disproportionate amount of those with a record are minorities. To discriminate solely based on having a criminal record "... results in a disparate impact on a group of persons because of their race or national origin."

People with criminal records are still not a protected class - and in some cases, turning them down based solely on their conviction is justifiable. Think recent felony convictions for murder, rape, theft or drug manufacture or distribution.

But blanket statements regarding arrest records might get you into hot water.

HUD is recommending that you examine each tenant on a case by case basis.

We've been having a lively in-house discussion here at BiggerPockets, and @Brandon Turner said "HUD wants us to look at each case specifically and decide if it was ‘bad enough?" That is just asking for a lawsuit. Making tenant screening subjective is a terrible idea."

Here's the link to the entire paper. Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions

Do you discriminate against criminal records? Do you look on a case by case basis or blanket discriminate?