Memo from HUD on using criminal background in screening tenants

2 Replies

Thank you!  I read the first part, and thought "yeah that makes sense" 

A landlord or other housing provider can be liable if its policy or practice regarding its use of criminal records is used to intentionally discriminate against individuals of a protected class. For example, a housing provider can be held liable if they reject a Hispanic individual based on their criminal record but accept a non-Hispanic white individual with a similar criminal record.

Then I got to this part and thought "wait, nevermind. I have no idea".. Especially the last sentence (in bold below) 

landlords must examine closely their neutral policies and practices, which may have an unintended discriminatory effect thus exposing the landlords to liability. One very common example of such a neutral policy is a landlord’s policy of declining to rent to all prospective tenants who are conflicted felons. While this is a neutral policy on its face, in its Memorandum, HUD discusses how these types of neutral policies have a disproportionate effect on African Americans and Hispanics. Landlords must now reconsider their use of such neutral policies and, instead, utilize alternative policies and practices that are difficult to correctly implement.

Am I high or are they telling landlords that they need to utilize policies that are difficult to actually put in place? 

They do go on and say, in bold underlined print "A housing provider cannot be held liable for excluding individuals because they have previously been convicted of manufacturing or distributing a controlled substance" which.. I'd think is a really good example of the sorts of felonies that actually do unfairly target a lot of minorities (for pot anyway, heroin dealers can all burn in hell as far as I'm concerned) 

At the end, they do give some concrete advice, like removing questions from applications that ask about arrests not resulting in convictions, have a written policy that you stick to, and document all your decisions and why you made them.

What they are really saying is that if you have a policy of rejecting all applicants with criminal records and a applicant has a record you need to have a screening policy in place in which you can use something else to reject them. For example a more qualified applicant (in other screening parameters) that you can accept ahead of the applicant with the record. Done correctly you can still maintain your hidden policy of rejecting all those with a record.

This is usually the procedure for example where landlords are faced to accept applicants on section 8. By setting  a higher credit score standard you can usually eliminate all applicants on section 8 since they inevitably have a low score.

You may choose to not rent to criminals or welfare recipients but need a alternate reason to reject. Bottom line is you keep the reason in reserve, never tell a applicant why they were rejected, aside from you have accepted a more qualified applicant. Then if challenged in court you give the alternate reason as set by your screening standards. (criminals often have low credit scores or inconsistent employment histories which you can use to reject)

It all comes down to smart screening practices to eliminate those you do not want that are a protected class. Perfectly legal when your screening standards are applied universally.

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