DOJ Files Brief in Lawsuit Over Criminal Background Check Policy

November 16, 2016
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The Justice Department recently filed a statement of interest in a lawsuit challenging the use of criminal background checks at a New York community. In its brief, the Justice Department argued that the Fair Housing Act (FHA) requires that landlords who consider criminal records in evaluating prospective tenants do not use overly broad generalizations that disproportionately disqualify people based on a legally protected characteristic, such as race or national origin.

The lawsuit was filed by an organization that helps formerly incarcerated individuals find housing, alleging that the 917-unit affordable housing complex had a policy of refusing to rent to individuals with prior convictions for felonies or misdemeanors other than traffic offenses. The organization argues that this policy has an unjustified disparate impact against prospective African-American and Hispanic tenants, in violation of fair housing law.

The DOJ’s brief doesn’t take a position on the factual accuracy of the plaintiff’s allegations, but instead aims to assist the court in evaluating whether a housing provider’s policy that considers criminal records in an application process produces unlawful discriminatory effects in violation of federal fair housing law. Although the FHA doesn’t forbid housing providers from considering applicants’ criminal records, the brief states that “categorical prohibitions that do not consider when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then run a substantial risk of having a disparate impact based on race or national origin.”

The brief explains that when a housing provider has a criminal record check policy with a disparate impact, the housing provider must “prove with evidence—and not just by invoking generalized concerns about safety—that the ban is necessary.” Even then, the policy will still violate the FHA if there is a less discriminatory alternative.

“This filing demonstrates the Justice Department’s steadfast commitment to removing discriminatory barriers that prevent formerly incarcerated individuals from restarting their lives,” Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division, said in a statement. “Women and men who served their time and paid their debt to society need a place to live, yet unlawful housing policies can too often prevent successful reentry to their communities. While not all criminal records policies adopted by landlords violate the Fair Housing Act, we will take action when they do."

The Justice Department said that the legal position taken in this case is consistent with HUD’s recent guidance concerning how the FHA applies to the use of criminal records by providers or operators of housing and real-estate related transactions.