Fair Housing and Criminal Background Checks

In its June 2012 lesson, Fair Housing Coach takes a look at a “hot topic” in fair housing circles—the use of criminal background checks in screening prospective residents.

The practice of using criminal records data to screen applicants is now commonplace in conventional housing communities—even required in federally assisted and public housing communities. Yet the practice is drawing scrutiny, at least in part, because it affects a growing number of prospective residents: Over the past 20 years, there has been a sharp increase in the number of Americans who have had contact with the criminal justice system, meaning a significant increase in the number of people with a criminal history.

Although communities have legitimate reasons to safeguard their property and residents, many have raised concerns about the use of criminal background checks under federal civil rights laws.

In a nutshell, the issue is whether the exclusionary policies based on criminal background checks have an unfair effect—in legal parlance, a disparate impact—on African Americans and Hispanics, who are protected under federal civil rights laws governing employment and housing.

In general, the law recognizes at least two types of illegal discrimination: disparate treatment (intentional) and disparate impact (unintentional). Most people recognize that intentional discrimination is prohibited by civil rights laws, but they may be unaware that it’s possible to have “unintentional” discrimination, such as when a rule or leasing policy that applies to everyone tends to affect a protected group or minority more than others. Usually, this kind of unintentional discrimination (disparate impact) has to be proved using statistical evidence.

The issue gained traction last month when the Equal Employment Opportunity Commission (EEOC) issued new guidelines governing the use of criminal arrest and conviction records in employment decisions. Among other things, the EEOC’s new enforcement guidance recognized that exclusionary criminal records policies may have a disparate impact based on race and national origin.

Unfortunately, there has been little guidance in the housing arena. Neither HUD nor the courts have formally addressed fair housing concerns about the use of criminal background checks by conventional housing communities. While a few states limit the use of criminal records in housing and employment decisions, only a handful of local governments have added fair housing protections for individuals with criminal records.

Nevertheless, it may be a good time to review your community’s policies and practices when it comes to the use of criminal background checks while screening potential residents. Courts often look to employment discrimination law in deciding fair housing cases, so the EEOC’s action may be a sign of things to come.

The June lesson, “The Dos & Don’ts of Conducting Criminal Background Checks,” available on our homepage, reviews the use of criminal background checks in conventional housing communities and offers six Dos & Don'ts to avoid potential fair housing problems—now and in the foreseeable future.