On April 4, 2016, Helen R. Kanovsky, General Counsel for the US Department of Housing and Urban Development, released guidance on the application of Fair Housing Act Standards as they relate to the use of criminal records.
Nearly one-third of our population has a criminal record of some sort however, there is a disproportionate number of African Americans and Hispanics with arrests and convictions. Therefore, a policy or practice that restricts access to housing on the basis of a criminal history, may have a disparate impact on individuals of a protected class which makes such a policy or practice unlawful under the Fair Housing Act.
A more defined history of certain types of convictions may be used to exclude individuals but the housing provider must show that the policy serves a substantial, legitimate and nondiscriminatory interest that demonstrates a risk to resident safety and/or property. Although, the housing provider will not be liable under the Act for discriminatory practices by denying residency if the potential tenant has been convicted of one or more specified drug crimes.
Discrimination can occur prior to the application process when the landlord or representative discourages a minority from applying for tenancy due to a criminal record and does not provide this same treatment to a White applicant with the same criminal background.
In summary, due to the racial and ethnic disparities in the criminal justice system, restrictions in housing based on a record of criminal histories, may violate the Fair Housing Act as it discriminates against minority populations.
The full report can be viewed at:
- On June 10, 2016
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