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HUD's Advisory Opinion on Criminal Background Checks

November 4, 2016 Posted in Landlord/Tenant Law

On April 4, 2016, the U.S. Department of Housing and Urban Development (hereafter “HUD”) released “guidance” on criminal background checks and the Fair Housing Act. This advisory opinion describes that arrest, conviction, and criminal background statistics are all largely disproportionate in terms of race. Therefore, criminal background checks are being reviewed as having a potential “disparate impact” (Fair Housing Act definition meaning “unintentional” impact) on this protected class, regardless of whether a background check policy is non-discriminatory on its face. The advisory opinion provides HUD’s analysis of a potential discrimination claim concerning discrimination in criminal background checks. While this opinion is not law per se, it is still largely persuasive to courts. Moreover, the guidance provided by HUD states that landlords may be in violation of the Fair Housing Act by having policies that outright reject tenants with any type of criminal background, without any further parameters in place.

To avoid a discrimination claim under the Fair Housing Act, the landlord must show the background check policy is necessary to achieve a non-discriminatory business objective, and there is no less discriminatory alternative. The prevention of prospective danger is not viewed by HUD as a “non-discriminatory business objective” under the Fair Housing Act. Therefore, if a landlord has a general policy to decline anyone with a criminal background, this is largely discriminatory, regardless of the landlord’s intent.

To deny someone because of a criminal background check, the landlord must narrowly tailor his policy to deny only those severe cases in which danger could be imminent to the community. This means that the landlord must essentially conduct a case-by-case review of the results of the background check, and, if the landlord is successful in justifying his policy against the strict scrutiny of HUD’s advisory opinion, the landlord must also prove that the policy has the least discriminatory effect possible. In order to comply with the Fair Housing Act, landlords must now consider additional information such as the date the crime was committed, the severity of the crime, the circumstances surrounding the crime, the age of the individual when he or she committed the crime, the tenant’s prior history as a tenant, and any evidence of rehabilitation efforts.

 There is one narrow exception (commonly known as the Landlord’s Safe Harbor Provision) to this general analysis. Should the landlord find that a prospective tenant has been convicted of a crime related to the distribution or manufacturing of drugs, the landlord may reject the tenant, in accordance with the Fair Housing Act. However, the HUD advisory opinion states that this does not apply to instances involving mere possession of drugs.

 In conclusion, landlords may need to revise their criminal background check policies in order to conform to the HUD advisory opinion’s narrow requirements. Our office is available to review and provide guidance pertaining to your criminal background check policies and procedures. Please contact our office should you require assistance with this, or any other legal questions.

 The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances.  Each legal matter is unique, and prior results do not guarantee a similar outcome.


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