Fair Housing and Criminal Record

HUD's Criminal Background Rule

The Fair Housing Act prohibits discrimination in housing based on membership in groups called protected classes. These classes include race, color, national origin, religion, sex, family status, and disability. While federal law does not prohibit criminal background screening, The U.S. Department of Housing and Urban Development (HUD) released guidance about how the Fair Housing Act applies to housing policies with regard to criminal background checks.

Criminal background checks are often used as screening criteria for rental housing to determine qualified applicants. For those with a criminal history, these screenings have become a barrier to obtaining housing. Many formerly incarcerated individuals, who have paid their debt to society, face continued penalties outside of the courts by being excluded from much of the housing market. HUD recognizes racial and ethnic disparities in the criminal justice system including disproportionate and unequal rates of arrests and convictions, and harsher sentencing of African Americans and Latinx populations in particular. The result of this disparity is a disproportionate burden on these protected classes, which can be a violation of the Fair Housing Act. Therefore, HUD has released guidance to address this housing obstacle. In 2016, HUD issued guidance on applying Fair Housing Act Standards to the use of criminal records screening in housing-related transactions.

This guidance prohibits landlords from:

Denying housing based on arrest records.
Blanket bans on anyone with a criminal history.
Conducting background checks inconsistently, performing them on some and not others based on stereotypes or fear.

Further, a landlord must:

Consider individuals on a case-by-case basis and evaluate the nature and severity of the crime, and consider the length of time that has passed since that crime was committed.
Make a determination based on facts and evidence, and not a perceived threat.

Denial Based on Criminal History

Individuals can legally be denied housing if their recent criminal history makes them dangerous and a risk to other tenants or neighbors. The denial must be based on reliable evidence and not be hypothetical or speculative. Denials also:

Must provide evidence proving that the housing provider has substantial, legitimate, nondiscriminatory interest supporting the denial.
Must show that the housing policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety/ property and criminal conduct that does not.

HUD regulations governing some federally-assisted housing require only two permanent bans: applicants with a lifetime requirement to register as a sex offender, and applicants convicted of manufacturing methamphetamine on federally assisted property.

Examples of Possible Discrimination Based on Criminal History

A housing provider will not rent to a male tenant because he served time in prison for robbery or drug possession 30 years ago, but has not been in trouble with the law since.
A housing provider automatically discards any applications where the potential renter has checked the box inquiring if they have ever been convicted of a felony.
A housing provider uses the person’s criminal history to deny housing as a means to discriminate on another basis, such as the person’s sexual orientation, disability or national origin.
An individual has a criminal record due to a past drug addiction, but has since successfully completed a rehabilitation program. (Recovering drug addiction is considered a disability under the Fair Housing Amendments Act of 1988 that prohibits discrimination based on disability, and includes additional protections such as reasonable accommodations and reasonable modifications.)

The Fair Housing Project

West Tennessee Legal Services is available to provide information concerning a person’s rights under the Federal Fair Housing Act. If you believe you are a victim of discrimination in housing, contact us at 800.372.8346 or 731.423.0616 for assistance. When necessary, staff can assist you in filing a complaint with the U.S. Department of Housing and Urban Development (HUD) or other appropriate administrative or judicial bodies.

If you believe that you have been discriminated against in a housing situation, please fill out and return the reply card attached to this brochure. A housing counselor will discuss the situation with you and help you to decide what to do next. Your response to us will be kept confidential.

“The work that provided the basis for this publication was supported by funding under a grant with the U.S. Department of Housing and Urban Development. The substance and findings of the work are dedicated to the public. The author and publisher are solely responsible for the accuracy of the statements and interpretations contained in this publication: Such interpretations do not necessarily reflect the views of the Federal Government.”

For more information or to apply for assistance:

West Tennessee Legal Services

www.wtls.org

Toll Free: 1-800-372-8346 ext. 1250

Fax: 731-423-2600

Email: wtls@wtls.org

To download a copy of this brochure, please click here.

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