CRIMINAL SCREENING PROCEDURES UNDER ASSAULT BY HUD
HUD's New Position on Criminal Screening
On April 4, 2016, the Department of Housing and Urban Development (HUD) issued a memorandum that will drastically affect landlords' criminal screening policies. Although criminals are not a protected class under the law, HUD states that “African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population”. HUD's position is that criminal screening of prospective tenants will likely have a disproportionate, or disparate, impact on these racial groups, drug offenses notwithstanding. Disparate impact is when there is a policy or practice that is neutral on its face, but is still found to have a discriminatory effect against a protected class. It looks at not just the intent of a policy, but the consequences of it as well.
What Does This Mean for Landlords and Property Owners?
Criminal screening by landlords coming under attack by HUD is yet another overreach of fair housing. However, HUD may still allow landlords to screen based on the nature and severity of the crime and the time elapsed since the conviction. The landlord must show that the screening policy is necessary to achieve a substantial interest and this must be based on actual evidence, as generalizations regarding behavior of criminals alone will not suffice.
In light of HUD’s requirement to support any criminal screening policies with data, we urge property owners to talk to their insurance carriers and third party screening companies and request that they provide actual statistics. Specifically, evidence that would show that past criminal offenders have a greater propensity to engage in future conduct that may jeopardize the overall safety and welfare of other tenants and the property at-large. After all, it is in their best interest to engage in this process.
Sex Offenders
Although HUD does not specifically address sex offenders, it is our position that it is reasonable to enforce a prohibition since these offenders generally do not fall into a specific racial designation. This is especially true if a property falls within a location that an offender would be precluded from living at under existing state law, such as in close proximity to a school. However, since there is no formal statement from HUD regarding these offenders, they are not technically precluded from investigating a denial. Therefore, it is ultimately up to the landlord to determine how aggressive to be.
This is a standard risk assessment as to the value of disallowing convicted felons for a potentially safer resident base versus exposure to fair housing liability. If an accommodation is sought by a prospective resident, then it should not be dismissed out of hand. Also, as with any fair housing issue, be mindful that investigators of these claims will interpret these new guidelines as broad as possible to serve their agendas. Therefore, having an overall fair housing policy is key to significantly reduce your risk. If you would like to have a policy drafted or reviewed, please contact our office and we can discuss with you in more detail. Also, for all things landlord-tenant, follow us on twitter at https://twitter.com/paletzlaw.
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