The Current State of Criminal Screening
November 26th, 2019 | By: Mircea Iosif, Esq.
Ardent readers of the Paletz Law blog know that landlords need to be compliant with the Fair Housing Act, which prohibits discrimination against race, color, religion, national origin, sex, familial status, and disability. Also, states and local municipalities may have additional protected classes, such as age and marital status in Michigan and military status and ancestry in Ohio.
Yet beyond these codified classes, evolving social norms, coupled with changes in heads of government and their respective departments, give way for expansion of persons who may be entitled to fair housing protections.
For example, although criminals themselves are not a protected class, guidance shifted a few years ago that now gives a potential safeguard for applicants with a criminal background. Prior to 2016, these individuals may not have passed a landlord’s screening criteria, but since then, they now may be more likely to qualify for tenancy.
The reason behind this significant expansion of fair housing protection comes from HUD’s Disparate Impact definition, as well as subsequent recognition by the United States Supreme Court. In short, disparate impact holds that a policy can still be deemed as discriminatory despite being neutral on its face. The burden starts on the person making the claim to show a discriminatory effect of a landlord’s policy, in that the policy is “arbitrary, artificial, and unnecessary to achieve a valid interest or legitimate objective.” If this is achieved, and the policy in turn has an adverse effect on members of a protected class, then the individual could potentially have grounds for a fair housing claim against the landlord.
Under the current administration however, HUD is proposing revising the Disparate Impact rule to provide more clarity in order to, in part, facilitate addressing the lack of affordable housing. More specifically, certain industries believe that updated direction may allow for more practical decision making and policy implementation from businesses.
Yet until such time, landlords need to abide by existing guidelines. This in turn ultimately affects landlords who seek to promote a safe living environment for their tenants. In the past, prospective tenants who were charged with a crime could very well be denied housing based on conviction of the charges, and possible even a mere arrest, and without regard to the nature of the crime. Now though, denying a prospect without taking into consideration the type of crime and the duration that has lapsed since its occurrence, as well as any individual factors, could result in fair housing liability for the landlord.
As such, as our Firm noted at the inception of these guidelines, it remains crucial for a landlord to review their screening policies to be compliant with current fair housing criteria. Yet that doesn’t mean that a landlord has to be lax on crime, either. It is our position that a staunch position on violent offenses can be still be taken, and with respect to sex offenders, we likewise champion considering a strict position as to these individuals. Even though denial based on these offenses may not necessarily preclude a claim being brought by an individual (especially if the offense occurred a significant time ago), from a customer relations standpoint a landlord may deem this risk to be outweighed.
Be mindful though that if an individual asks for reconsideration upon denial, it should be treated as a reasonable accommodation request. In the reconsideration process, a landlord may want to evaluate asking for additional information to be provided from the applicant before a determination can be made. If this scenario occurs, contact the attorneys at Paletz Law for a more detailed assessment.
The Bottom Line: As a landlord, it is important to be conscious of the shifting environment in laws and regulations, which continue to shape how tenant screening is done. With a presidential election coming up in less than a year, a change in leadership could revert back to a more aggressive approach taken with respect to enforcing HUD guidance relating to criminal screening and disparate impact.
 Texas Dept. of Housing and Comm. Affairs v. Inclusive Communities Project, Inc, https://www.supremecourt.gov/opinions/14pdf/13-1371_8m58.pdf