During last year, the Supreme Court ruled that the disparate impact discrimination claims are cognizable under the 
Fair Housing Act. Under that ruling, the landlords could be liable for discrimination if the impact of a facially neutral housing action has a disproportionate effect on the protected class.
A fresh set of guidelines has been issued by the Department of Housing and Urban Development (HUD) this year that will make it even more difficult for agents and home owners to discriminate against applicants having criminal backgrounds.
The guidelines issued on April 4, 2016 states that refusing flatly to sell or rent to people who have criminal records is discriminatory in nature as minorities – especially the Latinos and African Americans – are arrested and imprisoned disproportionally.
What do the fresh guidelines mean?
“No American should ever be discriminated against because of their race or ethnicity, even if that discrimination results from a policy that appears neutral on its face,” HUD Secretary Julián Castro said during a National Low Income Housing Coalition Policy Forum in Washington D.C. “Black and Latino Americans are unfairly arrested at significantly higher rates than white Americans,” he added.
Under the latest guidelines, owners and landlords are required to do a proper check on a person’s criminal records or background. Property agents and owners are required to make sure whether the person was arrested and if he/she was also convicted. Also, even if a person is found to be convicted, the owner/agent is required to weigh the severity and nature of the crime and conviction while considering a housing application of an applicant. Failing to do so could result in the homeowner/agent facing an investigation for discrimination and, ultimately, civil penalties.
Under the Fair Housing Act, individuals with criminal history are not a protected class and the administration stresses that it might be reasonable and legal in some cases to turn them away for housing. However, the home owners would need to prove that their actions were done in order to keep their property safe.
An aggressive stance has been taken by the HUD that every home owner should remain cognizant while making housing decisions. While preparing a policy of using criminal background checks, a land owner should make sure that their policy is “tailored to serve the housing provider’s substantial, legitimate, non-discriminatory interest and take[s] into consideration such factors as the type of the crime and the length of the time since conviction.” A land owner with no evidence that its action or policy is grounded in non-discriminatory justification will be exposed to complaints. Civil rights groups and housing advocates have praised the move as an important step in the right direction.
Examine in detail all facets of the discrimination ruling by the Supreme Court and what it means under fair housing guidelines by joining this session on the New Guidance Letter by HUD on criminal background checks for potential residents with expert speaker Paul Flogstad.
