Blanket Bans on Criminal History in Renting Have a Disparate Impact on People of Color
Housing providers may require individuals to undergo a criminal background check as part of the application process. A provider may use results of the criminal background check to determine whether an individual qualifies for a housing unit.
However, not all housing providers use criminal background checks in the same way. Some housing providers check to see if a person has a criminal background and, if so, whether the particular details of that history would prevent the applicant from being a safe and reliable tenant. But other housing providers have rules that restrict anyone with a criminal record from living at a property, regardless of the specific circumstances surrounding the record. This type of policy is based on misguided and inaccurate assumptions that individuals with criminal histories are more dangerous than others. It is likely illegal under the federal Fair Housing Act.
It is critical that housing providers apply their criminal records screening policies to all applicants in the same manner, regardless of factors like an applicant’s race or national origin.
HOME has created a model policy regarding the use of criminal history to screen prospective tenants. You can download that word doc below.
Decades of “tough on crime” policies, including the War on Drugs, have yielded a prison population in the U.S. that is, by far, the largest in the world. Nearly one-third of the U.S. population has a criminal record of some sort. Across the country, some people are more likely to have a criminal record than others. This is true because of a variety of policy trends and social factors, not necessarily because such groups are more likely to commit crimes.
For example, across the board, the burden of involvement with the criminal legal system has fallen much more heavily on people of color than white people. Nationally, African Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their share of the general population.
In addition, people with disabilities are dramatically over-represented in prisons and jails across the country, and many survivors of domestic violence have a criminal record related to the violence perpetrated against them.
The U.S. Department of Housing and Urban development and the U.S. Department of Justice are responsible for enforcing the Fair Housing Act. Even though having a criminal record is not a protected identity under the Fair Housing Act, both agencies have released information about how the Fair Housing Act may apply to criminal records screening policies in 2016. Three major takeaways from that guidance are:
- A Fair Housing Act violation occurs when a housing providers treats individuals with comparable criminal histories differently because of race (or some other protected characteristic). For example, it would be illegal under the Fair Housing Act for a landlord to require a background check for African American applicants but not white applicants.
- Criminal records based restrictions for housing opportunities will violate the Fair Housing Act if their burden falls more often on one protected group of people over another without a substantial, legitimate business justification. For example, because of the stark racial disproportionalities that exist across the criminal legal system, a ban on any applicant with a criminal record in an apartment community would likely violate the Act because it would severely limit housing opportunities for Black and Latino housing applicants without making the community safer.
- Criminal records screening policies based on arrests alone, and not actual convictions, will not be able to successfully claim that such a policy assists in achieving the substantial, legitimate, nondiscriminatory interest of protecting resident safety and/or property because, as the Supreme Court has stated, “an arrest shows nothing more than that someone probably suspected the person apprehended of an offense.”
It is important to understand that there are also numerous additional, in-depth criminal history related restrictions and provisions in relation to public and other types of federally subsidized housing.
Signs to Look Out For
If you are a person with a criminal record, here are some signs you can look out for that suggest you may have experienced illegal housing discrimination:
- You believe that a housing provider only requires some applicants to undergo a criminal background check.
- You aren’t even able to submit an application because of a felony conviction on your record.
- A housing provider has a criminal records screening policy in place that bans all applicants with any criminal history, regardless of factors like the nature of the crime, how long ago it occurred, or actions an individual has taken to rehabilitate themselves since.
- A housing provider makes derogatory remarks based on stereotypes about crime based on protected areas of your identity. For example, a housing provider tells a trans person that she does not want trans renters because all trans individuals are sex workers, or a landlord tells a grandmother with teenage grandsons residing with her that he does not rent to families with teenage boys because teenage boys commit crimes so often.
- A housing provider tells you that they make decisions about applicants based on arrest records.
- You overhear a housing provider asking some applicants about criminal history but not others.
- You have a criminal record related to your disability, and request a reasonable accommodation to a criminal records screening policy but are denied.
- You are experiencing domestic violence and are arrested due to that violence, and a housing provider tells you that you need to move because you’ve been arrested.
What You Can Do as a Renter with a Criminal History
Finding a home that meets your needs if you or a household member has a criminal record can be challenging. Remember that you have rights and that there are organizations available to assist you! Here are some steps that you can take if you are looking for a home and it feels like a criminal record you’ve moved on from is getting in your way:
Carefully document your interactions with landlords and agents.
This could help uncover discriminatory conduct. Take detailed notes during your housing search, including:
- Property name, address, and phone number.
- Name and title of the agent(s) you spoke with.
- Date and time of the call/visit.
- Was there a criminal background check required –and, if so, what was the fee for it?
- Were there any apartments available within your move in date? If not, what was the earliest availability date?
- How much was the rent and security deposit? What utilities were included?
- Do you know the rent and terms of other tenants?
Save copies of the listings, rental applications, correspondence such as business cards and any emails and letters that you compile during your housing search.
Even after you have moved into your unit, take detailed notes of your conversations with your landlord, including the date the conversations took place. Save copies of all correspondence, documents, and receipts.
If a housing provider denies your application, ask them why they did so.
If they tell you that it’s because of something that came up in a criminal background check, ask them for the name, address, and phone number of the consumer reporting company that supplied the report, then obtain a copy of it (you’re legally entitled to a free copy). Review it closely and ensure that the information included in it is accurate. If the information is not accurate, dispute it with the reporting company. It is your right to do so under the Fair Credit Reporting Act.
Research indicates that criminal background reports regularly mismatch people with similar names or birth dates; neglect crucial information about a case; include sealed or expunged information; provide misleading information; and/or misclassify offenses. If a reporting company will not investigate and/or change inaccurate information on the report, you can file a complaint with the Federal Trade Commission. If you identify inaccurate information in the report and are still interested in living in the home you applied for, you can always try explaining the inaccuracies to the housing provider and asking them to reconsider their decision.
If a housing provider tells you that they do not accept any applicants with an arrest and/or conviction record, ask for their policy in writing.
Take notes and document your interactions to the greatest extent possible. If you are still interested in renting a home from them, provide them with a copy of the April 2016 HUD guidance on criminal records screening policies and fair housing. Explain that it may be illegal for them to have such a broad policy, explain why you will make a great tenant, and ask them to reconsider your application. If you are unsure how to format your request for reconsideration, download the appeal example letter and instructions below. Consider reporting the outcomes of your experience to HOME.
If the provider denies your request for reconsideration or you are not interested in living at the property any longer but are interested in filing a fair housing complaint, contact HOME. Even if you are not interested in filing a complaint, consider reporting your experiences.
If you have a criminal record related to a disability and your record is leading to a denial of housing, you may be able to request a reasonable accommodation to a housing provider’s criminal records screening policy. If you need assistance with making a reasonable accommodation request or if you feel that a request has been illegally denied, contact HOME. If you are a survivor of domestic violence with a criminal record that is related to the violence you experienced, there may be some legal protections you can access based on the kind of housing you are applying to live in and/or where you live. Keep a detailed record of your interactions with the housing provider and contact HOME or a domestic violence service provider for more advice and assistance.
While HOME cannot help with every case, we do want to know about potentially discriminatory policies.
Call us 804-354-0641 if you are denied because of your criminal history after following the above steps.
**Web page content provided by the Equal Rights Center’s Criminal Records Toolkit for Consumers.**