Here we go. Faithful Fair Housing Defense blog readers may recall that I reported on new guidance from the U.S. Department of Housing & Urban Development (HUD) back in April 2016 noting that what they believe as strict criminal history screening on housing applicants by management may have a "disparate impact" on certain protected classes (in this case African American and Hispanics) as individuals from those two classes are in jail at a higher percentage than one would otherwise expect based on their percentage of the U.S. population. In short, HUD's guidelines concluded that a strict criminal history matrix could unlawfully discriminate against African American and/or Hispanic applicants in violation of the Fair Housing Act (FHA).
Next, New York implemented new regulations concerning state funded housing which essentially requires an individualized review of an applicant with a criminal history to determine if the offense is one that should or should not disqualify him/her from housing. New York now requires landlords at state funded housing sites to take a detailed look at how long ago was the offense, the specific type of offense, what rehabilitative efforts have been made, and if the applicant would truly be a direct threat to the other residents, to the property, and to the management team members.
It is clear that the trend is to change the burden and make it harder for management to keep criminals out of housing.
In sum, the criminal history train is officially on the tracks and professional apartment management needs to take a look at your policy to determine (as best you can) if your screening criteria will pass muster under the new guidelines. In the intervening months, I have had no less than five clients reach out to me to take a look at (and in some cases modify) criminal screening criteria. Which is good because I currently have two administrative complaints and one informal inquiry concerning this specific point. HUD (and various local fair housing tester entities) are out there looking to bring the right disparate impact criminal screening fair housing cases. You don't want to be one of the early test cases. Or you will really need to speak with a lawyer like me.
Just A Thought.
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