HUD’s New Guidelines on Tenant Screening and Criminal Background Checks Catherine E. Ybarra, Esq Simone & Associates 3702 4th Avenue San Diego, CA 92103 Telephone: (619) 235-6180 landlordslegalcenter.com

What is HUD? U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Responsibilities: Create nationwide policies and programs to address our country’s housing needs Improve and develop our country’s communities Enforce fair housing laws

Fair Housing Laws The Fair Housing Act of 1968 – Federal law that prohibits discrimination based on race, color, national origin, religion, sex, familial status, and disability. California's Fair Employment and Housing Act and Unruh Civil Rights Act prohibits discrimination based on race, color, religion, sex (including pregnancy, childbirth or medical conditions related to them, as well as gender and perception of gender), sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability

File complaint with DFEH (Cal. Dept. Fair Employment & Housing) What happens if I violate the fair housing laws when screening a tenant? California File complaint with DFEH (Cal. Dept. Fair Employment & Housing) DFEH can investigate and force mediation Prospective tenant can file lawsuit Federal File complaint with HUD HUD will investigate & offers ADR HUD makes finding of discrimination parties choose Federal Court or administrative judge to litigate

Discrimination Against Criminal Ex-Offenders

“Nationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration.”

“A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate.”

Wait so the law considers ex-criminals a protected class? No. “Having a criminal record is not a protected characteristic under the Fair Housing Act.” “Criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability)”

How Discrimination Based on a Criminal Record Occurs Indirectly – prohibitions against renting to ex-offenders may have a disparate effect on affected minority groups. Directly – Landlord rejects an Hispanic applicant based on his criminal record, but admitted a non-Hispanic White applicant with a comparable criminal record Landlord has a policy of not renting to persons with certain convictions, but makes exceptions to it for White people but not African Americans

How does HUD determine if discrimination occurred? 1 - Does LL’s “criminal history policy” have a discriminatory effect or result in a disparate impact on a group of persons because of their race or national origin? HUD may look at national, state or local statistics on racial and ethnic disparities in the criminal justice system Nationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration.

How does HUD determine if discrimination occurred? 2 - Is the policy or practice justified – is it necessary to achieve a substantial, legitimate, nondiscriminatory interest of the LL? Policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property Arrest without conviction not sufficient Distinguish between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not

How does HUD determine if discrimination occurred? 3 – Can the substantial, legitimate, nondiscriminatory interest of the LL be achieved by another practice that has a less discriminatory effect? HUD says look to the following: “facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the conduct; evidence that the individual has maintained a good tenant history before and/or after the conviction or conduct; and evidence of rehabilitation efforts”

Exceptions – Illegal Drug Convictions Act does not prohibit “conduct against a person because such person has been convicted ... of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).” Unless landlord is guilty of intentional discrimination ex. Landlord rejects only African American applicants with convictions for distribution of a controlled substance, while admitting White applicants with such convictions.

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