1. Criminal Background Checks & the 2016 HUD Guidance
Presented by: Lynn N. Dover, Esq.

2. Overview Disparate Impact Criminal records
Criminal records and fair housing
HUD guidance
Criminal record screening
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3. Disparate Impact Definition Part of California fair housing law
Examples
Part of California fair housing law
Supreme court ruling (2015)
Confirms disparate impact applies to federal fair housing enforcement
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4. Criminal Records Nationally
1 in 3 adults arrested by age 23
As many as one in 3 Americans have a criminal record
Number of Americans incarcerated has quintupled in the past 30 years
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5. Criminal Records Nationally (cont.)
Disproportionate impact on certain communities
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6. Effect of Criminal Records in Society
Employment
EEOC guidance (2012)
Socio-economic status
More likely to fall within poverty levels
Drug-related felony convictions ineligible for certain types of assistance
Disenfranchisement
Housing
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7. 2016 HUD Guidance on Use of Criminal Records
Released April 4, 2016
Applies to all housing providers
Subsidized and conventional
Use of criminal background checks may violate fair housing laws
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8. HUD Guidance (cont.) Disparate impact Burden on landlord to show
When use of criminal history to deny housing negatively impacts certain races more than others
Burden on landlord to show
Necessary to use criminal background checks to achieve non-discriminatory business objective; and
No less discriminatory alternative
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9. HUD Guidance (cont.) Arrest records Prior convictions
Should not be used as a basis for denying applicants
Not evidence that applicant engaged in criminal activity
Prior convictions
Evidence that applicant engaged in criminal activity
However, criminal standards must be narrowly tailored
No blanket exclusions (e.g., any conviction; any felony)
Exception: convictions for the illegal manufacture or distribution of controlled substances (exclusion from coverage under the FHA)
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10. HUD Guidance (cont.) Narrowly tailored standards must consider:
Nature & severity of crime
Length of time since conviction
Individualized assessment of risk to persons and/or property
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11. HUD Guidance (cont.) Less discriminatory alternative Credit standards
Rental history standards
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12. HUD Guidance (cont.)
Evidence that screening standards actually accomplish the business objective
Crime at the property before/after adoption of criminal standards?
Police calls to service for certain crimes before/after adoption of criminal standards?
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13. Recommendations: Criminal Records & Applicant Screening
FHA Safe Harbor
Conviction for manufacture or distribution of controlled substance
Other HUD mandates and permissive denials
Likely requires individualized assessment
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14. Recommendations: Criminal Records & Applicant Screening (cont.)
Avoid criteria that deny for less serious crimes
Infractions
Misdemeanors
Determine the types of serious crimes that will be considered
Serious felonies against people/property?
Avoid white collar crimes, motor vehicle crimes, etc.
Determine the length of time that will be considered
Individual analysis
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15. Recommendations: Criminal Records & Applicant Screening (cont.)
Check rental history
Consider other qualifying criteria before consideration of criminal criteria
Evaluation under HUD Guidance
Evaluation to be done by “point person(s)” at upper management level
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16. Thank You! Contact us at: Phone: 800-338-6039 Fax: 800-840-0357
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