1. Do We Need to Update Our Resident Screening Policies & Procedures?
Recent HUD guidance indicates that the answer is yes.
Using the Law to Fight Poverty in Ohio

2. Why is this a crucial issue?
Stable and affordable housing is one of the most basic human needs and it’s a key component of being able to successfully rebuild after incarceration.
Without stable housing, returning citizens face barriers to reuniting with their families and are twice as likely to become involved with the criminal justice system again than those living in stable housing.

3. Why is this important in Ohio?
As many as one in six Ohioans have a misdemeanor or felony conviction. That means that one in six Ohioans face barriers to safe, stable housing due to a criminal record.
The number of people unable to obtain housing is greater when arrest records are considered – even when their arrests did not result in prosecution.
Public Housing Authorities (PHAs) are critical to addressing this key need and can make a meaningful impact on the lives of individuals with records and their families.

4. This is a fair housing issue.
The right to be free from discrimination in housing is a right that we all share.
We also share in the duty to make this right a reality for all.
The Ohio Poverty Law Center is committed to making sure that every person has the right to fair housing opportunities and the protections afforded by federal and state fair housing laws.

5. Disclaimer
This information is provided for informational purposes only by the Ohio Poverty Law Center ("OPLC"). OPLC does not warrant this information for any purpose. This presentation shall not constitute legal advice, nor does it create an attorney-client relationship. The laws referenced in this presentation may have changed or could be affected by case law developments. Do not rely on this presentation or your interpretation of it for any purpose.  If you have a legal question you should consult with an attorney.  We suggest that you contact your local Legal Aid Society if you cannot afford an attorney to assist you.  You can get contact information for Ohio legal aid organizations at by calling (800)  

6. Screening Policies Matter
“The goal of the housing choice voucher program is to provide ‘decent, safe and sanitary’ housing at an affordable cost to low-income families.” (HUD Guidebook 10-1)
Among the role of the PHA is “Complying with fair housing and equal opportunity requirements, HUD regulations and requirements, the consolidated ACC, HUD- approved applications for program funding, the PHA’s administrative plan, and federal, state, and local laws.” (HUD Guidebook 1-14)
Decent
Safe
Sanitary
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7. Using the Law to Fight Poverty in Ohio
Screening Policies Protect Residents, Property, and Serve the Public Interest
Ensuring Safety
Protecting
Property
Screening policies serve an important function for the public and help people needing safe, affordable housing.
“Ensuring resident safety and protecting property are often considered to be among the fundamental responsibilities of a housing provider, and courts may consider such interests to be both substantial and legitimate, assuming they are actual and legitimate.”
April 4, 2016 Office of General Counsel Guidance on Application Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate Transactions (“HUD April 2016 Guidance”)
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8. Screening Policies Also Matter to People with Criminal Records
As many as one in six Ohioans—or million people—have a misdemeanor or felony conviction.
See Ohio Justice & Policy Center
People with criminal convictions face numerous barriers to accessing stable housing.
Without stable housing, individuals are twice as likely to recidivate (reoffend).
1 in 6
Back to HUD Guidance
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9. Family Reunification
“More than 70% of those leaving prison indicated that family is an important factor in keeping them out of prison, and up to 82% of people leaving prison or jail expect to live with or get help from their families.”
Tesfai, Afomeia and Kim Gilhuly, The Long Road Home: Decreasing Barriers to Public Housing for People with Criminal Records, Human Impact Partners. (May 2016) available at HA-HIA-Final-Report.pdf. (emphasis added)
“Strong family connection acts as a protective factor to reduce recidivism. Studies show that reuniting with families after incarceration improves employment status, substance abuse avoidance, and decreases post- release depression.”
Id. Citing Makarios M, Steiner B, Travis LF. Examining the Predictors of Recidivism Among Men and Women Released from Prison in Ohio. Criminal Justice Behavior ;37(12): DOI: /
Family Reunification
Improve Employment Status
Avoid Substance Abuse
Reduce Depression
Reduce Recidivism
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10. HUD Guidance Confirms that Criminal Records Screening Policies and Practices Must Comply with Fair Housing Laws
“A housing provider must, however, be able to prove through reliable evidence that its policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property.” (HUD April Guidance)
See 24 C.F.R. § (b)(2)
Screening
Result
Housing decisions based on Criminal Convictions
Protection of Residents and/or Property
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11. Using the Law to Fight Poverty in Ohio
How could a criminal records screening policy or practice violate Fair Housing law?
“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. Under this standard, a facially-neutral policy or practice that has a discriminatory effect violates the Act if it is not supported by a legally sufficient justification. Thus, where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect.” (emphasis added)
HUD April 2016 Guidance at 2.
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12. Using the Law to Fight Poverty in Ohio
Fair housing analysis – disparate impact resulting from criminal records screening policies and practices when unjustified by sufficient evidence.
“The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin or other protected characteristics. Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification. Thus, a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act.” HUD April 2016 Guidance at 10.(emphasis added)
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13. HUD analysis of disparate impact
From HUD April 2016 Guidance:
“Nationally, racial and ethnic minorities face disproportionately high rates of arrest and incarceration.”
“African Americans were incarcerated at a rate nearly three times their proportion of the general population. Hispanics were similarly incarcerated at a rate disproportionate to their share of the general population . . .”
Minority Share of Population
Minority Arrests and Incarceration
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14. Why does recent HUD guidance require new or revised screening policies or procedures?
April 4, 2016 Guidance from HUD General Counsel's Office
Fair Housing –
Disparate Impact Analysis (see next)
May not discriminate in sale, rental, or financing of dwellings and other housing-related activities on the basis of race, national origin
Criminal history-based restrictions— without justification—have a negative impact on renters or applicants of one race or national origin over another because of the disproportionate rate of arrests, convictions, and incarceration.
Nearly 1 in 3 Americans (100 million) have some type of criminal record
African-Americans and Latinos are arrested, convicted, and incarcerated at a disproportionate rate when their population share is compared to that of other Americans
Back to HUD Guidance
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15. Using the Law to Fight Poverty in Ohio
How HUD and Courts Analyze Whether a Policy or Practice has a Discriminatory Impact or Effect*
* See Texas Dept. of Hous. And Cmty. Affairs v. Inclusive Communities Project, Inc. 576 U.S. ___ (2015).
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16. Examples of Disparate Impact in Other Contexts
Insurance redlining
Disparate impact caused by seemingly neutral underwriting guidelines (age and value of homes) that resulted in denial of insurance in zip codes with a majority of African–American homeowners. See Toledo Fair Housing Center et al. v. Nationwide Mutual Insurance Company et al., No. CI , Lucas County Court of Common Pleas, August 11, 1997
Employment
Cited in HUD Guidance: See U.S. Equal Emp’t Opportunity Comm’n, EEOC Enforcement Guidance, Number , 12 (Apr. 25, 2012), available at see also Gregory v. Litton Systems, Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970) (holding that defendant employer’s policy of excluding from employment persons with arrests without convictions unlawfully discriminated against African American applicants in violation of Title VII because there “was no evidence to support a claim that persons who have suffered no criminal convictions but have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than other employees,” such that “information concerning a … record of arrests without conviction, is irrelevant to [an applicant’s] suitability or qualification for employment”), aff’d, 472 F.2d 631 (9th Cir. 1972).
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17. Areas where neutral screening policies or procedures may have a discriminatory effect on protected classes under the Fair Housing Act:
Using arrests alone to prove criminal activity by the applicant
Not conducting individualized reviews of applications or considering mitigating evidence
Blanket bans on all or some criminal convictions (except manufacturing methamphetamine and sex offenses)
Use of categories of criminal activity that are not mandatory and cause a disparate effect on the basis of race or national origin
Lookback periods with no time limits or unreasonable time limits
Issue Areas
Click on the boxes for more information!
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18. Due Process Rights & the Opportunity to Present Mitigating Circumstances
Notification
Opportunity to Dispute
Potential Denial
Federal law requires that PHAs provide applicants with notification and the opportunity to dispute the accuracy and relevance of a criminal record before admission or assistance is denied on the basis of the record.
Applicants should be given the chance to present mitigating circumstances.
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19. Individualized Review – Considering Mitigating Circumstances
Mitigating Circumstances refer to materials that may lessen the effects of a person's criminal conviction(s). These may explain the person's circumstances at the time of the crime or steps taken during or after the sentence to contribute to the individual's rehabilitation.
Applicants should be given the opportunity to submit information about mitigating circumstances before a denial takes place.
Copy of Applicant's Criminal Record
Enrollment or Completion of Drug/Alcohol/Anger Program(s)
Resume
Letters of Recommendation
Brief Personal Statement
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20. Using the Law to Fight Poverty in Ohio
HUD on Arrests – Case law and Bureau of Justice stats do not support exclusions based on arrests
HUD 2015 Guidance at p. 3:
“HUD has reviewed relevant case law and determined that the fact that an individual was arrested is not evidence that he or she has engaged in criminal activity. Accordingly, the fact that there has been an arrest for a crime is not a basis for the requisite determination that the relevant individual engaged in criminal activity warranting denial of admission, termination of assistance, or eviction.”
“An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. In many cases, arrests do not result in criminal charges, and even where they do, such charges can be and often are dismissed or the person is not convicted of the crime alleged. In fact, in the 75 largest counties in the country, approximately one-third of felony arrests did not result in conviction, with about one-quarter of all cases ending in dismissal.”
Citing Brian A. Reaves, Bureau of Justice Statistics, U.S. Dep’t of Justice, Felony Defendants in Large Urban Counties, 2009, at 22, Table 21 (2013),
Back to Issue Areas
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21. Arrests are NOT Evidence of Criminality
HUD 2015 Guidance :
“An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. In many cases, arrests do not result in criminal charges, and even where they do, such charges can be and often are dismissed or the person is not convicted of the crime alleged. In fact, in the 75 largest counties in the country, approximately one-third of felony arrests did not result in conviction, with about one-quarter of all cases ending in dismissal.”
Citing Brian A. Reaves, Bureau of Justice Statistics, U.S. Dep’t of Justice, Felony Defendants in Large Urban Counties, 2009, at 22, Table 21 (2013),
“Moreover, arrest records are often inaccurate (e.g., by failing to indicate whether the individual was prosecuted, convicted, or acquitted), such that reliance on arrests not resulting in conviction as the basis for denying applicants or terminating the assistance or tenancy of a household member may result in unwarranted denials of admission to or eviction from federally subsidized housing.”
See, e.g., U.S. Dep’t of Justice, The Attorney General’s Report on Criminal History Background Checks at 3, 17 (June 2006),
Back to Issue Areas
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22. Using the Law to Fight Poverty in Ohio
Concusion: An Arrest Alone is NOT Evidence of Criminal Activity that Can Support an Adverse Admission, Termination, or Eviction Decision
"The fact that there has been an arrest for a crime is not a basis for the requisite determination that the relevant individual engaged in criminal activity warranting denial of an admission, termination of assistance, or eviction.” HUD Guidance at 3 (emphasis added).
Arrest
Conviction
Back to Issue Areas
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23. Lookback Periods Should Be Reasonable
What is a reasonable time before the admission decision? HUD does not define this. Consider the following (follow the link in the graphic to When Discretion Means Denial from the Sargent Shriver National Center on Poverty Law):
One that is finite
One that is not overly-long
Where relevance decreases with time
Back to Issue Areas
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24. "One Strike" Policies other than Mandatory Bars Will Likely Violate Fair Housing
PHAs have the discretion to decide whether or not to deny admission to an applicant with certain types of criminal history
But only two circumstances for permanent bars:
Sex-offender offenses
24 CFR (a)(2)(i)
Methamphetamine manufacturing on federally assisted properties
24 CFR (a)(1)(ii)(C)
Only Two Permanent Bars for Applicants with Criminal Records:
Sex offenders
Methamphetamine production on federally assisted property
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25. Fair Housing Analysis applies to all housing-related transactions
Applies to all covered by Fair Housing law
Housing providers
Real estate-related transactions
Applies to all housing-related transactions, including lease renewals
Parties should look to any housing-related transactions, e.g., home loans
Fixing policies alone does not take away responsibility for intentional discrimination if it occurs – e.g., applying a screening policy more harshly to a comparable person in a protected class
Back to HUD Guidance
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26. DOs
DO NOTs
Create tailored criminal history-based policies and procedures
Create arbitrary or overly-broad criminal history-based policies/procedures
Be sure to have clear, specific reasoning for the criminal history-based policy/ procedure that can be supported by evidence
Maintain a policy/procedure, or any portion thereof, that does not serve a substantial, legitimate, nondiscriminatory interest
Exclude individuals only based on criminal convictions that present a demonstrable risk to resident safety or property
Create exclusions based on arrest records alone
Consider the nature and severity of an individual’s conviction before excluding the individual based on the conviction
Create a blanket exclusion of any person with any conviction record
Consider the amount of time that has passed since the criminal conduct occurred
Provide inconsistent explanations for the denial of a housing application
Consider criminal history uniformly, regardless of an individual’s inclusion in a protected class
Use criminal history as a pretext for unequal treatment of individuals of a protected class.

27. DOs
DO NOTs
Treat all applicants for housing equally
Use comparable criminal history differently for individuals of protected classes
Conduct individualized assessments that take into account mitigating factors, such as facts and circumstances surrounding the criminal conduct, age at the time of the conduct, evidence of good tenancy before / after conduct, and rehabilitative efforts
Make exceptions to a policy or procedure for some individuals but not make the same exception for another individual based on the individual’s inclusion in a protected class
Include a blanket prohibition against all individuals convicted of drug possession

28. Using the Law to Fight Poverty in Ohio
Resources
For more information:
HUD Guidance—April 4, 2016: Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions, available at uidAppFHAStandCR.pdf
Fair Housing Act: Criminal History-Based Practices and Policies, National Association of Realtors Legal Affairs Department, April 2016, available at history-based-practices-and-policies
Back to HUD Guidance
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