1. Landlord’s can’t just say “no felons…”
Disparate Impact
Landlord’s can’t just say “no felons…”

2. How use of criminal records in housing approval decisions may violate the Fair Housing Act
African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the population
A policy that restricts housing based on [having any] criminal history has a disparate impact on persons of a certain race or ethnic background thus violates the Fair Housing Act

3. Recent legal rulings…
June 25, 2015: the Supreme Court ruled that “disparate impact claims are cognizable under the Fair Housing Act”
Cognizable means the court has jurisdiction
April 4, 2016: HUD Office of General Counsel issued Guidance on “application of Fair Housing Act standards to the use of criminal records by providers of housing…
Established 3 steps to analyze discriminatory effect

4. 3 Step Analysis
Evaluating Whether the Criminal History Policy or Practice Has a Discriminatory Effect
Evaluating Whether the Challenged Policy or Practice is Necessary to Achieve a Substantial, Legitimate, Nondiscriminatory Interest
Evaluating Whether There Is a Less Discriminatory Alternative

5. 1. Discriminatory Effect
Disproportion of criminal histories exists:
African Americans are 12% of the US population but are 36% of prison population
Hispanics are 17% of the US population but are 22% of the prison population
Whites are 62% of the US population but are 34% of the prison population
A policy of “No Felony History” will effect more African Americans and Hispanics than Whites

6. 2. Nondiscriminatory Interest
Is the policy or practice necessary to achieve a substantial, legitimate nondiscriminatory interest of the provider?
Arrests, without convictions, may NOT be considered

7. Things that must be considered…
Does the policy or practice serve a substantial, legitimate, nondiscriminatory interest of the housing provider?
What was the criminal offense?
Violent or non-violent?
Drugs-manufacture/distribution?
Sex offense-lifetime registration required?
How long ago was it?
What is their rental recent history?
Each determination should be case specific and fact specific
Case-by-case basis

8. 3. Less Discriminatory Alternative
Consideration of circumstances that resulted in the criminal record
Everyone in the car was charged…
I took a plea to settle the case…
Age at the time of offense
Evidence of good tenant history before or after the conviction
Evidence of rehabilitation efforts

9. Exceptions
Persons convicted of manufacturing or distribution of drugs are not protected from disparate impact by the Fair Housing Act
Persons subject to a lifetime sex offender registry requirement are not eligible for federally subsidized housing
Includes all Public Housing, Section 8 - Project Based and HCV, 202, 811, 221, 236, Mod Rehab, others
So far there is no guidance on how, or if, disparate impact applies to other housing providers, programs or non-lifetime registered sex offenders

10. DESCENT
SAFE &
SANITARY

11. Questions?
Discussion