1. Fair Housing and Tenant Screening

2. Introduction Who We Are
Mark Esparza - Equal Opportunity Coordinator,
Pinellas County Office of Human Rights
400 South Fort Harrison Avenue, 5th floor,
Clearwater, Florida ,

3. Pinellas County Office of Human Rights
Investigate claims of discrimination in employment, housing and public accommodations
Provide anti-discrimination training for County Depts.
Undertake internal investigations for employees
Provide accommodations for the Courthouse
Wage Theft claims

4. Federal Partners for Investigations
Investigate Employment discrimination complaints on behalf of the EEOC; Certified agency able to carry out their work; (“Dual-filed”) (“FEPA”)
Investigate Housing discrimination complaints on behalf of HUD; Certified agency able to carry out their work for them; (“FHAP”)
Investigate claims of Public Accommodations discrimination; (Chapter 70)

5. AGENDA
Basic Fair Housing provisions, with screening suggestions
Disability provisions of the FHA, with screening suggestions
Disparate Impact and use of criminal history background in screening of applicants

6. Protected Categories Race Color National Origin Religion Sex/Gender
1968 FHA Original categories:
Race
Color
National Origin
Religion
Sex/Gender

7. Title VIII Amendment in 1988
Added:
Disability
Familial Status (presence of children under 18, pregnant women and those adopting or with written custody)
In 2008, under local law: Sexual Orientation
In 2012, under local law: Gender Identity

8. 1988 & 1995 Amendments Housing For Older Persons Act of 1995;
New Design and Construction Requirements (1988-effective March 1991);

9. The Fair Housing Act What is Prohibited?

10. If due to a membership in a covered category, it is unlawful to:
Refuse to rent, sell or negotiate a housing transaction;
Set different terms, conditions for sale/rental/tenancy of a dwelling;
Engage in discriminatory advertising;
Provide inaccurate information about availability of units;
Harass, coerce, intimidate, or interfere with someone for exercising their fair housing rights or because of their membership in a group;

11. Fair Housing Act also covers:
Denial of a Disability accommodation or modification request;
Blockbusting;
Residential real estate loans and lending: Banks;
Residential property insurance terms and conditions;
Brokerage services: For those in the business
Access to tools, MLS/market areas/Disobey discriminatory orders;

12. 55+ Housing: 1995 Housing for Older Persons Act
80% rule: At least 80% of the occupied units must be occupied by at least one person 55 years of age or older;
Publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons 55 years of age or older;
Verification of 55+ occupancy through reliable documentation;
--Should collect documents indicating age;

13. Requirements for New Buildings (March 1991:
The public and common use areas are readily accessible;
All doors are sufficiently wide;
All premises contain: An accessible route into and through the dwelling unit;
Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
Reinforcements in bathroom walls for later installation of grab bars around the toilet, tub, shower, stall and shower seat;
usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space

14. The Fair Housing Act gives two
“Request Powers” for those with disabilities:
Reasonable Modification request: Refers to changes in the physical environment;
Reasonable Accommodation request: Refers to changes in the rules, practices and procedures;

15. Overall advice:
Be consistent in your screening procedures, databases, lease terms, past rental history thresholds;
Use same screening methods, applications and timing;
Use same formulas for debt analysis/security deposits;
When in doubt, give out an application;
Use same procedures for adding persons to lease;
If using recommendations, follow through;
State your rental criteria upfront, in writing;

16. You can ask about: Prior rental history/evictions;
Criminal background;
Employment/ability to pay;
Reason for moving;
Any other questions about their ability to meet the rent and their lease obligations;

17. Disability considerations:
(c) It shall be unlawful to make an inquiry to determine whether an applicant for a dwelling…or any person associated with that person, has a handicap or to make inquiry as to the nature or severity of a handicap of such a person. However, this does not prohibit the following inquiries, provided they are made of all applicants, whether or not they have handicaps:
(1) Inquiry into an applicant's ability to meet the requirements of ownership or tenancy;

18. (2) Inquiry to determine whether an applicant is qualified for a dwelling available only to persons with handicaps or to persons with a particular type of handicap;
(3) Inquiry to determine whether an applicant for a dwelling is qualified for a priority available to persons with handicaps or to persons with a particular type of handicap;

19. (4) Inquiring whether an applicant for a dwelling is a current illegal abuser or addict of a controlled substance;
(5) Inquiring whether an applicant has been convicted of the illegal manufacture or distribution of a controlled substance.

20. (d) Nothing in this subpart requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

21. Assistance Animals Difference between ADA v. FHA support animals;
Landlords are allowed to assess the need for the animal; (Disability + Nexus)
No restrictions on size or breed;
No fees, charges or other deposits allowed of support animals;
Can go where the person with the disability goes;
Needs to be Licensed/Vaccinated per county Ordinance;
Animals needs to comply with rules (barking, curbing, biting others)

22. Providing Housing for Individuals with Criminal Records
Welcome!
Who’s in the room
Workshop Objectives
Here are the workshop objectives
What are participant’s wanting to learn from today’s workshop

23. Difference between Disparate Treatment and Disparate Impact.
--Disparate Treatment is intentional (99% of all cases) ; V.
--Disparate Impact is NOT intentional, but disproportionately impacts a particular group (“Unicorn sighting”)

24. Discriminatory Impact or Effect
“A neutral practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons… because of race, color, religion, sex, handicap, familial status, or national origin.”
Provide example of discriminatory effect:
Lenders require borrowers to prove a certain length of employment history before approving a home loan. This a neutral policy on its face.
However, this may have discriminatory effect on people with disabilities whose full time employment history may be limited, although the individual may have enough income to cover the loan payments.

25. Examples of Disparate Impact
Employment:
UPS Driver;
100 Pound lifting requirement for firefighters;
Employment exams;
Housing:
Charging rent by # of occupants;
Full-time work requirements;
Criminal background;

26. History and background
Griggs v. Duke Power Co., 401 U.S. 424 (1971), was argued before the Supreme Court and decided on March 8, It is generally considered the first case of its type.
Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. ___ (2015), was a Supreme Court which ruled that impact claims are cognizable under the Fair Housing Act.

27. Duke Power Company was a public utility corporation that was involved in the generation and sale of electric power to the general public in North Carolina and South Carolina.
In the 1950s Duke Power's Dan River plant had a policy that blacks were allowed to work only in its Labor department, which constituted the lowest-paying positions in the company.
Later, when anti-discrimination laws were enacted, the company instituted an “inside transfer” policy, which required that all employees who wanted to work in higher positions, to achieve a minimum score on two aptitude tests. They were also required to provide proof that they had received a high school diploma.

28. While this may not have seemed like a discriminatory practice, Griggs challenged it, claiming that the policy discriminated against black employees in particular, as many blacks of the time did not graduate from high school, and that the tests required by the company did not test aptitude for the specific jobs. Griggs complained that the company’s policies violated Title VII of the 1964 Civil Rights Act.
The question for the Supreme Court then became whether or not Duke’s policy did, in fact, discriminate against a protected class of people, even if unintentional.

29. The Court ruled that yes, Duke had, in fact, committed discrimination
The Court ruled that yes, Duke had, in fact, committed discrimination. Specifically, the Court held that Duke’s standardized testing requirement worked to prevent a significant number of black employees from either being hired for, or advancing to, the company’s higher-paying jobs.
The Court determined that neither the high school completion requirement, nor the two aptitude test requirement, were intended to gauge an employee’s ability to learn or to perform a specific function within the company.

30. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate to discriminate on the basis of racial or other impermissible classification.
The Act proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude blacks (or any impacted category set forth by Congress) cannot be shown to be related to job performance, the practice is prohibited.

31. THE ANALYSIS:
First, a plaintiff must make out a prima facie case, drawing an explicit connection between a policy or practice and the disparate impact/statistical disparity. (“statistical impact”)
Second, a defendant must have the opportunity to prove that the policy is necessary to achieve a valid interest. (“Business related”)
Third, if shown that the policy has a valid interest, the plaintiff must then show there exists a lesser discriminatory alternative to achieve same goal;

32. Texas Dept. of Housing and Community Affairs v
Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. ___ (2015): The Federal Government provides tax credits to build low income housing, which are administered by state agencies.
In Texas, the state’s Department of Housing and Community Affairs (the Department) distributes these credits directly to developers based on a number of criteria articulated in federal and state statutes;
From 1999 to 2008, the Department approved tax credits for 49.7% of proposed non-elderly, low-income housing developments in areas where whites made up less than 10% of the population.
In Dallas, 92.29% of all housing units built using low-income tax credits were located in majority-minority census tracts.

33.  ICP claimed that TDHCA disproportionately granted tax credits to developments within minority neighborhoods and denied the credits to developments within Caucasian neighborhoods. ICP claimed this practice led to a concentration of low-income housing in minority neighborhoods, which perpetuated segregation in violation of the Fair Housing Act.

34. Why Is A Criminal History Considered A Possible Discriminatory Impact?
Mass Incarceration, Visualized
NRC report The Growth of Incarceration in the United States: Exploring Causes and Consequences

35. Mass Incarceration The Bureau of Justice Statistics found:
Imprisonment rates actually fell from 1960s through early ‘70s, even as violent crime increased
From the mid-’70s to the late ‘80s, both imprisonment rates and violent-crime rates rose
1971 and 1973 – President Nixon declared a War on Drugs and the DEA was created
1986 – Mandatory minimum drug sentences were included in legislation
From early ‘90s to 2011, violent crime rates fell while imprisonment rates increased
1994 – Clinton signs federal “Three Strikes” law
Derek Neal, an economist from the University of Chicago found:
from 1985 to 2000, the likelihood of a long prison sentence nearly doubled for drug possession, tripled for drug trafficking, and quintupled for non-aggravated assault
Source: The Atlantic – The Black Family in the Age of Mass Incarceration by Ta-Nehisi Coates

36. Mass Incarceration
Why does the rise of non-violent crimes matter? The rise of non-violent crimes, particularly drug offenses, has a large impact on communities of color.
The Sentencing Project gathered data from the Bureau of Justice Statistics for Incarceration Rates based on the US population from : this chart show’s the likelihood of imprisonment for individuals born in (so today are in adult age or coming age of adults)
Not listed, but we know there’s an alarming disproportionality for Native Americans
We were not able to find any updated information, but we know that women of color, specifically black and Latina women, are being incarcerated at higher rates than what is represented here
Based on data, we know women are more likely to be convicted of a drug offense, and black and Latina women are more likely to be involved in the criminal justice system for a drug offense

37. Racial Disproportionality in US and WA
United States (2010)
% of US Population
Incarceration Rate
(per 100,000)
Disproportionality ratio (compared to White)
White
64%
450
n/a
Latino
16%
831
Black
13%
2,306
American Indian/Alaska Native
0.9%
895
Washington State (2005)
% of US Population
Incarceration Rate
(per 100,000)
Disproportionality ratio (compared to White)
White
73%
393
n/a
Latino
11%
601
Black 4%
2,372
American Indian/Alaska Native 2%
1,427
READ SLIDE
Prison Policy Initiative
Nationally, according to the U.S. Census, Blacks are incarcerated five times more than Whites are, and Hispanics are nearly twice as likely to be incarcerated as Whites.
Washington State:
Source: Prison Policy Initiative “Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration by Race/Ethnicity” (2010)

38. HUD Guidance
The Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions
How does Fair Housing Act apply to the use of criminal records in housing screening?
Issued on April 4, Read title (We can provide electronic copies of the Guidance and Resolution at request)
HUD Guidance developed after the US Supreme Court decision on June 25, (Texas Dept of Housing and Community Affairs v. The Inclusive Communities Project, Inc.) which affirm HUD’s position that disparate impact theory is covered under the FHA and uses a burden shifting analysis to find less discriminatory alternatives
Fair Housing comes into play because:
100 million US adults or nearly 1/3 of the population have a criminal record of some sort
As seen in the previous charts and slides, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population
When these individuals are released from prison and jails, their ability to access safe, secure and affordable housing is critical to their successful reentry
Criminal record alone is not a protected class, but the use of criminal records in screening can violate the FHA if, without justification, the burden falls on applicants of one race, national origin or other protected class
The only exceptions:
Fair Housing Act does not protect those who were convicted for drug manufacturing or distribution of a controlled substance (doesn’t apply to arrests that didn’t lead to convictions)
If you receive federal funds: Applicant has been convicted of drug-related criminal activity for manufacture or production of methamphetamine on the premises of federally assisted funding –or- applicant is subject to a lifetime sex offender registration requirement

40. What does the HUD guidance state?
Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population.
While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based denials violate the Act if, without justification, their burden falls more often on one race or national origin over another;

41. National statistics may be used when state or local statistics are not readily available and there is no reason to believe they would differ markedly from the national statistics.
A policy or practice of excluding individuals because of one or more prior arrests (without any conviction) cannot satisfy its burden of showing that such policy is necessary to achieve a substantial, legitimate, nondiscriminatory interest

42. A housing provider that imposes a blanket prohibition on any person with any conviction record – no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden.
A housing provider with a more tailored policy that excludes individuals with only certain types of convictions must still prove that its policy is necessary to serve a “substantial, legitimate, nondiscriminatory interest.” To do this, a housing provider must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.

43. Section 807(b)(4) of the Fair Housing Act provides that the 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).”
Accordingly, a housing provider will not be liable under the Act, regardless of any discriminatory effect that may result from such a policy.

44. Step 1: Statistical showing of disparate impact:
Policy or practice that restricts access to housing on the basis of criminal records may have a disparate impact on individuals of a particular race, national origin, or other protected class.
Identify the rule, policy or practice causing the disparate impact, and do the statistical analysis;
STEP ONE
Burden is on claimant to show the neutral or policy has a discriminatory effect by using local or national data which we discussed in the previous slides
As pointed out earlier, this data exists – we know that criminal record screening has a disparate impact on blacks, Latinos and Native Americans
Example: Neutral policy such as “no felony record”, on its face may not be discriminatory, but what are the impacts? This neutral policy likely has a discriminatory impact on communities of color, particularly blacks, Latinos, and Native Americans
Does the policy or practice create housing opportunities or barriers to people with conviction records?

45. Step 2: Justification of the Rule, Policy or practice
Burden shifts to housing provider to prove the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest
Is the policy or practice a determinant whether an applicant would be a good tenant?
STEP TWO
Burden on the housing provider to determine:
Is the policy or practice necessary?
Does the policy achieve a substantial, legitimate, non- discriminatory interest?
Does the policy or practice determine whether a person will be a good tenant?
There’s a lot of data that shows that just because an individual has a criminal record does not determine whether that person will be a good tenant

46. Legitimate Business Needs
Housing providers want tenants who:
Pay bills on time
Maintain property
Respect other residents and staff
Comply with any lease policies
Goal: Provide safe and affordable housing by casting the widest net possible to screen in applicants
What is are legitimate business needs?
As a housing provider, you are looking for tenants who:
Pay bills on time
Maintain property
Respect other residents and staff
Comply with any lease policies
As housing providers, your goal is to provide safe and affordable housing by casting the widest net possible to screen in applicants as qualified tenants

47. Step 3: Lesser discriminatory alternatives
If disparate impact, and if landlord has a legitimate business need, plaintiff can still win by showing there exists a lesser discriminatory alternative to achieving goals: Landlords must consider less discriminatory alternatives:
Individualized assessment (case-by-case analysis)
Length of time since conviction and/or release
Age of the individual
Tenant history
Rehabilitation efforts
Nature and severity of crime
STEP THREE: To mitigate discriminatory effects in screening applicants with a criminal record, it is the responsibility of landlords to consider less discriminatory alternatives which include:
Having a process for conducting an individualized assessment
In the assessments, you might consider:
Age of the individual at the time of the conduct
Maintained good tenant history before and after conviction or conduct
Evidence of rehabilitation efforts
Consider the criminal record after individual’s financial and other qualifications met (only requirement to screen is for sex offense and conviction of methamphetamine on federal funding premises)
Instead of having folks prove their rehabilitation which causes a lot of issues, think why does this crime pose more of a risk? What is it about this crime that likely makes the applicant not a good tenant? What is the risk based on? General stereotypes or reliable evidence? Then what does the applicant need to do to ensure there is no risk?
The main objective is to reduce subjectivity by conducting an individualized assessment. It requires more time to do a case-by-case analysis, but if you are seeking qualified candidates, it’s worth the time to ensure you are not discriminating against protected classes.

48. In essence, the Guidance suggests a balancing test that includes the:
the nature of the conviction,
length of time since the conviction,
the behavior of the person since the conviction;
--Don’t use a sledge hammer to kill a fly--

49. In Summary
Consider not screening or de-emphasizing criminal records at all;
No bans based on arrests and/or no blanket bans;
Consider criminal record after all other qualifications are met;
Assess the criminal records on a case-by-case basis;
Centralize screening practices to ensure policy is applied equally and consistently, and monitor the impacts;
Narrowly tailor the criminal screening reports to information that would determine legitimate business interests;
READ SLIDE

50. Questions?
Mark Esparza, Pinellas County Office of Human Rights

51. THANK YOU FOR YOUR
TIME AND ATTENTION