HUD Strongly Limits Criminal Histories to Screen Prospective Residents, Part 1
Resident screening, of course, is an essential requirement of professional apartment management. We have a duty to our owners and our supervisors to do whatever the law allows us to do to make sure that prospective residents will be good neighbors to our other residents, and will pay rents as required by their leases.
Historically, the best way to accomplish these goals is to obtain copies of prospects’ credit histories – which can give us confidence that the new resident will be able to pay rents during the lease term – and get their criminal histories, which help us to forecast whether the new resident will observe the behavioral obligations that are required of all residents.
On April fourth of this year, HUD’s general counsel, a person named Helen Kanovsky, issued a document titled “Application of Fair Housing Standards to the Use of Criminal Records.” She taught all of us a lesson about the limitations of criminal records in screening apartment prospects.
Here’s what she wrote: The use of a screening process that automatically disqualifies applicants who have a criminal history violates the Fair Housing Act. Why? Because the process can have a discriminatory impact upon members of protected classes. The reason? The document finds that members of certain protected classes have criminal histories that are disproportionately high compared with their populations. Consequently, criminal background checks negatively impact minorities, even if landlords have no intention to discriminate, because they have a “disparate impact” upon protected class members, and are therefore discriminatory and violate the Fair Housing Act.
This lesson is so important that I want to say it again: Arrest records that show up in criminal histories cannot be used to disqualify apartment prospects. Why? Because an arrest is not a criminal conviction. Disqualifying apartment prospects because of every conviction in a criminal history is illegal, because members of protected classes can have criminal histories that are disproportionate – disproportionately high – compared to their populations.