mlkBy Kate Scott, Fair Housing Director

This week marked the 48th anniversary of the passage of the Fair Housing Act. After a years long, hard fought battle, Congress passed the Act on April 11, 1968, just seven days after the assassination of Dr. Martin Luther King, Jr. Though the Fair Housing Act offers some of the strongest protections of all U.S. civil rights laws, legacies of institutionalized discrimination and the ways in which it manifests itself in ongoing policies and practices dictate that the struggle to actualize fair housing will be long and intense as well.

Guidance released by the U.S. Department of Housing and Urban Development (HUD) earlier this month provides a critically important update that will bring us closer to winning the fight. In recent decades, mass incarceration has led to the United States having the largest prison population in the world. This trend has affected some groups drastically more than others; specifically, according to the guidance, “African Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their share of the general population”. Last week, HUD’s General Counsel issued a letter to all housing providers covered by the Fair Housing Act about the use of criminal records in housing related decisions given the racially disparate impact of mass incarceration nationwide.


You can view the full guidance on HUD’s website, but here is a summary of key points:

  • Recently, the Supreme Court upheld that Fair Housing Act claims can be based on a disparate impact theory of liability. That is, even when a housing provider has no intent to discriminate, a housing policy or practice that has an unjustified discriminatory effect may violate the Fair Housing Act. As noted, the U.S. criminal legal system affects African Americans and Hispanics disproportionately, meaning these groups are more likely than whites to have a criminal record. Therefore, housing providers that use information about renters’ criminal backgrounds may violate the Fair Housing Act if there is no legitimate, nondiscriminatory reason for doing so (or if there is a less discriminatory alternative available).
  • Excluding tenants on the basis of an arrest record alone is not a legitimate means of protecting resident safety and/or property. Therefore, it is unacceptable to use arrest records on their own in making adverse housing decisions like rejecting an application or moving to evict a current tenant. Because African Americans and Hispanics are more likely to have an arrest record than whites, a policy that relies on arrest records alone to make adverse housing decisions is a likely violation of the Fair Housing Act.
  • Similarly, housing providers that use conviction records to exclude people from housing must be able to prove that the use of such records is necessary for substantial, legitimate, nondiscriminatory reasons. Policies or practices that don’t take factors like the nature and severity of the conviction or the recency of the conduct will likely not meet this standard. For example, a blanket ban applied to all prospective tenants with a felony conviction on their record may violate the Fair Housing Act based on a disparate impact theory of liability.
  • To comply with the Fair Housing Act, the guidance urges housing providers to consider individualized factors like: “the facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the conviction or conduct; and evidence of rehabilitation efforts” in addition to criminal records when making adverse housing decisions.
  • The Fair Housing Act provides a statutory exemption from disparate impact liability for exclusion because of illegal manufacture or distribution of a controlled substance. The disparate impact liability described above cannot be applied to exclusions because of those convictions. Note that the exemption does not apply to decisions based solely on arrests for those crimes, and that it does not apply to all drug-related convictions (just manufacture or distribution).
  • A housing provider may never intentionally discriminate in their use of criminal history information against individuals protected by the Fair Housing Act. For example, it is unacceptable to use criminal background as a proxy for another protected characteristic like race or national origin in decisions about tenancy.

Notably, HUD released the guidance on the exact anniversary of Dr. King’s assassination. On such a somber occasion, it serves as a refreshing reminder of how much work there is left to do, but provides a framework we needed to dig in.

Stay tuned for updates from ERC about the recently released HUD guidance on fair housing and criminal records. We applaud HUD for releasing such guidance AND recognize that housing providers may need technical assistance when it comes to crafting updated, compliant policies and practices.

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