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Criminal Background Checks in Housing - Finding a Balance

Criminal background checks have become a standard practice in the housing industry, with landlords and property managers using them to assess potential tenants. However, recent legal challenges and guidance from the Department of Housing and Urban Development (HUD) have highlighted the need for a more nuanced approach to this screening process.

Criminal background checks typically include information on arrests, charges, and convictions, and are used to help assess potential risks. Under the Fair Credit Reporting Act (FCRA), certain criminal records may be reported for up to seven years, while criminal convictions can potentially remain on a tenant's record indefinitely in most states. This information allows landlords to make informed decisions about potential tenants, and assess any potential risks associated with renting to an individual with a criminal history.

Recently, the use of criminal background checks in tenant screening has become a legal controversy. Recent lawsuits in states like Florida and New York highlight the risks associated with overly broad criminal history policies. Housing providers in these states have faced significant financial penalties for allegedly discriminating against applicants with criminal records. For example, in New York, a housing provider recently settled a lawsuit for over $1 million after being accused of implementing a blanket ban on renting to individuals with criminal records. Such cases underscore the legal risks associated with inflexible criminal history policies.

In 2016, HUD issued guidance urging housing providers to exercise caution when using criminal history policies in making housing decisions. The guidance highlighted a critical concern: African Americans and Hispanics are arrested, convicted, and incarcerated at disproportionate rates compared to the overall population. Consequently, policies that broadly exclude individuals with criminal records could inadvertently discriminate against these minority groups.

The challenge lies in developing screening policies that effectively assess risk without unfairly excluding entire groups of people. Blanket bans on renting to individuals with any criminal history, regardless of the nature of the offense or how long ago it occurred, are increasingly viewed as problematic from both a legal and ethical standpoint.

To make informed decisions, landlords should consider a range of factors beyond the mere existence of a criminal record. These factors include the nature and severity of the offense, the amount of time elapsed since the incident, and any evidence of rehabilitation. Additionally, landlords can examine a tenant's rental history before and after the conviction. This nuanced approach helps to assess the potential risk while adhering to fair housing principles. It also aligns with the growing recognition that past criminal history does not necessarily predict future behavior, especially when individuals have demonstrated rehabilitation and stability over time.

Moreover, some jurisdictions are taking legislative action to address this issue. For example, cities like Newark, San Francisco, Washington, D.C., and Seattle have instituted "ban the box" laws for rental housing. These laws either prohibit questions about criminal history on initial rental applications or require an individualized approach to using criminal history information later in the application process.

It's important to note that while criminal background checks can be a valuable tool in assessing potential tenants, they should not be the sole factor in making housing decisions. A holistic approach that considers an applicant's entire history and current circumstances is more likely to result in fair and legally defensible decisions.

While criminal background checks remain an important tool for housing providers, their use must be carefully balanced with fair housing principles. By adopting more nuanced and individualized approaches to criminal history screening, housing providers can work toward creating safer communities while also promoting equal access to housing opportunities for all.