Recently the Federal Housing and Urban Development (“HUD”) told residential landlords and home sellers that turning down tenants and buyers based upon his or her criminal history may violate the Federal Fair Housing Act. Because of purported wide-spread racial and ethnic disparities in the U.S. criminal justice system, criminal history based restrictions on access to housing are likely to disproportionately burden African-Americans and Hispanics.
Currently, people with criminal records are not a protected class under the Federal Fair Housing Act, and the guidance from HUD’s general counsel said that in some cases, turning down an individual tenant because of his or her record can be legally justified.
But blanket policies of refusing to rent to anyone with a criminal history are de facto discrimination, HUD says, because of the systemic disparities of the American criminal justice system.
All criminal records aren’t created alike. That doesn’t mean landlords are completely barred from considering criminal records. The landlords do, however, have to prove that their policy legitimately serves to protect safety or property.
You can’t use criminal records as a pretext for discrimination. HUD warns landlords that if they do intend to discriminate, and use criminal records as a cover for their actions, they can be found in violation. HUD officials have told residential landlords to consider: Is their policy towards criminal records about keeping a community safe?