Landlords who exclude ex-convicts may be breaking the law, HUD says
New guidance relies on concept of disparate impact, noting that black and Latino people are disproportionately incarcerated and more likely to be excluded
Landlords who use criminal convictions to exclude prospective renters may be breaking the law, according to new guidance from the US Department of Housing and Urban Development.
A housing provider violates the Fair Housing Act when the providers policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate, reads Mondays release. The new rule advises landlords against imposing a blanket ban against tenants with criminal records, although it does permit case-by-case assessments of whether tenants could pose a threat.
JoAnne Page, president and CEO of the Fortune Society, which works with formerly incarcerated individuals, said she was thrilled by the announcement. Weve been fighting this issue for years and this is one of the most hopeful things we have seen.
We know that if a person does not have a stable, affordable place to live, being a contributing member of society is extremely difficult, Page said.
The Fair Housing Act was passed in 1968 and signed into law by President Lyndon B Johnson. It prohibits discrimination in housing on the grounds of race, color, religion, sex or national origin. Criminal history is not a protected status under the law, but HUDs new guidelines rely on the concept of disparate impact, noting that black and Latino people are disproportionately incarcerated and therefore more likely to excluded by blanket policies.
Criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another, the release states.
HUDs guidelines also note the problem of landlords selectively enforcing a ban on applicants with criminal records, using it as an excuse to deny housing to black applicants while accepting white people with criminal histories.
The concept of disparate impact is one that activists and jurists have wrangled over for decades. Last June, the US supreme court ruled in a 5-4 decision that the 1968 Fair Housing Act applies to disparate impact as well as discriminatory intent. The ruling in Texas Department of Housing and Community Affairs v Inclusive Communities Project was hailed as a victory by civil rights groups. It prohibited any housing policy that results in poorer outcomes for protected groups, such as black Americans, regardless of whether they were intentionally discriminatory.
Writing for the majority, Justice Anthony Kennedy said that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors.
A year before that ruling, in summer 2014, the Fortune Society filed a lawsuit against a housing provider in Queens, New York, challenging the blanket exclusion of people with a criminal record. Bans on housing and employment for those re-entering society from prison fall disproportionately and overwhelmingly on African American and Hispanic men, said lead attorney John Relman. When housing providers deny those who have been formerly incarcerated basic rights, they are creating a racial and ethnic caste system.
The case is still pending and Page said both the supreme court ruling and todays announcement represented wind at activists backs. Two years ago, we might have been fighting uphill, and now the supreme court is on our side, Page said.
Neither the Texas department of housing case nor the new HUD guidelines prevent a landlord from excluding an ex-convict if that person represents a threat to the safety and security of the other residents in the building; applicants may still be excluded based on individual consideration. In fact, the new HUD guidelines permit landlords to issue a blanket ban of people convicted of certain kinds of felonies, so long as they can prove it serves a substantial, legitimate, nondiscriminatory interest.
HUD itself requires that local public housing authorities ban anyone convicted of producing methamphetamines on public housing property, as well as registered sex offenders, for life.
Despite this release, HUDs guidance in dealing with drug use by residents is notoriously harsh. A stowaway from the war on drugs era, HUD requires that public housing authorities evict public housing residents if they or someone in their unit even an unrelated guest commit a drug crime. [T]his means that a tenant and their household members may be evicted if a guest is staying at their apartment for the week and during that week is arrested for using illegal drugs on the other side of town, according to a HUD document.
Because of these rules, many local housing agencies place extremely restrictive guidelines on people with convictions living in public housing. The New York City housing authority (NYCHA), for example, bans potential residents who have been convicted of a felony for six years, and even bans people who commit summons-level drug violations for two years.
Their restrictions ban people who just smoked a joint its incredible, Page said.
These are not blanket restrictions, however. Applicants can work around these rules if they are able to sufficiently prove rehabilitation. NYCHA said the new HUD rules do not effect their acceptance policies, which are already consistent with HUD guidance.