Criminals do not qualify as a protected class under the Federal Fair Housing Act (FHA). However, the Department of Housing and Urban Development (HUD), the federal agency responsible for administering the FHA, recently issued a statement affording criminals certain protections when they apply to purchase or rent a residence.

Because of these protections, sellers and housing providers subject to the FHA, such as condominium and homeowners’ associations, should be careful to ensure their well-intentioned policy of checking applicants’ criminal history records doesn’t result in an FHA violation.

HUD issued the recent statement after analyzing national, state, and local statistics on arrest, conviction, and incarceration rates in the United States. The analysis results demonstrated that African Americans and Hispanics are arrested, incarcerated, and convicted at rates disproportionate to their share of the American population.

Given these disproportionate rates, HUD found that criminal records assessments were having a disproportionately negative impact on African Americans and Hispanics.

Tips On Using Criminal Convictions

To facilitate an equitable review of criminal history records and to guard against discrimination claims, all association, seller, and housing provider criminal history screening policies should:

  1. Serve an interest that is legitimate and not “hypothetical or speculative”;
  2. Serve an interest that is substantial, such as ensuring that residents are safe or that property is protected;
  3. Not unintentionally cause the Association to disproportionately turn away applicants of certain races, national origins, or other protected classes; and
  4. Actually serve the intended interest.

It is important to note that, according to HUD, a housing provider, such as an association, will not be able to satisfy the above if the provider excludes someone based on an arrest without a conviction.

However, excluding someone on the basis of a conviction may be okay as long as the provider considers the nature and severity of the underlying crime, as well as the length of time since the conviction.

Blanket policies that exclude applicants based on convictions will lead to FHA violations, but a blanket policy against applicants with a conviction for controlled substance manufacture or distribution (not possession) is permissible.

Bottom Line

In short, while you can use an applicant’s criminal history in assessing their application, be careful when you establish your procedures for doing so. It may be beneficial to incorporate a review of mitigating factors beyond the applicant’s criminal record when designing your policy, as doing so will help guard against unintentional discriminatory effects that have a tendency to arise due to the disparate rates of arrest, conviction, and incarceration among races.