Benigno Herrera, a 70-year-old man in Austin, Texas, was turned down when he tried to rent an apartment recently. The reason? He had a drunk driving conviction on his record – from 36 years ago.
Cases like Herrera’s are coming up much more frequently, and raising legal questions about how far landlords can go in using criminal background checks to screen potential tenants.
The issue is reaching a boiling point for two reasons. One is that it has simply become much easier for landlords to perform these checks. In the past, landlords had to hire an investigator or go through local court records, but today, they can often just perform a simple computer search.
The second reason is that apartment vacancy rates are at historic lows, which allows landlords to be much more choosy in whom they accept.
In the abstract, it’s reasonable to suggest that a person who has been convicted of a crime might be less likely to pay the rent or more likely to cause other problems in a building, and that a policy of banning criminals can make a property more attractive to other tenants.
And while the federal fair-housing laws prohibit discrimination on the basis of race, sex, family status, etc., they don’t specifically ban discrimination against people with a criminal record.
On the other hand, banning anyone with a criminal history can exclude a lot of people whose background isn’t really relevant – for instance, does it make sense for a landlord to refuse to rent to a successful 50-year-old executive because he was once arrested many years ago for underage drinking?
Some 100 million Americans have a criminal record of some sort – that’s almost a third of the population.
Although federal law doesn’t specifically prohibit using background checks, the U.S. Department of Housing and Urban Development recently released a “guidance” that said banning people with a criminal background could be illegal in some cases – specifically, it could amount to race or national origin discrimination if it has a disproportionate effect on blacks and Hispanics, both of whom are overrepresented nationally in the prison population.
In other words, landlords could be sued if their background-check policy results (or predictably will result) in blacks or Hispanics being disproportionately rejected as tenants.
The HUD guidance envisions lawsuits brought by rejected tenants, by civil rights groups, and even by HUD itself.
If such a lawsuit is brought, the first question will be whether the landlord’s policy actually has a disproportionate effect on minorities. This could lead to a battle of statistical data, including census information, local criminal justice figures, and detailed records about past tenants and applicants.
Keep in mind that it makes no difference whether the landlord intended to discriminate against anyone. The only question is whether the policy has the effect of discriminating.
If the policy has such an effect, then the landlord must show that it is nevertheless justified. For instance, a landlord could claim that the policy is necessary to protect other residents’ safety and property.
But a landlord who makes this claim has to prove that it’s actually necessary, HUD says. A landlord can’t just make a generalized claim that people with a criminal record are more dangerous.
Further, a landlord can’t exclude people based solely on an arrest record, since an arrest by itself doesn’t prove that the person is guilty. And even if a person was convicted, the landlord has to consider whether the offense was recent enough and related enough to matter. A landlord might be justified in rejecting someone with a recent conviction for burglary or sexual assault, for instance, but it’s a different situation if the person committed a minor motor vehicle offense 20 years ago.
One of the few exceptions is that a landlord can almost always reject someone who has a conviction for dealing drugs – although this applies only to dealing; simple possession doesn’t count.
Finally, landlords must apply their policy consistently. It’s illegal, for example, to dig into the criminal history of black applicants but not of white applicants.
Many landlords agree that a blanket ban on anyone with a criminal record is going too far, but they worry that HUD’s approach also puts them in a bind – if landlords have to make an individual determination in each case as to whether a conviction was recent and related enough, that can make it harder for them to prove that they were acting even-handedly and not using criminal history simply as a pretext for discrimination.