A recent fair housing settlement in New York City illustrates the importance of having screening policies for criminal records that only screen for criminal behavior that presents an actual threat to people or property.
A New York City property management company recently settled with the New York City Commission on Human Rights after being charged with discrimination based on race, color, and national origin. The company had a blanket policy of denying housing to applicants with criminal histories regardless of the circumstances or type of crime.
Under the settlement, the company agreed to pay $55,000 in emotional distress damages to an individual affected by the policy, along with $25,000 in civil penalties. The company must also develop new screening and application procedures and invite applicants with criminal histories who were previously denied to re-apply.
This is the first such case in New York City and one of the first in the United States. The Commission argued that the company’s blanket policy of denying housing to any applicant with a criminal record has a disparate impact on black and Hispanic New Yorkers, who studies show are disproportionately impacted by arrest, conviction, and incarceration rates.
The Department of Housing & Urban Development (HUD) issued guidance in 2017 indicating that a blanket policy of denying housing to persons with criminal records is likely to violate federal fair housing law unless the owner can show that the policy shows a legitimate business interest. The HUD guidance further points out that arrest records are often inaccurate and incomplete and that relying on them as a basis for denying or terminating someone from housing may result in unjustified denials of admission or unjustified eviction.
As part of any criminal screening policy, owners should conduct individualized assessments of applicant’s criminal records including the nature, severity, and date of any convictions. While these assessments do not have to be done during the initial screening, any applicant or resident negatively impacted by criminal screening should be informed of their right to request an individualized assessment.
In the New York City case, statistics show that blacks and Hispanics are incarcerated at disproportionately higher rates based on their share of the population. African-Americans make up only 24.4% of the city population but comprise 53.6% of the prison population. These statistics are similar to national figures.
This case may serve as a leading indicator of what could be a national trend among fair housing enforcement agencies. All housing operators should carefully examine any criminal screening policies and ensure that they are designed in a way that satisfies federal fair housing guidance. At a minimum, a policy should contain the following elements:
- Screen only based on convictions – not arrests;
- Screen only for crimes that could be an actual threat to property or residents. Categories of crimes suitable for screening include
- Violent Crimes;
- Property Crimes;
- Sex Crimes; and
- Drug Offenses
Keep in mind that not all crimes in these categories present an actual threat
3. Have a procedure for individualized assessments when requested; and
4. With few exceptions, have a reasonable “look-back” rule, such as seven to ten years.