From housing to work, it’s a well-documented fact that the 70 million+ people living with criminal records in the United States have a difficult time connecting with the resources they need to succeed post incarceration. Yesterday (April 4), they got a big hand.
The U.S. Department of Housing and Urban Development (HUD) issued a new guidance that makes it clear that landlords and home sellers who turn away candidates because they have criminal records may be engaging in discrimination. While people carrying criminal histories are not a protected class via the Fair Housing Act, the guidance says that the disparities built into the criminal justice system mean that subscribing to a blanket policy that excludes them is de facto discrimination—even if it is unintentional.
Per the guidance:
Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have disproportionate impact on minority home seekers. While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters of other housing market participants of one race or national origin over another (ie: discriminatory effects liability). Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).
NPR reports that housing secretary Julián Castro made the language plain in a statement today: “When landlords refuse to rent to anyone who has an arrest record, they effectively bar the door to millions of folks of color for no good reason.”
Housing providers are only allowed to use criminal records as a screen in two ways. One, if the person was convicted of manufacturing or distributing drugs. And, two, if the provider uses a policy that is tailored to serve their “substantial, legitimate, nondiscriminatory interest and take[s] into consideration such factors as the type of the crime and the length of the time since conviction.”