Criminal background checks are the latest battleground for potential race discrimination claims. If it’s been a while since you last reviewed your policy, it’s important to check to make sure your policy doesn’t run afoul HUD guidelines addressing the discriminatory effect that criminal background policies may have on racial and ethnic minorities.
Question: How urgent is this? How soon do you recommend that we review and revise our criminal history policies?
Answer: Time is of the essence, said Williams, who believes that anyone with a broad generalized policy is at high risk for challenge. Certainly the larger your company, the more chance there will be that you could be challenged, so she believes it's a very smart practice for everyone - all companies - to take another look at their criminal screening policy to determine if it needs to be revised, and if so, to immediately go about taking the steps to do so.
If you haven't done so already, pull out your resident selection criteria and take a close look at the evaluation standards for applicants with criminal records. Depending on what it says, you may need to make some changes right away. Then review it in detail - and get help from your attorney, resident screening company, and other advisors to ensure that it complies with HUD guidelines. Richer offered some key best practices:
CRIMINAL HISTORY SELECTION CRITERIA BEST PRACTICES
What should you do in light of HUD's guidance? The first thing to realize is that the HUD guidance isn't intended only for HUD program housing providers, explained Richer.
Industry experts agree that the guidance provided by HUD applies to all housing providers, not just those receiving federal funding. The best practices are being recommended, so that any housing provider that uses criminal histories in its applicant screening process will consider disparate impact and review its criteria, adjusting as necessary, she said.
Criminal background checks - always a popular issue. Of course you can use them to screen prospective applicants, right? You may be surprised.
The use of criminal background checks in the residential housing rental and lease application process has recently become a hot button issue. Back on April 4, 2016, the U.S. Department of Housing And Urban Development's ("HUD") General Counsel issued a 10-page memorandum on "Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions" ("Guidance").
Question. I spoke with someone recently who informed me that Federal Law (i.e. the Fair Credit Reporting Act) prohibits criminal background checks beyond seven years. Yet I am concerned that with some crimes, e.g. child molestation, it would be important to know if there were any convictions, not just those within the last seven years. It also appears that HUD seems to be saying the same thing. I am getting mixed information on this issue. Can you help clarify?
Question: We recently had an applicant (with a criminal history) that management rejected for an RV spot we had available. The criminal background check disclosed that the applicant had a prior burglary and criminal mischief conviction in 2008. He pled guilty and was given a 20-day jail sentence, with 18 months’ probation. He accepted our rejection without argument, but upon reflection, I’m concerned whether our manager may have been too hasty in light of the recent court rulings and Department of Justice pronouncements on how we should use criminal background information when one applies for housing. Should we have handled this any differently?
Background. On April 4, 2016, the U.S Department of Housing and Urban Development (“HUD”) issued its “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions” (hereinafter, the “Memo”). The full text of the 10-page Memo can be found here. Not surprisingly, it follows the June 25, 2015 ruling by the U. S. Supreme Court, in the Texas Dept. of Housing vs. Inclusive Communities case, which upheld the much-debated concept of “disparate impact” under the Fair Housing Act, as amended (the Act”).