MHCO Columns

Fair Housing: Blanket Criminal Record Ban May Be Disparate Impact Racial Discrimination

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Possessing a criminal record isn’t a protected class under the FHA. However, statistics show that a disproportionate number of African Americans are arrested and incarcerated in the U.S., as compared to white persons. As a result, a rental policy of excluding any person with a criminal record may constitute what’s called “disparate impact” discrimination against African Americans and nationalities with disproportionately high arrest and prosecution numbers. Six of the 84 cases in this year’s Scorecard included allegations of FHA discrimination on the basis of criminal record. Criminal record discrimination may also be banned under state or local fair housing laws.


    Situation: A Michigan landlord rejected an otherwise qualified African-American applicant after an online check revealed that he had been convicted of a felony in connection with a domestic disturbance four years earlier. While acknowledging the conviction, the applicant insisted that he was fully rehabilitated. But the landlord stubbornly refused to budge from the community’s policy of not accepting anyone with a criminal conviction while stressing that it doesn’t “consider cases individually.” The applicant and a local fair housing group sued for racial discrimination. The landlord moved for summary judgment, claiming that the statistics about arrest and incarceration rates of African Americans nationwide were too general to prove disparate impact in a particular community.   

    You Make the Call: Did the applicant have a valid claim for racial discrimination under the FHA?

    Answer: Yes

    Ruling: The Michigan federal court rejected the motion and allowed the applicant to take his claims to trial. “Even countrywide statistics may be sufficient to plead a disparate impact claim where a challenged policy has a clearly disproportional effect on a protected class,” the court reasoned. Besides, the applicant also cited state and county statistics showing the same disproportionate rates of minority arrests and incarceration [Lyman v. Montclair at Partridge Creek, LLC, 2023 U.S. Dist. LEXIS 166464].

    Takeaway: As a landlord, you have a responsibility to ensure your community is safe and secure. But while a blanket exclusion based on criminal history might look like a legitimate, nondiscriminatory safety policy, in the view of HUD and many courts, it has a discriminatory impact based on race. By the same token, HUD and DOJ guidelines also say that landlords can reject or evict a person that poses a “direct threat” to the health and safety of other tenants. Rule: Having a criminal record isn’t automatic proof that a person is a direct threat. You must do an individualized assessment of each case based on:

    • How long ago the conviction occurred;
    • The nature of the crime for which the person was convicted—arrests without a conviction don’t count;
    • Evidence of rehabilitation; and
    • Other evidence related to whether the person poses a threat to safety.