Phil Querin Q&A: Rental Application, Social Security Number and Fair Housing Laws

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Phil Querin

 

Question:  We require that the application for residency in our manufactured housing community be completely filled out - including Social Security numbers.  We require two pieces of identification - one may be a social security card.  However, my understanding is that you cannot use a social security card for identification.  Is that true? 

 

We have had some real estate brokers object and tell us that it is against law do deny a person occupancy because they do not have a social security number.  Some applicants have an ITIN (individual taxpayer identification number).  

 

The screening company has said they cannot do a credit check with ITIN - they need a social security number.  

 

So, my questions are: (a) Is it illegal to requirea social security number; and (b) would it be a violation of the Fair Housing Laws to deny an applicant because they do not have a social security number?

 

 

 

Answers:  One caveat: The answers below are based upon some quick basic research and should not be relied upon as a complete legal answer to a complicated issue. You should verify the information with your own legal counsel.

 

  1. Is it illegal to require an SSN on a rental application?  No, it is not illegal to “require” an SSN on a rental application provided every application requires an SSN. Only requiring SSNs from certain applicants likely would run afoul of Fair Housing Laws if the group requested may be a protected class. The take-away is (as I have said repeatedly in the past) if you are going to require it, you must require it of everyone, regardless of protected class.  You cannot pick and choose who must provide their SSN number. 

 

  1. Is it a violation of the Fair Housing Laws to deny an applicant because they do not have an SSN?  This is a grey area. While it is not explicitly illegal to deny an applicant because they do not possess an SSN, if denials seem to only occur to certain groups of people, it could trigger a Fair Housing complaint. 

 

The Fair Housing Act prohibits discrimination against certain protected classes, one of which is national origin. The Fair Housing Council of Oregon (FHCO) encourages landlords to consider documentation other than SSNs, if possible:

 

“It is our agency’s position that the refusal to review alternative documentation when a Social Security Number is not available will have a negative and disparate impact[1]on individuals whose national origin is not the United States, thereby having a disparate impact on that protected class.” 

 

A disparate impact may arise when negative outcomes affect a particular protected class, even though they are not a product of explicit discriminatory intent. A recent example cited by the FHCO was an apartment complex in Beaverton which prohibited the cooking of curry on the premises. The prohibition was arguably without specific discriminatory intent because it was based on the difficulty of reliably cleaning apartments where curry had been frequently cooked (it was compared to the impact of tobacco smoke). However, because only certain groups of people, mostly Indian, were likely to cook curry with any frequency in their homes, the rule had a discriminatory impact on people of a particular national origin.[2]

 

FHCO advocates that landlords consider accepting alternate forms of identification (e.g., ITIN) if they, or their screening companies, can obtain similar, reliable information regarding rental risk as they would be able to with an SSN. This may take the form of asking for more assurances from a potential renter, including references to former landlords to show rental history, utility bills to show timely payments, etc. The FHCO also acknowledges that additional screening steps to compensate for a lack of SSN may have an increased cost, and that increased cost may be passed on to the applicant. [Query: But doesn’t that, in itself, create a disparate impact?! ~PCQ]

 

Although an ITIN cannot be used in place of an SSN for pulling a credit report, however, people with ITINs can build and maintain credit. Credit bureaus may be able to provide a report based on other identifying information (name, date of birth, employment history) however it may not be as accurate as one tied to an SSN, or the credit bureau may not reliably be able to pull together information for a full credit report without the SSN. It appears that methods of pulling a credit report online will not allow an ITIN to be used, but a consumer may write to the credit bureaus and attempt to pull their own credit report with their other identifying information. FHCO admits that at this time tenant screening companies likely cannot gather credit information without an SSN.

 

In short, currently it is not explicitly illegal to require an SSN for a rental application, nor is it explicitly illegal to deny an applicant because they do not have an SSN. However, a landlord may expose themselves to potential FHA liability if their facially neutral rules end up having an unintended (i.e., “disparate “) impact on a particular identifiable group (i.e., a “protected class”). 

 

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Oregon’s BOLI states that while you do have the right to select the tenants you want, refusals:

 

“…to rent cannot be based on a protected class. The protected classes include race/color, religion, sex, physical or mental disability, marital status, national origin, and familial status. All applicants must be given the same rental requirements and judged by the same standards.”[3]

 

Specifically, regarding Social Security Numbers, the FHCO suggests not outright denying for lack of SSN, but instead saying: “show me what you can” and then seeing if the documentation provided and the information that can be gleaned by the screening company is sufficient to give the landlord enough data to accept or deny an application.

 

For more information:

 

 

  1. Can you use an SSN for identification?  Social Security Cards are commonly used as one of a two-piece identification program. For example, the Oregon State ID and Driver’s License program accepts it as a primary document (provided you also have a document showing your date of birth)[4], along with other forms of identity like Passports and Driver’s Licenses. 

 

The concern with Social Security Cards is that they do not have enough identifying information to be useful as a single or primary method of ID (e.g., a photo, a date of birth, other data that corroborates that it correctly identifies the holder). If it is one of two pieces of information, that does not appear to be a problem. FHCO provides a list of alternative documents that a prospective renter might produce, and a landlord may consider accepting.

 

Documents that can establish identity

Documents that can establish past rental history

Documents that can establish credit or 

ability to pay rent

  • Citizenship Card, Consulate Cards
  • INS Form I-864 Sponsorship verification
  • Certificate of Naturalization (INS I-550)
  • Voter's registration card
  • U.S. Passport
  • Certificate of U.S. Citizenship (N-550 or N-561)
  • Unexpired foreign passport, with 1-555 stamp or INS form 1-94 indicating unexpired employment authorization
  • Alien registration receipt card with photograph (I-151 or I-551)
  • Unexpired temporary resident card (I-688)
  • Unexpired employment authorization card (I-688A or I-688B)
  • Unexpired reentry permit (I- 327)
  • Unexpired refugee travel document (I-571)
  • Driver's license or ID card
  • Military card or draft record or military dependent card
  • School ID card with photograph
  • Hospital records
  • Day care or nursery school records
  • Records from school district to establish stability
  • Letter from utility company to establish rental history
  • Letter from former landlord with a phone number
  • Copy of lease from former residence
  • (Social Security card)
  • Letter from employer
  • Current contracts for major purchases to help identify credit
  • Bank records
  • Sponsorship letters
  • INS Form I-864 Sponsorship verification
  • Individual Taxpayer Identification number (ITIN)
  • Current Pay stubs
  • Benefit Award Letter (SSA, DSHS, etc.)
  • Section 8 Voucher
  • School Payment Contracts
  • Paid off Installment contracts
  • Paid Utility Bills

Chart taken from: http://fhco.org/index.php/learning-resources/fhco-downloads/category/6-translations?download=217:suggestedaltdocs-bilingual

 

 

 

[1]PCQ Note: The Biden administration is bringing back some of the disparate impact rules that the Trump administration had shelved.

[3]Oregon Bureau of Labor and Industries, Frequently Asked Questions for Landlords, available at: https://www.oregon.gov/boli/civil-rights/Pages/fair-housing.aspx

[4]Oregon Department of Transportation, Department of Motor Vehicles, Required Identity Documentation, available at: https://www.oregon.gov/odot/dmv/pages/driverid/idproof.aspx(note: Social Security Card is not sufficient for the Real ID Program)

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