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WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) bans housing discrimination based on race, color, religion, sex, national origin, familial status, or disability—what’s known as “protected classes.”

Congress added familial status to the list of federally protected classes when it amended the FHA in 1988. In a nutshell, the familial status provisions make it unlawful to discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household. Specifically, the FHA’s ban on discrimination based on familial status apply to one or more children under 18 living with:

• A parent;
• An individual with legal custody; or
• An individual who has the written permission of the parent or custodian.

The familial status provisions also apply to pregnant woman and anyone in the process of securing legal custody of one or more children under 18.

Nevertheless, Congress recognized the need to preserve housing specifically designed to meet the needs of senior citizens. Consequently, the 1988 amendment created an exemption from the FHA’s familial status requirements for communities that qualified as “housing for older persons.” Congress later amended the law in the Housing for Older Persons Act of 1995 (HOPA), resulting in the current version of the federal exemption for senior housing.

The exemption allows senior housing communities that meet specific requirements to legally exclude families with children. The exemption applies to housing communities or facilities, which are governed by a common set of rules, regulations, or restrictions. A portion of a single building isn’t considered a housing facility or community, according to HUD. The senior housing exemption applies only to the FHA’s familial status provisions; communities must still abide by the law’s protections based on race, color, national origin, religion, sex, and disability.

The law describes three types of communities that are eligible for the senior housing exemption:

1. Publicly funded senior housing communities: Housing communities where HUD has determined that the dwelling is specifically designed for and occupied by elderly persons under a federal, state, or local government program;
2. 62-and-older communities: Communities intended for, and occupied solely by, persons who are 62 or older; and
3. 55-and-older communities: Communities that house at least one person who is 55 or older in at least 80 percent of the occupied units and adheres to a policy that demonstrates intent to house persons who are 55 or older.

7 RULES TO FOLLOW TO AVOID FAIR HOUSING TROUBLE

IN SENIOR HOUSING COMMUNITIES

Rule #1: Comply with Technical Requirements for Senior Housing Exemption

Senior communities must adopt policies and procedures to ensure strict compliance with the technical requirements of the senior housing exemption. If you don’t comply with the law’s requirements, then you lose the exemption, which in essence makes your community automatically liable for excluding or discriminating against families with children. 

Complying with the law governing the 62-and-older exemption is relatively straightforward. To qualify, the community must be intended for and occupied solely by persons aged 62 and older. For example, HUD regulations explain that a 62-and-older community would have to refuse the application of a 62-year-old man whose wife is 59. In the same vein, a community would lose its exemption if it allowed continued residency by a current resident who married someone under the age of 62.

Complying with the law governing the 55-and-older exemption is more complicated. To qualify, the community must satisfy each of the following requirements:

• At least 80 percent of the occupied units must have at least one occupant who is 55 years of age or older;
• The community must publish and adhere to policies and procedures that demonstrate the intent to operate as “55 or older” housing; and
• The community must comply with HUD’s regulatory requirements for age verification of residents.

1. 80 percent rule. To meet this requirement, a community must ensure that at least one person 55 or older lives in 80 percent of its occupied units. The law doesn’t restrict the ages of the other occupants in those units. Furthermore, there are no age limits for the occupants of the other 20 percent, so communities may accept families with children, although they don’t have to do so.

The 80 percent rule applies to the percentage of “occupied units,” which includes temporarily vacant units if the primary occupant has resided in the unit during the past year and intends to return on a periodic basis. That means that a unit would count toward the 80 percent requirement if its 55-year-old occupant resided in the unit for only part of each year.

To maintain eligibility for the exemption, it’s a good idea to ensure that more than 80 percent of your occupied units are occupied by at least one person aged 55 or older. If you skate too close to the line, your community could be forced into a difficult situation—for example, if a 60-year-old resident dies, leaving a 54-year-old surviving spouse.

To prevent just such a problem, HUD advises communities to plan with care when renting the 20 percent portion of the remaining units to incoming households under age 55. Such planning should address notice to incoming households under the age of 55 regarding how the community will proceed in the event that the 80 percent requirement is threatened.

2. Intent to operate as senior housing. A community must publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons 55 years of age or older. HUD offers some examples of the types of policies and procedures to satisfy this requirement, including:

• The written rules, regulations, lease provisions, or other restrictions;
• The actual practices of the community used to enforce the rules;
• The kind of advertising used to attract prospective residents to the community as well as the manner in which the community is described to prospective residents; and
• The community’s age-verification procedures and its ability to produce, in response to a familial status complaint, verification of required occupancy.

3. Verification of occupancy. To qualify under the 55-and-older exemption, communities must able to produce verification of compliance with the 80 percent rule through reliable surveys and affidavits.

HUD regulations require communities to develop procedures to routinely determine the occupancy of each unit, including the identification of whether at least one occupant is 55 or older. The procedures may be part of the normal leasing arrangement. And, every two years, communities must update, through surveys or other means, the initial information to verify that the unit is occupied by at least one resident age 55 or older.

In addition, communities must establish procedures to verify the age of the occupants in units occupied by persons 55 and older through reliable documentation, such as birth certificates, driver’s licenses, passports, immigration cards, military identification, and other official documents that show a birth date. HUD regulations also allow a certification signed by any member of the household aged 18 or older asserting that at least one person in the unit is 55 or older.

Rule #2: Market Your Community as Senior Housing

For 55+ communities, it’s essential to ensure that your advertising and marketing doesn’t undercut your ability to qualify for the senior housing exemption.

To qualify for the senior exemption, the law requires communities to demonstrate an intent to provide housing for older persons. The manner in which your community is described to potential residents is among the relevant factors listed in HUD regulations to determine whether a community has complied with the intent requirement. Using the wrong words to describe yourself not only may trigger a fair housing complaint, but also undercut your ability to demonstrate your intent to operate as “55 or older” housing.

As an example, fair housing expert Doug Chasick points to the increasing number of housing developments that market themselves as “Active Adult” or “Empty Nester” communities. Yet, he points out, using the term “Adult Only” housing was outlawed back in 1988, when President Reagan signed amendments to the FHA into law. He says that some state and local enforcement agencies claim that using these phrases are always illegal because they’re incompatible with the intent requirement.

HUD doesn’t take it that far. It’s true that HUD regulations state that “Phrases such as “adult living,” “adult community,” or similar statements in any written advertisement or prospectus are not consistent with the intent that the housing facility or community intends to operate as housing for persons 55 years of age or older. But HUD says that the use of these terms does not, by itself, destroy the community’s ability to meet the intent requirement, according to HUD. If a facility or community has clearly shown in other ways that it intends to operate as housing for older persons, meets the 80 percent requirement, and has in place age verification procedures, then HUD says that the intent requirement can be met even if the term “adult” is occasionally used to describe it.

That’s not to say that Chasick says it’s a good idea to use those terms in your advertising or marketing materials. In fact, he recommends against it unless you want to be caught up in an expensive investigation or enforcement action. Instead, Chasick recommends using words like “senior housing,” “senior living community,” “a 55 and older community,” or even a “55 and Better Community” when describing your community to demonstrate your intent to operate as housing for older persons.

Coach’s Tip: Chasick warns against using the phrase “active adult” in your advertising and marketing materials. Every senior should be welcome, whether they’re active or not, he says.

Rule #3: Don’t Discriminate Based on Race or Other Protected Characteristics

The FHA’s senior housing exemption is limited: It offers protection from federal fair housing claims based upon familial status as long as your community meets the FHA’s requirements to qualify as housing for older persons. It doesn’t exempt senior housing communities from any claims based on race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

That means that senior communities must take steps not only to qualify under the senior housing exemption, but also to ensure they don’t exclude or otherwise discriminate against applicants or residents based on race or other protected characteristic. For example, senior communities must adopt nondiscriminatory policies and procedures governing the application process and treatment of residents in addition to complying with the age-verification and other requirements to qualify for the senior housing exemption. And train your staff to apply those policies consistently to all applicants and residents, regardless of race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.

Rule #4: Enforce Rules to Prevent Harassment by or Against Residents

Take steps to enforce rules to prevent harassment or other misconduct by or against residents. If a resident complains about being harassed by other residents based on her race, sex, or any other protected class, then you should take the complaints seriously.

You shouldn’t be expected to police the behavior of your residents, but you should make it clear that bullying or any other forms of harassment based on protected characteristics won’t be tolerated. Depending on the circumstances, you could face liability under fair housing law if you knew that a resident was subjected to severe and persistent abuse from other residents, but you did nothing to stop it.

Example: In August 2018, a federal court reinstated a fair housing case against an Illinois retirement community for harassment and retaliation. The complaint alleged that the resident endured months of physical and verbal abuse by other residents because of her sexual orientation, and that despite her complaints, the community did nothing to stop it and in fact, retaliated against her because of her complaints.

Fair housing law prohibits discriminatory harassment that creates a hostile housing environment. To prove the claim, the resident had to prove that: (1) she endured unwelcome harassment based on a protected characteristic; (2) the harassment was severe or pervasive enough to interfere with her tenancy; and (3) there was reason to hold the community responsible.

The resident’s complaint satisfied the first and second requirements. She alleged that she was subjected to unwelcome harassment based on her sex, and the community agreed that the court’s earlier ruling—that employment discrimination based on sexual orientation qualifies as discrimination based on sex—applied equally to housing discrimination claims. And the alleged harassment could be viewed as both severe and pervasive—for 15 months, she was bombarded with threats, slurs, derisive comments about her families, physical violence, and spit.

The complaint also satisfied the third requirement. When the case goes back for further proceedings, the focus will be on the management defendants to determine whether they had actual knowledge of the severe harassment that the resident was enduring and whether they were deliberately indifferent to it. If so, then they subjected the resident to conduct that the FHA forbids [Wetzel v. Glen St. Andrew Living Community, August 2018].

Editor’s Note: The appeals court’s ruling—that discrimination based on sexual orientation qualifies as sex discrimination—applies to all the states within the court’s jurisdiction, including Illinois, Indiana, and Wisconsin. But more recently, a court in Missouri came to the opposite conclusion—that discrimination claims based on sexual harassment don’t qualify as sex discrimination—and dismissed a complaint filed by a married lesbian couple who alleged that a senior living community turned them away because of their sexual orientation [Walsh v. Friendship Village of South County, January 2019].

Rule #5: Watch for Potential Disability Discrimination Claims

Senior housing communities must pay particular attention to fair housing protections for individuals with disabilities. The FHA prohibits communities from excluding individuals with disabilities or discriminating against them in the terms, conditions, and privileges of the tenancy.

Example: In December 2018, the owners and operators of a California senior housing complex agreed to pay $2,500 to resolve claims that they violated state fair housing laws by denying housing to a prospective resident because she has a disability.

In her complaint, the prospect alleged that the property manager initially approved her tenancy application but rescinded the approval after meeting her and seeing that she uses a wheelchair. The prospect’s daughter had handled most aspects of the application process, including viewing the unit. When the prospect arrived in a wheelchair to sign the lease, the property manager allegedly refused to rent her the unit and accused her and her daughter of misrepresenting the prospect’s identity by bringing other individuals to view the unit.

“The Fair Employment and Housing Act promises that all tenants, regardless of disability, have equal access to housing,” Kevin Kish, Director of the California Department of Fair Employment and Housing, in a statement. “Housing providers have a legal obligation to eliminate unlawful bias from every stage of the housing application process.”

Fair housing law bans discrimination against applicants and residents because they—or someone they’re associated with—is a member of a protected class. HUD says that the FHA’s disability provisions were intended to prohibit not only discrimination against the named tenant, “but also to prohibit denial or housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants or other associates with disabilities.”

Example: In December 2018, HUD announced that a New Jersey condo association representing residents of a 55-and-older condominium development has settled a complaint alleging that it refused to sell a condo to a man with disabilities and his wife because the couple planned to have their adult disabled daughter live with them. The settlement requires the association to pay a $9,000 civil penalty to the United States, undergo fair housing training, and make changes to the associations’ bylaws as they relate to reasonable accommodations. The wife, now a widow, is pursuing claims against the association in state court. The association denies that it discriminated against the family.

“No family whose members have disabilities should be denied the reasonable accommodations they need to make a home for themselves,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Hopefully, today’s ruling will remind homeowner associations of their obligations under the Fair Housing Act and encourage them to follow the law” [Secretary, HUD v. Tamaron Association, December 2018].

Senior communities must be prepared to comply with the full array of disability protections. For example, the FHA requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. The law also requires owners to permit residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises.

Example: In December 2017, the owner and property manager of a California community agreed to pay $11,000 to resolve a HUD complaint alleging disability discrimination against a resident with a mobility impairment. According to her complaint, the resident requested to have a live-in aide and a key to a locked gate near her unit to make it easier for her to come and go. In both instances, she said that the owner and property manager asked her intrusive questions about her disability, challenged whether she really had a disability, asserted that the development was for individuals who could live independently, and ultimately denied her requests.

“Residents with disabilities have the right to reasonable accommodations that allow them to use and enjoy their home, without unnecessary and invasive questioning,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work with housing providers to ensure they meet their obligation to comply with national fair housing laws.”

Example: In December 2018, the Fair Housing Justice Center (FHJC) announced that a settlement has been reached with the remaining defendants in two federal lawsuits against the operators of dozens of nursing homes and assisted living facilities for allegedly refusing to make American Sign Language (ASL) interpreter services available to deaf and hard-of-hearing residents. Though denying the allegations, the defendants in the latest settlement agreed to pay $245,675 in damages and attorney’s fees to resolve the case.

The FHJC says that the settlements in these cases ensures that deaf and hard-of-hearing people will have access to ASL services and other auxiliary aids and services as a reasonable accommodation in 61 nursing homes and 35 assisted living facilities in the New York City region. The settlement agreements reached with the defendants in these two cases also yielded a total monetary recovery of nearly $1.2 million in damages and attorney’s fees.

Rule #6: Review ‘Independent Living’ Requirements

Depending on the circumstances, you could face a fair housing complaint for imposing independent living requirements on applicants or residents. Courts have found that a policy requiring applicants to demonstrate an ability to live independently violates fair housing laws protecting individuals with disabilities [Cason v. Rochester Housing Authority, August 1990].

Example: In September 2017, the owner and managers of a 41-unit community in California agreed to pay $18,500 to resolve allegations of discrimination against elderly residents with disabilities who relied on support from caregivers. A fair housing organization filed the complaint on behalf of an elderly resident facing eviction after returning from the hospital with support from a part-time caregiver. Allegedly, the owner and property manager said that they didn’t want the “liability” of her remaining in her home, threatened to call the county to have her “removed,” ordered her to move out, and asked invasive questions about the extent of her disabilities. According to the organization’s complaint, its investigation corroborated the resident’s allegations and revealed that testers calling for disabled relatives were told that the complex was for “independent living” and people who “can take care of themselves.”

Example: In Michigan, fair housing advocates recently sued an affordable senior housing apartment complex, alleging that the community applies “independent living” requirements to force residents with disabilities to move, even if those residents are meeting all the requirements of the lease. The complaint asks the court to recognize the community’s practices as discriminatory and prevent the complex from forcing tenants with disabilities to leave their homes when they remain capable of meeting all of their lease obligations.

“Civil rights laws ensure that people with disabilities can decide for themselves where and how to live in the community of their choosing,” says Susan Silverstein, Senior Attorney at AARP Foundation. “The law doesn’t allow landlords to refuse to accommodate tenants with disabilities,” adds a lawyer for the Michigan Clinical Law Program, “and it certainly doesn’t allow landlords to refuse to let tenants age in place just because they might need some outside help.”

Example: And in New York, fair housing advocates and two individuals sued the state and four adult care facilities, alleging that they maintained and enforced blanket policies barring wheelchair users, regardless of their individual needs or abilities, and steered applicants who use wheelchairs to nursing homes.

One of the individual plaintiffs, an elderly woman with disabilities, alleged that she was barred from returning to one of the communities once she began using a wheelchair. According to the woman, the community tried to evict her because of an internal policy barring admission of people who use wheelchairs and state health department regulations that supported such policies at these and other facilities.

The lawsuit also alleges that New York State promotes disability discrimination through its regulations and policies, including its policy permitting adult homes to ban wheelchair users from admission. Until recently, state health department regulations stated that adult homes and assisted living programs should not admit or retain people who are “chronically chairfast.”

The state has since amended the regulations to eliminate the phrase “chronically chairfast” and to add language that operators may not exclude individuals solely because they primarily use a wheelchair for mobility and must make reasonable accommodations as necessary to comply with the law. Last fall, the court issued an order directing the community to allow the elderly woman to return to her home. The case is still pending in federal court.

Rule #7: Comply with Applicable State and Local Laws

It’s critical to review applicable state and local fair housing laws because the laws affecting senior housing may vary substantially, depending on your location. For example, HUD points out that federal fair housing law doesn’t cover age discrimination, which is a protected characteristic under some state and local fair housing laws.

Moreover, HUD notes that some state and local governments with fair housing laws that have been determined to be substantially similar to the federal law may not include an exemption from the familial status discrimination for housing for older persons.

Alternatively, some state or local laws impose different standards for the senior housing exemption. In California, for example, the legislature adopted more stringent requirements on senior housing than is required under the FHA “in recognition of the acute shortage of housing for families with children” in that state. The law imposes specific requirements related to accessibility, common areas, and refuse collection.

Still other state and local laws apply an older version of the federal exemption. Under the original 1988 legislation, 55-and-older communities had to have “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the exemption.

Though Congress eliminated the “significant services and facilities” requirement from federal fair housing law, some states didn’t follow suit. In Georgia, for example, communities are still required to furnish “significant facilities and services specifically designed to meet the physical or social needs of older persons” to qualify for the senior housing exemption.

Coach’s Tip: HUD urges communities to check all relevant state, local, and federal laws, as well as any requirements imposed as a term of governmental financial assistance before implementing policies and procedures that limit residents’ eligibility. Because of the complexity of the issues involved, you should get legal advice from an attorney well versed in the legal requirements for senior housing issues in your jurisdiction. 

• Fair Housing Act: 42 USC §3601 et seq.

Coach Source

Douglas D. Chasick, CPM, CAPS, CAS, ADV. RAM, CLP, SLE, CDEI: The Fair Housing Institute, Inc.; Norcross, GA;

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) makes it illegal to refuse to rent or deny a person housing because of his or her race, color, religion, sex, handicap (disability), familial status, or national origin. Although many states also ban discrimination on the basis of a person’s criminal record, this isn’t one of the protected grounds listed in the FHA.

Question:How can criminal record discrimination be illegal if the FHA doesn’t mention it?

Answer:Refusing to rent to people with a criminal record may be an indirect form of racial, national origin, and other forms of discrimination the FHA does prohibit.

Explanation: The reason for this has to do with the so-called rule of “disparate impact” discrimination that holds that policies and practices that are neutral on their face may still be illegal if they have the effect of discriminating against a group the law protects. This is true even if there was no intent to discriminate.

Example: A fire department policy bans any persons from being promoted to the position of chief unless they have at least 10 years of service in the department. On its face, this seems like a perfectly neutral, legitimate, and nondiscriminatory policy. The problem is that the department began hiring women only five years ago. Before that, it was exclusively male. As a result, the 10-years’ service policy has the effect of excluding women from being promoted to chief and is thus a form of illegal sex discrimination.

Although the potential of disparate impact liability for criminal history restrictions began as an employment principle, the U.S. Supreme Court and HUD have made it clear that it also applies to fair housing. In 2016, HUD published guidance to address the issue. Citing the widespread racial and ethnic differences in the U.S. criminal justice system and statistics showing that across the nation, African Americans and Hispanics are arrested, convicted, and incarcerated at disproportionately higher rates than whites with respect to their share of the general population, the guidance states that barriers to housing based on criminal records are likely to have disproportionate impact on minority home seekers.

The HUD guidance also explains what owners can do to avoid disparate impact liability when carrying out criminal history screening. The eight rules below come from the guidance and later court cases applying them to actual situations.

8 RULES FOR AVOIDING DISCRIMINATION

WHEN SCREENING APPLICANTS’ CRIMINAL BACKGROUNDS

Rule #1: Continue Performing Criminal Background Checks

The starting point is to understand that nobody is saying that you must stop performing criminal background checks on applicants. On the contrary, apartment communities have every right to establish their own policies governing who may live there, as long as their standards are fair, reasonable, and nondiscriminatory—that is, that they apply equally to all applicants regardless of race, color, religion, sex, familial status, national origin, disability—or any other personal characteristic protected under state and local fair housing laws. The FHA also specifically excludes individuals who pose a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

Moreover, courts and HUD have long recognized owners’ rights to perform background screening to ensure applicants meet their legitimate rental criteria. That includes criminal background checks to the extent that they serve the owner’s legitimate business interest in:

• Protecting their property and the safety and property of their residents;
• Ensuring that applicants can pay the rent; and
• Retaining other residents who may be fearful and leave the community if a person with a criminal record is allowed to live there.

Bottom line: The liability risk stems not from performing criminal records screening but how you perform it, including not only your screening criteria but how you use the results to make decisions about applicants.

Rule #2: Don’t Do Criminal Checks Until You Determine the Applicant Is Otherwise Qualified

Don’t perform criminal background checks unless and until you complete the credit, rental history, and other necessary checks and determine the applicant is qualified. This rule is based not so much on law as practical considerations. In addition to the legal complications, criminal checks costs time, money, and administrative effort. So, saving them for the end of the process pending the results of the other checks will enable you to avoid having to do them for applicants who aren’t qualified anyway.

Example: Texas fair housing consultant Ann Sadovsky relays the story of an owner/client facing an applicant who wanted to share the apartment with an unusual and highly undesirable pet, a 500-pound hog. “The poor client was all upset about a messy fight over the community’s no-pets policy,” Sadovsky relates. “I told him not to sweat it until after the applicant got a clear credit and rental history report.” In fact, he didn’t—and the hog issue became completely moot.

“Not that I’m comparing a hog to a person with a criminal record, but the principle of not bothering to engage with an applicant on an issue until verifying that he or she’s qualified to rent from you applies to criminal background checks,” notes Sadovsky.

Rule #3: Establish Clear, Nondiscriminatory Guidelines for Criminal Record Checks

Relying on third-party screening companies to perform actual criminal record checks the way most owners do will spare you the headaches of gathering the data yourself. But it’s how you use that data that will determine your liability. Specifically, you must make consistent, reasonable, and nondiscriminatory decisions about whether to reject applicants because they have a criminal background. The remaining rules in this lesson are designed to help you create and implement rental policies enabling you to meet that crucial compliance challenge.

Let’s start with the general rules governing when denying housing opportunities to people with a criminal record runs afoul of the FHA. The HUD guidance sets out three key questions owners should ask to evaluate whether their criminal record check policies are legally sound:

1. Does the policy have a discriminatory effect? As we explained above, excluding applicants for having a criminal record may have the effect of discriminating. But in a court or HUD administrative proceeding, the person claiming discrimination has the burden of proving that the policy under question actually does cross the line.

The most common way to show discriminatory effect is by using national, state, and/or local statistics showing that African Americans, Hispanics, and other minorities have disproportionately high arrest and conviction rates, as compared to white persons. While it doesn’t necessarily prove that a particular policy had a discriminatory effect, the HUD guidance suggests that such statistical evidence is generally enough to deny an owner’s motion to dismiss and allow the case to go to trial. And that’s crucial because it changes the negotiating leverage and pressures the owner to shell out a substantial sum of money to settle the case. 

By the Numbers:

Using Statistics to Prove Discriminatory Effect

HUD cautions owners to be aware of the discrimination risks associated with rental policies that exclude applicants because they have a criminal background. The guidance cites national statistics showing that racial and ethnic minorities face disproportionately higher rates of arrest and incarceration. According to those statistics, African Americans and Hispanics are arrested at a rate of more than double and incarcerated at a rate of nearly three times their proportion of the general population. Imprisonment rates for African-American males is almost six times greater than for white males, and for Hispanic males, it’s over twice that for non-Hispanic males.

Keep in mind that these are just national statistics. State and local statistics exhibiting similar patterns may be even more compelling in demonstrating that criminal record exclusion has a disproportionate and discriminatory effect on minorities. And, of course, most devastating of all to an owner is statistical evidence showing that the particular community’s policies had the effect of excluding minorities.

2. Is the policy necessary to achieve a substantial, legitimate, and nondiscriminatory interest? The second crucial question is whether a policy of denying housing to people with a criminal record is necessary to achieve what HUD refers to as a “substantial, legitimate, and nondiscriminatory interest” (which we’ll refer to as the “substantial interest standard”). Explanation: As noted above, it’s legitimate for owners to want to keep dangerous people out of their community. But, the guidance warns, this general interest and bald assertions based on stereotypes that individuals with criminal arrests and convictions pose a greater risk than people without criminal records isn’t enough. To justify exclusion on the basis of a criminal record, the owner must be able to prove that the policy actually does assist in protecting resident safety and property. Accordingly, blanket policies won’t work, and owners must make decisions based on the particular circumstances of the case, including how long ago the crime happened and what kind of conduct it involved. We’ll delve into these crucial details below.

3. Is there a less discriminatory alternative available? Even if the owner can show that its criminal record policy meets the substantial interest standard, it may still be unlawful if the person complaining can prove that the owner could have served that interest by adopting another policy or practice that has a less discriminatory effect. As we’ll discuss in Rule #7, such alternatives may include performing an individualized assessment of applicants found to have a criminal record.

Rule #4: Don’t Impose a Blanket Ban on Applicants with a Criminal Record

Now let’s talk about the specific things you can do to ensure that your own policy meets the criteria we explained in Rule #3. First rule of thumb: Don’t implement predetermined, blanket rules, such as automatically rejecting any applicant with a criminal record.

Remember that all forms of criminal conduct won’t satisfy the substantial interest standard justifying denying a person housing because of their criminal records. Thus, blanket policies that treat all criminal conduct the same way are highly problematic. They also make you a sitting duck for a statistical analysis showing that minorities are more apt than white persons to get arrested or convicted of a crime as compared to their percentage of the general population.

Example: A New York City community rejected an African-American applicant after learning of his felony conviction. The community claimed that its policy of automatically rejecting anyone with a felony conviction was nondiscriminatory because it applied to all applicants regardless of race, etc. The applicant conceded that the policy was neutral on its face but contended that it had the effect of racial discrimination, citing “empirical evidence showing that nationally, and in New York State, blanket bans on eligibility, based on criminal history, result in the denial of housing opportunities at a disproportionate rate for African Americans and minorities.” Although the applicant would still have to prove his claim at trial, the court found that the statistical evidence was enough to warrant holding a trial and dismissed the owner’s motion to dismiss [Jackson v. Tryon Park Apartments, Inc. et al, No. 6:2018cv06238 - Document 17 (W.D.N.Y. 2019)].

Rule #5: Reject on the Basis of Criminal Convictions, Not Arrests

While you must make decisions about whether to rent to applicants with criminal records on a case-by-case basis, there are a few bright line rules. One of them is that rejection is justified only when applicants have actually been convicted of a crime; merely being arrested isn’t enough.

Explanation: As the HUD guidance explains, an arrest, on its own, is merely an accusation and doesn’t prove that the person actually did anything wrong. Under our justice system, defendants are presumed innocent. To establish guilt, the criminal prosecutor must persuade the court or jury to convict by proving the charge beyond a reasonable doubt. Many people who get arrested are acquitted; others get their charges dropped and don’t even go to trial.

The problem with arrest records is that they often don’t show how the case was decided and whether the individual was prosecuted, convicted, or acquitted of the charges. As a result, the guidance clearly states that an arrest is not a reliable basis for determining whether a particular individual poses a potential risk to safety or property in applying the substantial interest standard.

Exception: There’s some wiggle room for eviction when a criminal background screening reveals an arrest. What you can do, according to legal experts, is ask about the underlying facts of the case. And even if the arrest hasn’t yet resulted in a conviction or conclusive and final finding of guilt, you may still be able to reject the applicant if:

• The applicant admits to committing a crime; or
• The police or other witnesses provide reliable and legally admissible information showing that a crime was committed.

Rule #6: Distinguish Between Dangerous and Non-Dangerous Convictions

The mere existence of a conviction isn’t enough to get you over the substantial interest hurdle. That’s because all crimes aren’t the same. The owner’s responsibility, the guidance clarifies, is to distinguish between criminal conduct that does indicate a risk to resident safety or property, and criminal conduct that doesn’t rise to that level. The good news is that the guidance sets out clear criteria for making such determinations:

Felonies vs. misdemeanors. The crime must be serious. And while the guidance doesn’t expressly say this, the consensus is that the conviction must be for a felony rather than a misdemeanor. But, as the NYC owner learned in the Jackson v. Tryon Parks Apartments case discussed in Rule #4 above, a blanket rule excluding any person with a felony conviction doesn’t work. The owner must take other factors into consideration.

Type of felony. The next factor to consider in applying the substantial interest standard is the nature of the felony a person was convicted of committing. Although the guidance doesn’t specify the types of felonies that owners may reasonably consider as posing a danger to safety and property, legal experts and case law suggest that the list includes convictions for:

• Illegal manufacture or distribution (but not mere possession) of drugs and other specified controlled substances;
• Sexual assaults;
• Other violent crimes like homicide, assault and battery, domestic violence, robbery, and false imprisonment; and
• Arson, vandalism, and other crimes causing significant damage to property.

How long ago the person committed the felony. The other key factor is how much time has passed. The more recent the conviction, the greater the justification for considering the person who committed it as posing a risk of danger to safety and property. Based on court cases, the unofficial window is seven years. Exception: Sexual assault convictions don’t have a shelf life. In other words, they may be grounds for denying an applicant housing regardless of how long ago they occurred.

Rule #7: Assess Each Felony Conviction Case Individually

Following Rules #4, #5, and #6 should enable you to ensure that your criminal background screening policy meets the first two of the three HUD standards, namely, the discriminatory effects and substantial interest standards. But the HUD guidance says there’s one more thing you should do to meet the third standard—that is, lack of less discriminatory alternatives: Incorporate a process for assessing each case individually that takes into account mitigating factors explaining why the person has a criminal record, such as:

• The circumstances surrounding the criminal conduct;
• How old the person was when he or she engaged in the conduct;
• Evidence that the individual has maintained a good tenant history before or after the conviction or conduct; and
• Evidence of rehabilitation efforts.

Example: A Pennsylvania public housing authority rejected an African-American applicant after the criminal records check revealed that he had pleaded guilty to involuntary manslaughter under its policy calling for mandatory denial of persons convicted of homicide offenses. The applicant claimed that the policy discriminated on the basis of race, applying the same basic logic that the applicant in the Jackson v. Tryon Parks Apartments case used to beat back the owner’s motion to dismiss. But this time the argument didn’t work.

The difference: The PHA gave rejected applicants 30 days to dispute the accuracy and relevancy of the information on which a mandatory denial was based. During the hearing, the applicant clarified that the conviction was for a misdemeanor rather than a felony. As a result, the PHA reversed its decision on the criminal conviction rejection. The problem for the applicant was that the PHA had a second reason for rejecting him, namely, a judgment awarding his previous landlord $871 in unpaid rent. And since the applicant didn’t present any evidence or mitigating information about the nonpayment judgment, the court found that the PHA had a legitimate, nondiscriminatory reason to reject the applicant and tossed his discrimination claim [Hall v. Philadelphia Housing Authority, Civil Action No. 17-5753, U.S. District Court, E.D. Pennsylvania, April 5, 2019].

Rule #8: Apply Your Screening Policy Consistently

So far, we’ve been talking about unintentional discrimination on the basis of discriminatory impact. But be aware that rejecting applicants because they have a criminal record may also constitute intentional discrimination. This can happen if you apply your policy inconsistently to people with comparable criminal histories differently based on their race, national origin, etc.

Example: A federal court ordered a Tennessee community and its property management company to pay $42,250 in damages for selectively applying its policy of disqualifying people with felony convictions to minority applicants. The evidence showed that the defendants denied an African-American applicant because of his criminal record while approving the applications of two white applicants with similar, and what should have been disqualifying, felony convictions [U.S. v. Dyersburg Apartments, Ltd., (W.D. Tenn.), Aug. 13, 2019].

The guidance lists other examples of inconsistent application of criminal records policies and practices showing intentional discrimination:

• A community has a policy against renting to people with certain convictions, but makes an exception for white, but not African-American, applicants; and
• A leasing agent helps a white applicant get his application approved despite his potentially disqualifying criminal record, but doesn’t provide the same assistance to an African-American applicant.