The Dos & Don'ts of Conducting Criminal Background Checks

This month’s lesson takes a look at a “hot topic” in fair housing circles: the use of criminal background checks in screening prospective residents.

     The practice of using criminal records data to screen applicants is now commonplace in conventional housing communities—even required in federally assisted and public housing communities. Housing providers have the right—indeed the obligation—to protect property and residents from criminal activity on the premises, and face potential liability for damages for failure to do so.

     Among the strategies used to reduce the risk of criminal activity is to screen out potential residents with a criminal history. The rationale is that individuals with a criminal record are more likely to commit a crime than those who don’t; therefore, the use of a criminal background check to exclude anyone with a criminal record will reduce the risk that a resident will commit a crime for which the community could be held liable.

     While acknowledging that communities have legitimate reasons to safeguard their property and residents, many question the fairness of using criminal background checks to exclude potential residents. The practice affects a growing number of prospective residents: Over the past 20 years, there has been a sharp increase in the number of Americans who have had contact with the criminal justice system, meaning a significant increase in the number of people with a criminal history.

     Due to technological advances, it’s easier than ever to access criminal records data. But some argue that criminal records databases are rife with incomplete, inaccurate, or outdated information. Others raise concerns about how far criminal background checks should go—whether they should include arrests as well as convictions, minor as well as serious crimes, and old as well as recent criminal activity.

     Meanwhile, many have raised concerns about the use of criminal background checks under federal civil rights laws. In a nutshell, the issue is whether the exclusionary policies based on criminal background checks have an unfair effect—in legal parlance, a disparate impact—on African Americans and Hispanics, who are protected under federal civil rights laws governing employment and housing.

     The law recognizes at least two types of illegal discrimination: disparate treatment (intentional) and disparate impact (unintentional). Most people recognize that intentional discrimination is prohibited by civil rights laws, but they may be unaware that it’s possible to have “unintentional” discrimination, such as when a rule or leasing policy that applies to everyone tends to affect a protected group or minority more than others. Usually, this kind of unintentional discrimination (disparate impact) has to be proven using statistical evidence.

     The issue has gained traction in the employment arena. Just last month, the Equal Employment Opportunity Commission (EEOC) addressed these concerns about the use of criminal arrest and conviction records in employment decisions. Among other things, the EEOC’s new enforcement guidance recognized that exclusionary criminal records policies may have a disparate impact based on race and national origin.

     In the housing arena, there has been little guidance on the use of criminal background checks in conventional housing communities. Neither HUD nor the courts have formally addressed the issue under federal fair housing law. While a few states limit the use of criminal records in housing and employment decisions, only a handful of local governments have added fair housing protections for individuals with criminal records.

     Nevertheless, it may be a good time to review your community’s policies and practices when it comes to the use of criminal background checks while screening potential residents. Courts often look to employment discrimination law in deciding fair housing cases, so the EEOC’s action may be a sign of things to come.

     In this issue, we’ll review the use of criminal background checks and offer six dos and don'ts to avoid potential fair housing problems—now and in the foreseeable future. Then, you can take the COACH’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability.

     In general, the FHA bans housing practices that exclude or otherwise interfere with the right of protected individuals to live where they choose. The law outlaws two broad categories of discriminatory housing practices:

     Disparate treatment. In general, disparate treatment claims arise from intentional discrimination—treating people differently because of a protected characteristic. An example would be to subject some applicants (for example, only African Americans), but not all (such as Caucasians), to criminal records checks based on their race or other protected characteristic, explains Atlanta-based fair housing attorney Robin Hein. This would be an obvious case of racial discrimination. Another would be to require all applicants to undergo a criminal background check but to apply it differently, depending on a protected characteristic—that is, to strictly enforce a policy to exclude anyone with a criminal history against African-American applicants, but to make exceptions for white applicants with similar criminal histories. 

     Disparate impact. In contrast, disparate impact claims do not require discriminatory intent—they involve policies that, while neutral on their face and uniformly applied, have a discriminatory effect on members of a protected class. So, even though the rule applies the same to everyone, it has a much greater and adverse effect on certain groups. Many advocates argue that rental qualification policies that exclude applicants based on criminal background screenings have a disparate or unfair impact or effect on African Americans and Hispanics—who are protected from discrimination based on race and national origin under federal civil rights laws.

     This argument has taken hold in the employment arena. The EEOC’s new guidance cites statistical evidence that arrest and incarceration rates are particularly high for African Americans and Hispanics, who are arrested at two to three times their proportion in the general population. In particular, African Americans and Hispanics are more likely than whites to be arrested, convicted, or sentenced for drug offenses, even though their rate of drug use is similar to the rate of drug use for whites. Furthermore, statistics show that African Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population. The EEOC concluded that such national statistical data “supports a finding that criminal record exclusions have a disparate impact based on race and national origin,” which would open the door for an investigation of an employment discrimination claim.

     But housing is a different matter. For one thing, it’s covered under a separate law—the FHA—which, unlike its employment law counterpart, does not expressly recognize disparate impact claims. Moreover, the U.S. Supreme Court has officially acknowledged that the federal law banning employment discrimination covers disparate impact claims, but it has not ruled on whether the same is true under the FHA. Late last year, the Court was poised to consider an FHA disparate impact claim, but the case was withdrawn shortly before a scheduled hearing.

     Around the same time, HUD released a proposed rule to formally adopt its longstanding policy that the FHA prohibits housing practices that have a discriminatory effect, even where there has been no intent to discriminate. Noting that federal courts across the country have recognized such claims—and the Supreme Court’s approval of such claims under employment law—HUD states that it is “well established that liability under the Fair Housing Act can arise where a housing practice is intentionally discriminatory or where it has a discriminatory effect.”

     Although the time for public comment on the proposed rule ended earlier in January, HUD hasn’t formalized the proposed rule to date.

     So where does that leave community owners with respect to criminal background checks? At present, having a criminal record is not a protected characteristic under the FHA or any state law. A few states place limits on the use of certain criminal history in housing decisions, but only a handful of local governments have added fair housing protections to individuals based on arrest and conviction records. Subject to those exceptions, it isn’t unlawful under fair housing law to conduct criminal background checks in screening potential residents.

     Nevertheless, it may be risky to adopt an overly broad criminal screening policy. Although neither the HUD proposed rule nor the EEOC guidance are officially binding on housing providers, they may serve as guideposts to help your community use criminal records checks in a way that both helps ensure safety while satisfying fair housing concerns.

     Editor's Note: If your community receives HUD or other government financing, see "Criminal Screening in HUD-Assisted and Public Housing Communities," in the Archives for this June 2012 issue.

 

6 RULES FOR CONDUCTING CRIMINAL BACKGROUND SCREENINGS: ESSENTIAL DOS & DON’TS

RULE #1:

DO Review Your Policies on Criminal Background Checks

DON’T Apply Overly Broad Criminal Screening Standards

Federal fair housing law allows communities to require applicants to meet "reasonable rental qualifications" before approving occupancy and signing a lease, says attorney Hein. The most common rental requirements are good employment and income, rental history, and credit—and, of course, having a satisfactory criminal background.

     As technology has expanded the scope of information available online, so too have practices on criminal background checks. As the EEOC noted, sources of criminal history include courthouse records, law enforcement and corrections agency records, sex offender registries and watch lists, and state criminal record repositories. Subject to varying legal restrictions, much of this information is online and available to the public. 

     Community owners and managers can access much of this information on their own—or, more commonly, using the services of a tenant screening service. Those services are regulated by a federal law—the Fair Credit Reporting Act (FCRA)—which generally bars reporting of records of arrests that occurred more than seven years ago, but allows reporting of convictions indefinitely.

     Although the FHA doesn’t specifically prohibit a rental policy of denying housing to someone with a criminal record, an overly broad policy to exclude anyone with a criminal record could present fair housing problems.

COACH's Tip:

Another reason to exercise caution when doing criminal background is the questionable accuracy of the information in governmental criminal records databases—and in reports issued by background screening companies. The EEOC noted studies showing that a significant number of state and federal criminal records databases included incomplete or inaccurate information—for example, arrests in which the charges were later dropped—or information that isn’t supposed to be open to the public, such as sealed, expunged, or juvenile criminal records. Meanwhile, the National Consumer Law Center (NCLC) last month released a report citing similar problems in pre-employment reports issued by criminal background reporting services. According to the NCLC, those reports routinely mismatched people, omitted crucial information, revealed seals or expunged information, provided misleading information, or misclassified offenses.

RULE #2:

DO Adopt Reasonable Criminal Background Screening Standards

DON’T Exclude Everyone with a Criminal Record

Review your policies in light of growing concern about the fairness of using criminal background checks to screen out applicants for rental housing. If HUD follows the EEOC’s lead to conclude that the practice has a disparate impact on African Americans and Hispanics, then it will be up to housing providers to defend their screening criteria.

     Courts have set differing standards in disparate impact claims under fair housing law, but HUD's proposed rule provides guidance to communities in what would be required to defend a claim involving criminal background checks. Under the proposed rule, a housing practice found to have a discriminatory effect may still be lawful if it has a “legally sufficient justification.” That means that the policy has: (1) a necessary and manifest relationship to the community’s legitimate nondiscriminatory interests; and (2) those interests cannot be served by another practice that has a less discriminatory effect. Moreover, a legally sufficient justification may not be hypothetical or speculative.

     Applying that standard to criminal records checks, a community that requires applicants to undergo a criminal background check should be prepared to show that its criteria are reasonably related to legitimate business interests—that is, preventing criminal activity and protecting residents’ safety and property. Excluding anyone with a criminal record—no matter the offense or how long ago it occurred—may not satisfy that standard.

     Despite legitimate reasons for screening out anyone posing a danger to your property or residents, there are less discriminatory alternatives to excluding anyone with a criminal record. Moreover, the theory that anyone who was ever arrested or convicted of any crime poses a risk to a community’s property or its residents would be considered hypothetical or speculative without evidence to support it.

     To pass muster under HUD's proposed rule, housing providers would need to show they have a legally sufficient justification for screening standards that exclude applicants based on their criminal history. That is, the screening criteria must satisfy the community’s legitimate business reasons for conducting criminal background checks: to safeguard its property and residents from criminal activity. In general, that means limiting disqualifying criminal records to those most likely to pose such a threat based on the nature, severity, and age of past criminal activity.

     Hein urges communities to set reasonable policies about what crimes may disqualify the applicant or resident from living there. It’s important to decide what crimes will be considered unacceptable and result in denial of the rental application, he says. Some crimes that are old or misdemeanors may not be significant enough to consider the applicant a future risk. The more severe and recent the crime, the more likely it will be a bar to living at the rental property.

RULE #3:

DO Consider Curbing Use of Arrest Records

DON’T Rely Solely on Arrest Records to Exclude Applicants

Of all the criminal records available, arrest records present the most problems in setting standards for screening out potential residents.

     Most important, the fact of an arrest doesn’t establish that criminal conduct has occurred, according to the EEOC, which pointed out that arrests are not proof of criminal conduct. Many arrests don’t result in criminal charges, or the charges are dismissed. Even if an individual is charged and subsequently prosecuted, he is presumed innocent until proven guilty.

     In contrast to arrests, a record of conviction will usually serve as evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas, according to the EEOC. Consequently, it’s less risky to take a tougher stance based on criminal convictions than on arrests.

     But that doesn’t mean that communities must simply ignore arrest records. Arrest information can be relevant based on the conduct underlying the arrest. In employment screening, the EEOC said that the conduct underlying an arrest may make an individual unfit for a position—for instance, a school employee arrested and charged with sexual abuse of children.

     By analogy, housing communities may consider excluding applicants based on recent arrests for certain types of behavior, such as violent crime or destruction of property, which are relevant to the risk they may pose to community property and other residents. In contrast, it’s more difficult to defend exclusions based on arrest records for traffic incidents, financial improprieties, or minor offenses that may have little or no bearing on an individual’s fitness for living in the community.

     In any event, set time limits for consideration of arrest records. Hein warns against using arrest records older than seven years—the limit imposed by the FCRA on tenant screening services for reporting arrests. Not all arrests are prosecuted, and some may remain pending for many years without a trial, he says. Moreover, the records may be out of date and may not reflect that charges have been dropped or otherwise resolved without an admission of guilt.

RULE #4:

DO Check State and Local Laws

DON’T Ignore Restrictions Limiting Disclosure or Use of Criminal Records

Check with an attorney in your state to ensure that your policies regarding criminal background screening pass muster under state and local laws.

     Only a few go so far as to protect criminal history under fair housing laws. At last count, five jurisdictions—Madison, Appleton, and Dane County in Wisconsin, and Urbana and Champaign in Illinois—have passed ordinances that prohibit housing discrimination on the basis of arrest and conviction records. Similar measures were under consideration by officials in Seattle and San Francisco last year.

     The ordinances vary, but most allow an exception for conviction records related to violent and drug-related crimes or offenses that bear a substantial relationship to the tenancy—that is, are related to property or safety concerns. But even the exceptions are subject to time limits—in some cases for only two years after the person was released from incarceration, paroled, or paid a fine for the offense.

     More broadly, an array of state and local laws may restrict access to certain types of criminal records history or limit or prohibit the use of criminal records history in connection with housing (or more commonly of late) employment decisions.

     State privacy laws may be a roadblock to access or use of criminal records. In California, where its constitution guarantees a right to privacy, the law bans the use of information from its sex offender registry for numerous purposes, including housing. Nevertheless, state officials have concluded that the restrictions on sex offender registry information doesn’t make sex offenders a protected class for purposes of housing discrimination under state fair housing law. (Nor does it trump the federal law imposing a lifetime ban on registered sex offenders in public and HUD-assisted housing, according to fair housing experts.)

     Housing providers with multiple properties should get legal advice to ensure their policy on criminal background screening complies with the law in all applicable jurisdictions. A one-size-fits-all approach may not work if properties are subject to state or local laws that impose different restrictions on the disclosure and use of criminal records.

RULE #5:

DO Apply Criminal Background Screening Consistently

DON’T Ignore Requests to Consider Mitigating Circumstances

Whatever your policy on criminal background screenings, it’s essential to apply it consistently to all applicants and adult occupants. It’s unlawful for a housing provider to run criminal background checks only on members of protected classes or to use the results to reject applications from members of protected classes, while overlooking similar results for other applicants.

     In addition, it’s advisable to avoid even the appearance of discriminatory motives by ensuring that applicants know up front about community policies on criminal background screening. Standard lease forms include language to advise and get consent from applicants regarding criminal background checks, but it’s a good practice to explain the specifics about the criteria used to deny applications based on criminal history. A prospect may choose to avoid incurring the expenses associated with filing an application if he knows that his application will be rejected, for example, because of his recent release from incarceration on felony charges. Otherwise, a prospect may feel betrayed—and suspect discriminatory motives—if the leasing consultant allows him to go to the expense of filling out an application while knowing in advance that it will be rejected.

     Knowing the policy up front also allows applicants to offer documentation of rehabilitation or other mitigating factors. Particularly important would be any suggestion that a prior criminal history is related to a disability—such as an assault due to an untreated mental illness. In this case, a request to make an exception to criminal screening rules could be considered a request for a reasonable accommodation.

     Fair housing law imposes a duty on communities to take such requests seriously, although the law doesn’t require communities to admit current drug users or anyone “whose tenancy would constitute 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.” Because of the complexities of reviewing such a request, it’s a good idea to get legal guidance to help ensure compliance with fair housing requirements.

RULE #6:

DO Send Proper Notice of Application Rejection

DON’T Ignore State and Federal Notice Requirements

If you reject an application based on the results of a criminal background check, you must notify the applicant of the decision as required under federal and state law. Attorney Hein says that an “adverse action letter” should be sent to every rental applicant whose application is denied. It’s required under the FCRA and the FHA, he explains.

     Under the FCRA, denial of a rental application because an applicant has a criminal conviction or arrest is an "adverse action." When the application is denied, management must give notice to the applicant with information about the name and contact number of the consumer reporting agency that provided the information and how to contact the agency to dispute the accuracy of the information.

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

COACH Sources

F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 South Plymouth Court, Suite CBA-800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood & Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.

D. J. Ryan: Fair Housing Specialist, Director of Client Education, Kimball, Tirey & St. John LLP, 7676 Hazard Center Drive, #450, San Diego, CA 92108; (619) 234-1690; DJ.Ryan@KTS-LAW.com.

Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.