Reduce Risk When Using Criminal Background Checks

A picture of a criminal background check form on a clipboard.

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Several housing providers have recently faced lawsuits that allege the misuse of criminal histories in housing decisions. A recent “Window to the Law” video, posted at the National Association of REALTORS®’ website, highlights best practices in order to avoid a fair housing violation when factoring in criminal background checks.

In Florida, up to 48 housing providers have been sued for alleged improper criminal background screening of prospective tenants. In New York, a housing provider recently settled a lawsuit for more than $1 million after it was accused of having a ban on renting to people with criminal records.

In 2016, HUD issued guidance to urge housing providers to be careful when having criminal history policies in making housing decisions. They reported that African Americans and Hispanics are arrested, convicted, and incarcerated at disproportionate rates compared with the general population. That could result in criminal history disproportionately affecting minorities.

“While persons with criminal records are not a protected class under the Fair Housing Act, race, color, and national origin are, and the improper use of criminal history to make housing decisions may have a disparate impact on those protected classes,” Maame Nyamekye, staff attorney at NAR, says in the video.

In the video, Nyamekye offers some of the following guidelines when using criminal history to make housing decisions:

  • Have a written criminal history policy.
  • Apply criminal record policies consistently.
  • Do not ask or consider arrests without convictions.
  • Avoid blanket bans on applicants with a criminal conviction.
  • Document housing decisions.

View all the tips in the latest Window to the Law video.