HUD issued fair housing guidance on April 4 that extends protections for individuals with criminal histories. This guidance builds on similar policies issued by HUD last year that only applied to public and federal-assisted housing. Most notably, the new guidance prohibits the use of arrest records to deny residency and denials based on convictions must consider the nature and severity of the incident.
Overall, the guidance seeks to end blanket exclusions of prospective residents based on criminal history in favor of a more individualized approach that is more narrowly tailored to achieve property safety and security goals.
NMHC’s Paula Cino was quoted in a related Wall Street Journal article, which was published the same day as the fair housing guidance was issued. “We all want to feel safe in our homes,” emphasized Cino. “It is critical to balance the housing needs for everybody with providing a safe and secure community.”
Importantly, while those with criminal histories are not a protected class under the Fair Housing Act (FHA), HUD has crafted the policy using disparate impact theory. Disparate impact allows fair housing complaints to proceed where actions have a discriminatory result even if there was no intent to discriminate.
NMHC/NAA raised questions about the operational impacts of disparate impact theory in last summer’s U.S. Supreme Court ruling, which identified this and other screening practices as a potential source for FHA liability.
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