I have heard from a couple of clients (and potential new clients) recently after they received either a demand letter or lawsuit (or both) asserting their property violated the Fair Housing Act (FHA) related to criminal background screening. The letter from counsel asserts that an applicant tried to rent an apartment and was rejected because the potential applicant has a criminal record. If form holds, the potential applicant also notes he or she is a minority (such as African American or Hispanic), in an effort to further claim that management’s criminal screening criteria has a “disparate impact” against minorities as a higher percentage of a given protected class has historically been incarcerated.
Remember, criminal (and credit) background screening remains a best practice for professional apartment management. But where we can get into trouble is if our screening criteria is exceptionally broad (such a no felonies permitted). While a no felonies rule might make sense at first glance, in the current environment, we need to be a little more nimble than that. Here’s why.
An argument exists that banning people with all felony convictions for all time is not appropriately tailored and does not meet the legitimate needs of the property. The Obama Administration attempted to put such a prohibition in place. The Trump Administration pulled it back or declined to enforce it. While I am not suggesting that management should open up apartment homes to child molesters and sex offenders (offenses for which lifetime bans remain appropriate), there are other offenses which the passage of time could make a difference in our perception of an applicant. Similarly, not all offenses rise to the same level and a good practice could be to have different burn off times depending on the specific type of offense.
And if you tailor your criminal background policy with features like this, it will be easier for a lawyer like me to defend it if a demand letter and/or complaint arrives asserting discrimination.
Just A Thought.
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