In this episode, Clementine Deck (she/they), HOME's Policy & Research Coordinator, goes over the basics of Fair Housing and Criminal Records. If you'd like to learn more or schedule a training on these issues, please contact HOME's Director of Education, Rebecca Griffin, at rebecca.griffin@homecincy.org or 513-977-2627.
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Disclaimer: The work behind this publication was supported by funding under a grant with the U.S. Department of Housing and Urban Development. The substance and findings of the work are dedicated to the public. HOME is solely responsible for the accuracy of the statements and interpretations contained in this publication. Such interpretations do not necessarily reflect the views of the Federal Government.
Any information or content provided by HOME is for educational purposes only and should not be construed as legal advice or a substitute for legal counsel.
Episode Transcript | Fair Housing Focus: Criminal Records 101 | July 2024
Introduction
Welcome to Fair Housing Focus, I’m Clementine Deck, HOME’s Policy & Research Coordinator and your host for this episode. For those of you that don’t know, HOME, or Housing Opportunities Made Equal of Greater Cincinnati, is a nonprofit fair housing organization working to eliminate unlawful discrimination in housing in the Greater Cincinnati area. HOME advocates for and enforces housing regulations for all protected classes and promotes stable integrated communities.
Today, we’re going to dig into the basics of fair housing and criminal records. Next episode, you’ll hear Rebecca Griffin, HOME’s Director of Education, provide a more detailed explanation of the applicant screening process and how new HUD Guidelines impact that process. But for now, let’s start with the basics. Like understanding what were actually talking about when we use the phrase “fair housing.”
Fair Housing 101
We get the term “fair housing” from the Civil Rights Act of 1968. This legislation and more specifically, Title 8 of the Civil Rights Act, alternatively titled the Fair Housing Act of 1968, made it unlawful to discriminate against members of a “protected class” in housing transactions. These protected classes are Race, Color, National Origin, Religion, Sex (which also outlaws discrimination on the basis of LGBTQ identity or gender expression), Familial Status (i.e. families with children), and Disability.
Fair housing also exists outside of federal law. Ohio and Cincinnati each have their own laws dealing with Fair Housing and they even provide for additional protected classes. When we talk about fair housing, we’re referring to this broad collection of laws, and I need to emphasize that the law will vary depending on where you live and when you’re listening to this podcast.
Now we know what Fair Housing is, but what does it look like when someone is violating the law? Some examples include: refusal to rent or sell housing to someone, refusing to negotiate with someone, setting different lease or contract terms, conditions, or privileges, falsely claiming that housing is unavailable, steering or showing prospective residents properties in one area or avoiding showing them properties in another. It’s important to remember that this is not an exhaustive list, and for the action to violate fair housing law it must be done on the basis of a protected class.
Criminal Records 101
You might be wondering “How do criminal records fit into all of this?” And that’s an excellent question, but before I answer it I think we should go over a bit of background information. Like what’s included in a criminal background check. In Ohio, a criminal background check will include your arrest history, criminal charges, civil criminal history, driving under the influence charges, and sex offender registry status. It’s important to emphasize that criminal background checks don’t just find offenses that you were convicted and found guilty for committing – they also include arrests and charges that have yet to be adjudicated in a court of law. If you’re record hasn’t been expunged, any past charges can appear in the criminal background check. The State of Ohio does not limit how far back a background check can go. The average search goes back seven years, but it varies widely depending on the services used.
Recently, criminal background checks have become a regular component of rental housing applications. For members of our community with a criminal record, these screenings create persistent barriers to obtaining and maintaining housing. These impacts extend beyond the person with a criminal record — their entire family is impacted by their contact with carceral system. Families are often forced to make tough choices between finding safe stable housing and living with or otherwise supporting a family member with a criminal record.
In Ohio, private housing providers have the discretion to deny housing or evict people with criminal records. However, landlords could be subject to civil liability if they apply the policy inconsistently or if that policy has a disparate impact on a protected class. Housing that is supported by federal subsidies, including housing that accepts the Housing Choice Voucher Program, is subject to a variety of strict admission restrictions due to funding and demand. Note that these restrictions can and do change over time.
According to HUD Guidance, a housing provider must prove that their criminal record policy serves a legitimate and substantial interest; this “interest” usually refers to tenant and/or property safety. Under this guidance, blanket bans cannot be used by a landlord because they will be unable to show that their criminal record policy serves a legitimate and substantial interest. While criminal record status is not a protected class under the Fair Housing Act, a landlord cannot use their criminal record policy as an alternative method of discriminating against members of a protected class.
When considering an applicant’s criminal record, HUD Guidance requires a housing provider to conduct an “individualized assessment,” of all relevant mitigating information, including information beyond what is contained in the individual’s criminal record.
Relevant individualized evidence includes:
The facts or circumstances surrounding the criminal conduct;
The nature and severity of the offense;
The age of the individual at the time of the conduct;
Evidence that the individual has maintained a good tenant history before and/or after the conviction or conduct;
Evidence of rehabilitation efforts;
And any other relevant factors.
The core of the individualized assessment is determining whether, based on objective evidence, the individual’s tenancy would pose a direct threat to the health and safety of other individuals or would result in substantial physical damage to the property of others.
That’s a lot of information, so let’s go over two examples to see how this process might play out.
Example: Individualized Assessment and Blanket Bans
A prospective tenant indicates on their application that they were convicted of possessing a small amount of cannabis 10 years ago. Since their conviction, the applicant has had no other criminal history and has evidence to demonstrate that they have been a good tenant. The apartment manager rejects the application based solely on the prior conviction without seeking further information. The manager does not allow for any tenants with a criminal history to rent from them. Is this rejection legal?
This rejection may be unlawful. The manager did not conduct an individualized assessment of the applicant to determine the risks of allowing them to rent. The landlord should have considered the nature, severity, and recency of the crime. HUD Guidance indicates that blanket bans do not serve a legitimate and substantial interest. Moreover, there was no objective evidence that the applicant would have posed a threat to other residents or the property, and thus their criminal record cannot be the sole justification for denial.
Example: Racial Bias – Proxy Discrimination
A property manager hosts an open house event inviting potential residents to view an available unit. The property manager receives two applications following the event. The first application is from a white person and the second application is from a Black person. The property manager runs a background check on the Black applicant but not the white applicant. Is this behavior lawful conduct?
No, because the property manager needs to apply the same process to all applicants. If the property manager wants to use a criminal record check as a part of tenant screening, it must be used to screen all applicants. Singling out a certain applicant or group of applicants for a criminal background check is likely discriminatory. In this example, the criminal background check was used as a proxy or substitute for discrimination on the basis of race, a protected class.
Conclusion
To summarize what we’ve learned – Fair Housing is THE LAW. Everyone is protected by the Fair Housing Act and the law supersedes any covenants, conditions & restrictions, bylaws, board resolutions, insurance conditions, etc. Housing professionals have a legal and ethical duty to follow the law.
When it comes to criminal records, the best practice is to consider each individual on a case-by-case basis. This means considering the nature, severity, and recency of any criminal record. A criminal records policy and the decisions made under that policy must be supported with evidence that it assists in protecting resident or property safety. Remember, blanket bans like saying “no felonies” are not legal because the landlord will be unable to show that their criminal record policy serves a legitimate and substantial interest. Lastly, the same process should be applied to all applicants.
That’s all we have time for today, but if you’re still curious about the applicant screening process, I encourage you to listen to our next episode where HOME’s Director of Education, Rebecca Griffin, is going to provide a more detailed explanation of that process. If you want to learn more about criminal records and fair housing, I encourage you to visit our website, www.homecincy.org, for more resources. That will also be linked in the show notes or description of wherever you’re listening to this episode. If you have any questions don’t hesitate to call HOME – we’re here to help you. That number is 513-721-HOME or 513-721-4663. Thank you very much for listening to this Fair Housing Focus!
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