HUD Warns Against Blanket Bans of Ex-Offenders from Rental Housing

In recently released guidance, HUD tells owners that turning down tenants based on their criminal records may violate the Fair Housing Act. People with criminal records aren't a protected class under the Fair Housing Act, and the guidance from HUD's general counsel says that in some cases, turning down an individual tenant because of his or her record can be legally justified. But according to HUD, blanket policies of refusing to rent to anybody with a criminal record are de facto discrimination because of the systemic disparities of the American criminal justice system.

The new federal housing guidance applies a legal standard that was upheld by the United States Supreme Court last year that allows plaintiffs to challenge housing practices that have a discriminatory effect without having to show discriminatory intent. The ruling allows plaintiffs to show instead that the practices both have a “disparate impact” on racial groups and are not justified. Blacks and Latinos are arrested, convicted, and imprisoned in disproportionate numbers, and civil rights groups say they face equally disparate discrimination in finding housing.

Federal officials said owners must distinguish between arrests and convictions and cannot use an arrest to ban applicants. In the case of applicants with convictions, owners must prove that the exclusion is justified and consider factors like the nature and severity of the crime in assessing prospective tenants before excluding someone.