When conducting criminal background screenings for potential tenants, landlords and property managers must ensure they comply with the Fair Housing Act (FHA). The U.S. Department of Housing and Urban Development (HUD) has provided guidelines to prevent discrimination while still allowing landlords to maintain safe communities.
Here’s how to conduct criminal screenings without violating FHA rules.
1. Understand FHA and HUD Guidelines
The Fair Housing Act prohibits discrimination based on race, color, religion, sex, disability, familial status, or national origin. In 2016, HUD issued guidance stating that blanket policies rejecting applicants with a criminal record could lead to disparate impact discrimination, which is illegal under FHA rules.
HUD emphasizes that while landlords have the right to ensure the safety of their properties, they must do so in a way that does not disproportionately impact certain groups. Instead of a one-size-fits-all approach, landlords must implement nondiscriminatory policies that align with fair housing principles.
2. Avoid Blanket Bans on Criminal History
Landlords should not implement policies that automatically deny applicants with any criminal record. Instead, they should consider factors such as:
- The nature and severity of the offense
- The time elapsed since the conviction
- Whether the conviction is relevant to the safety of residents
3. Focus on Convictions, Not Arrests
HUD has clarified that using arrest records alone as a basis for denial is discriminatory. Arrests do not prove guilt, so landlords should only consider convictions when assessing applicants.
Additionally, landlords should differentiate between felonies and misdemeanors and assess the relevance of the conviction to tenancy. For example, a nonviolent offense from many years ago should not carry the same weight as a recent, violent crime.
4. Conduct an Individualized Assessment
Rather than rejecting applicants outright, landlords should conduct an individualized review of each applicant’s circumstances. This should include:
- Evaluating the applicant’s rehabilitation efforts
- Considering their rental history and employment status
- Allowing the applicant to provide additional context
5. Be Consistent and Document Decisions
To avoid claims of discrimination, landlords should ensure consistent application of screening policies. Documentation should include:
- The specific offenses considered
- The reasoning behind denial or acceptance
- How each case was assessed fairly
6. Provide an Opportunity for Appeal
Offering a review or appeal process allows applicants to present mitigating factors or evidence of rehabilitation. This practice helps ensure fairness and transparency. If an applicant believes they were denied unfairly, they should have the right to challenge the decision and present supporting documentation.
An appeal process can also help landlords avoid potential discrimination claims, as it demonstrates a willingness to evaluate applicants on a case-by-case basis rather than enforcing rigid, exclusionary policies.
7. Stay Updated on Fair Housing Regulations
Fair housing laws can evolve, so landlords should regularly update their policies and training. Attending Fair Housing webinars can provide essential updates on compliance and best practices. Webinars and legal training sessions help landlords understand new regulations, case law, and best practices for tenant screening.
Regulatory agencies and fair housing organizations frequently update their guidelines, so staying informed ensures landlords remain compliant and avoid unnecessary legal risks.
8. Work with Legal Counsel or Compliance Experts
Consulting legal experts or compliance professionals can help landlords ensure that their policies align with FHA rules while still protecting their property and tenants. Fair housing attorneys and compliance consultants can provide tailored guidance to ensure that tenant screening policies do not unintentionally violate anti-discrimination laws.
Conclusion:
Property managers can efficiently handle essential tasks when tenants are onboarded with a well-designed onboarding checklist. At the top of this checklist should be conducting criminal screenings. By following guidelines given above, landlords can create a fair, legally compliant, and safe housing environment for all applicants. Conducting criminal background screenings responsibly ensures that rental decisions are based on legitimate concerns rather than discriminatory practices. Staying informed through Fair Housing webinars and consulting with compliance professionals can help landlords navigate legal complexities while maintaining a secure and inclusive community.
