1.3.4 Criminal Background

The Fair Housing Act prohibits discrimination in the rental of housing based on race, color, religion, sex, disability, familial status or national origin.1  Although tenants with a criminal record are not among the FHA’s protected classes, an admissions policy may be discriminatory and prohibited by the Act if it has a disparate impact on a protected class.2

In 2016, HUD’s Office of General Counsel issued guidance on the relationship between the use of criminal records and the FHA. The guidance argues that criminal history-based housing restrictions may disproportionately impact racial minority groups since these groups are convicted and incarcerated at higher rates than the general population due to discrimination in the criminal legal system.3  The guidance concludes that the FHA prohibits blanket housing restrictions based on a tenant’s criminal history. Instead, owners should conduct an individualized assessment considering the time, nature, and extent of any conduct and to factors that might indicate a reasonable probability of favorable future conduct.4  Because the guidance is based on the FHA, it is applicable to both private and federally-subsidized landlords. Courts have positively cited the HUD analysis to support a disparate impact claim.5

If a landlord covered by the FHA refuses to rent to an applicant due to the applicant’s criminal history, the applicant should request an individualized assessment in writing. That request should include an explanation of why the criminal charges have no bearing on the applicant’s current conduct as a tenant and any mitigating circumstances surrounding the charge.

• 142 U.S.C. § 3601, et seq. For additional discussion of the FHA, see Section 13.
• 2Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 576 U.S. 519 (2015).
• 3U.S. Dep’t of Hous. & Urb. Dev., Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (2016).
• 4Id.
• 5Conn. Fair Hous. Ctr. v. CoreLogic Rental Prop. Sols., LLC, 369 F. Supp. 3d 362 (D. Conn. 2019) (denying defendant’s motion to dismiss where the housing provider denied an applicant based on a single arrest record); Fortune Soc’y v. Sandcastle Towers, 388 F. Supp. 3d 145 (E.D.N.Y. 2019) (denying a defendant’s motion for summary judgment where housing provider banned admission to any individuals who had ever had a felony conviction).