By Jeffrey A. Rembaum, Esq. / Published September 2022
Imagine this: Harold Homeowner is selling his house located in your community association. Billy Buyer makes application to the board to purchase the unit. However, he is denied because he is a felon with a dark past. Next thing you know, your association is under federal investigation for Federal Fair Housing violations and exposed to tens, if not hundreds of thousands, of dollars of fines. If you think this can’t happen, think again!
Generally speaking, people with criminal records are not a protected class under the Fair Housing Act of 1968. The Act made it illegal to discriminate against people from renting or buying a home, securing a mortgage, or seeking housing assistance on the basis of race, color, national origin, religion, sex, disability, and familial status. On April 4, 2016, HUD’s Office of General Counsel published a memo titled “Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions.” Then, on March 31, 2022, President Biden declared April 2022 as Second Chance Month, emphasizing the importance of helping persons who have had criminal involvement reenter society, reunite with their families, and find stable and safe homes. Just days later on April 12, 2022, HUD Secretary Fudge issued a memorandum instituting an agency-wide effort to review HUD’s programs, its funding recipients, and program participants to ensure they “are as inclusive as possible in favor of individuals with criminal pasts.” Excerpts from the June 10, 2022, HUD memo follow:
Disparities throughout the United States’ criminal justice system are well established and persistent. Blacks represent roughly 13 percent of the total U.S. population but account for roughly 27 percent of all arrests. In 2019, the incarceration rate of Black males was 5.7 times that of White non-Hispanic males, while the incarceration rate of Black females was 1.7 times the rate of White non-Hispanic females. A recent study also reflects that Hispanics are incarcerated in state prisons at a rate that is 1.3 times the incarceration rate of White non-Hispanics. In addition, updated data shows that individuals with disabilities are also disproportionately impacted by the criminal justice system. Research shows that these disparities cannot be simply attributed to certain groups committing more crimes and are better explained by biases in the criminal justice system. These disparities extend to housing. Housing providers frequently employ policies or practices that exclude individuals with criminal involvement from housing, which should raise red flags for investigators.” [emphasis added]
On April 4, 2016, HUD’s Office of General Counsel issued its Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions. This guidance described how to assess claims of illegal discrimination under the Federal Fair Housing Act. It applies to a wide range of entities covered by the Act, including private landlords, management companies, condominium associations or cooperatives, third-party screening companies, HUD-subsidized housing providers, and public entities that operate, administer, or fund housing or that enact ordinances that restrict access to housing based on criminal involvement. HUD advises that using criminal history to screen, deny lease renewal, evict, or otherwise exclude individuals from housing may be illegal under the Fair Housing Act under three different theories of liability:
i) discriminatory intent,
ii) discriminatory effects, and
iii) refusal to make reasonable accommodations.
Discriminatory Intent: Claims that a housing provider has used criminal records or other criminal history information to discriminate intentionally in violation of the Act should be investigated in a manner similar to other allegations of intentional discrimination. Criminal records or other criminal history information may be a pretext for unequal treatment of individuals because of race, color, national origin, disability, or another protected characteristic.
Examples of evidence that would support a finding of reasonable cause to believe that disparate treatment occurred include (not an exhaustive list):
DISCRIMINATORY EFFECT: [author’s note—These are disparate impact claims, meaning the housing provider did not mean to intentionally discriminate, but the effect of the decision resulted in discrimination.] Claims that a housing provider’s policy or practice concerning criminal background screening or other criminal history information creates an unjustified discriminatory effect in violation of the Act should be investigated using the analysis described in the 2016 Guidance. The three steps to a discriminatory effects analysis follow.
Investigators must gather evidence regarding whether the challenged criminal history policy or practice actually or predictably results in a disparate impact on a protected class. This involves 1) identifying the housing provider’s relevant practices or policies, both written and in practice, and 2) identifying statistics which show whether the identified policies actually or predictably result in a disparate impact on a protected class.
If a policy denies tenancy to anyone with a felony arrest or conviction over the past 10 years, the investigator should focus on felony conviction and arrest data over the past 10 years for the relevant populations. For example, data showing that Hispanics consist of 20 percent of the respondent’s applicants but 70 percent of those excluded due to a criminal record policy is evidence that the criminal record screening policy has a disproportionate impact on Hispanic applicants. Data showing that Black individuals comprise 65 percent of the housing provider’s tenants, but 95 percent of those evicted under a policy to evict based on an arrest indicates that the policy to evict for an arrest has a disproportionate impact on Black tenants. If the policy is necessary to achieve a substantial, legitimate, nondiscriminatory interest, investigators should gather information and analyze whether the same interest could be served by another practice that has a less discriminatory effect. If so, respondent’s defense fails. [emphasis added]
Relevant individualized evidence might include the facts or circumstances surrounding the criminal conduct; 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; and evidence of rehabilitation efforts.
FAILURE TO MAKE A REASONABLE ACCOMMODATION: For example, a reasonable accommodation to a criminal background screening policy or practice may be required when there is evidence that the individual’s disability contributed to the criminal conduct at issue, and there are mitigating circumstances that eliminate or significantly reduce the risk of harm to others or property, such as improvements resulting from previous on ongoing therapy or treatment. (The Fair Housing Act provides that the current illegal use of controlled substances is not considered a disability under the Act. Additionally, the Act does not protect a person whose tenancy would constitute a “direct threat” to the health and safety of other individuals or result in substantial physical damage to the property of others, unless the threat can be eliminated or significantly reduced by reasonable accommodation.) The housing provider thus must have reliable, objective evidence that a person with a disability currently poses a direct threat that cannot be significantly reduced before excluding them from housing on that basis.
Many questions result from this particular theory of liability. Is HUD saying that if the felon had a recognized disability under the Act that contributed to criminal behavior then the criminal behavior should be overlooked? At a minimum, it should be considered by the housing provider. The June 10, 2022, HUD Memo concludes with “TIPS from HUD” as follows:
PRIVATE HOUSING PROVIDERS SHOULD CONSIDER NOT USING CRIMINAL HISTORY TO SCREEN TENANTS FOR HOUSING. If housing providers choose to use criminal background screening policies or practices, they should consider taking the following steps to avoid potential violation of the Fair Housing Act:
The memo concludes with this statement: “We will continue to work collaboratively to ensure that the Fair Housing Act’s protections are realized by all protected classes.” Thus, any reader of the HUD memo can only conclude that HUD clearly intends to protect the felon when such felon is already a member of a protected class, which includes race, color, national origin, religion, sex, disability, and familial status.
In light of this far-reaching HUD memo, condominium and homeowner associations would be well advised to check in with their association’s attorney prior to denying an applicant based on their criminal past and when revising application procedures, too. A copy of the June 10, 2022, HUD memo can be found at https://kbrlegal.com/wp-content/uploads/2022/07/hud_2022june10_memo-felons.pdf.
Attorney, Kaye Bender Rembaum
Attorney Jeffrey Rembaum has considerable experience representing countless community associations that include condominium, homeowner, commercial, and cooperative associations throughout Florida. He is a board certified specialist in condominium and planned development law and is a Florida Supreme Court circuit civil mediator. Every year since 2012, Mr. Rembaum has been inducted into the Florida Super Lawyers. He was twice awarded as a member of Florida Trend’s Legal Elite. Kaye Bender Rembaum, P.L., is devoted to the representation of community and commercial associations throughout Florida with offices in Palm Beach, Broward, and Hillsborough Counties (and Miami-Dade by appointment). For more information, visit kbrlegal.com.