Criminal background is not a protected class under the Fair Housing Act. However, having a criminal background does not automatically bar you from housing. Landlords are obligated to evaluate every tenant on a case-by-case basis. Both private and public housing providers are subject to the Criminal Background Rule.
On April 20, 2022, HUD Secretary Marcia Fudge issued a Memo to all HUD programs to evaluate their own policies and make amendments to be more inclusive of individuals with criminal histories.
If you hear…
We have a blanket ‘no felony’ policy.
If you served time in the last 20 years, we won’t take you.
We don’t even look at an application if you have a criminal record.
Arrested? You can’t live here.
No one would feel safe with you here.
Then you may be experiencing housing discrimination.
There are criminal background screenings that may appear neutral and equal, but can violate the Fair Housing Act and do not have legally sufficient justification.
The U.S. Department of Housing and Urban Development (HUD)’s Criminal Background Rule explains how certain housing selection policies may violate the Fair Housing Act. For example, blanket denials of applicants with conviction records and any denial of applicants with only an arrest record may violate the Act. This is because these policies have been proven to have a disparate impact on classes that are protected under the Fair Housing Act (for instance, race, disability, and national origin).
If a potential tenant is denied housing due to a conviction, the housing provider may have to prove that the exclusion is justified. The only exception to this guidance is when the conviction was for manufacturing or distributing drugs.
In the City of Ann Arbor, on April 18, 2021, the Fair Chance Access to Housing Ordinance eliminated the use of criminal history in tenant selection. The housing provider may conduct background checks only when required to do so by federal law.
A man with a physical disability lived in his apartment building for three years. He was, by all accounts, an excellent tenant. When a new management company took over, they required that each tenant reapply. Our complainant had a felony record from 14 years prior and for this reason the new managers told him he would have to move at the end of his lease. As a reasonable accommodation, FHC asked for a new lease to be issued, pointing out our complainant had turned his life around. The accommodation was granted.
The complex later removed his reserved parking space. We asked for a second accommodation to have his reserved parking space returned to him and the accommodation was granted.
A woman who owns a mobile home needs 24-hour-a-day care provided by her son and her boyfriend. Both lived with her for the last six years without complaint or incident.
A new manager demanded she officially put her caregivers on her lease, but denied their applications because of past felony convictions. This led to an eviction notice and the woman feared any gap in her care could be fatal. FHC staff wrote a letter asking they let her add her caregivers to the lease as a reasonable accommodation of her disability. The accommodation was granted.
The Fair Housing Center filed a suit alleging a violation of HUD’s guidance regarding criminal background and tenancy selection. “The [HUD] Guidance is not ambiguous; it clearly explains how broad-based criminal background policies that rely on criminal histories cause a disparate impact on people of color, how automatic blanket bans that categorically exclude applicants as a result of their criminal histories are not necessary to satisfy a legitimate business interest, and that giving individualized consideration to applicants based on factors such as the nature of conviction and evidence of rehabilitation is a less discriminatory alternative …” The case settled for $20,000 and a change in the tenant screening policy.Read More
If you believe you have been the victim of housing discrimination, please call us toll-free at 1-877-979-FAIR to discuss the situation.
Information provided about allegations or complaints of housing discrimination will be kept confidential. We will not report undocumented immigrants to the authorities.
Retaliation is illegal. Any attempt should be immediately reported to the FHC.
HUD Memo to Public Housing Authorities (PHAs) (2015) (PDF)
Subscribe to our e-newsletter to keep up to date on our cases, events, and other fair housing news.