Housing providers have criteria that are used to screen potential residents, which may include criminal screening. While looking into the criminal background of a prospective resident is not illegal, per se, under the FHA, the US Department of Housing and Urban Development (HUD) has provided guidance noting that a criminal conviction screening policy can violate the FHA under the theory of disparate impact.
Disparate impact occurs when policies, practices, rules or other systems that appear to be neutral create an adverse effect on a protected group. This can occur when a policy that is unintentionally discriminatory becomes discriminatory when implemented. Lack of clear guidance regarding disparate impact creates potential legal liability for housing providers. Below are resources to consider when developing and implementing criminal screening policies. The information provided is for informative purposes only - it is not to be used as legal or operational advice.
The Department of Housing and Urban Development (HUD)'s guidance discussing how a criminal conviction screening policy could violate the FHA under disparate impact theory.
In 2023, the Department of Housing and Urban Development (HUD) posted written “outreach” on its web site for multifamily operators. The outreach reminds HUD multifamily assisted housing providers of disclosure and appeals requirements for denials of admission they issue. The agency also strongly encourages the use of written adverse action notices and to provide a copy of the report relied upon with the notice.