Evictions most common in neighborhoods with highest concentrations of African-American renters
Discriminatory Use of Criminal & Eviction Records in Rental Applications
The Harder they Fall:How the indiscriminate use of unlawful detainer recordsin rental housing admissions causes a disparate impacton women, people of color, and families with children
Eric Dunn, Staff AttorneyNorthwest Justice Project401 Second Ave. S., Ste. 407Seattle, Washington 98104Tel. (206) 464-1519, ext. 234EricD@nwjustice.org
Fair Housing in Washington“It is an unfair practice for any person … becauseof sex, marital status, sexual orientation, race,creed, color, national origin, families with childrenstatus, honorably discharged veteran or militarystatus, the presence of any sensory, mental, orphysical disability, or the use of a trained dogguide or service animal … to discriminate againsta person in the terms, conditions, or privileges of areal estate transaction or in the furnishing offacilities or services in connection therewith…” RCW 49.60.222(1) (Wash. Law Against Discrimination) See also 42 USC 3601 et seq. (Fair Housing Act)
Disparate Treatment“Classic” form of discrimination Treating a person less favorably than others due to membership in protected class Key is discriminatory intent On Montgomery between Linden and Norton. 2843 Montgomery St. 2 MONTHS RENT FREE!! Lovely 2 bedroom and 1 bath house. Large living, dining room, laundry room, and a large porch perfect for the summer. Partially fenced yard. Pets ok with extra deposit. Owner pays garbage. No section 8. Good credit required. One year lease required.
Disparate Impact “Outwardly neutral practice” that causes “a significantly adverse or disproportionate impact on persons of a [protected class].” Pfaff v. HUD, 88 F.3d 739, 745 (9th Cir. 1996)A tenant-selection policy that causes a disparate impact on a protected class is unlawful unless justified by a “compelling business necessity” Discriminatory intent (or lack thereof) not an issue
Rental applications are commonlydenied due to criminal or UD records
Does the denial of housing toapplicants with criminal or evictionrecords cause a disparate impact onmembers of any protected class?
Criminal Records: Racial DisparitiesAfrican-Americans are 12.9% of U.S. population 2000 US CensusAfrican-Americans are arrested and incarcerated at rates disproportionate to their numbers About 27% of persons arrested each year FBI Uniform Crime Reports, 2003 Make up 45% of U.S. prison population Sourcebook of Criminal Justice Statistics, 2000 8.2 times more likely to be incarcerated than whites More than 9 times more likely in Washington Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs, Vol. 12, No. 2(G) (May 2000)Denying housing to people with criminal records causes a disparate impact on African-Americans
Race Disparities: FactorsAfrican-Americans more than 70% more likely to be searched by police than Whites Latinos 50% more likely to be searchedAfrican-Americans 62% more likely to be imprisoned for felony drug offenses (than similarly-situated Whites) Also, focus on crack cocaine has racial impactAfrican-Americans get harsher treatment in: Conditions on pre-trial release (bail) Legal financial obligations & asset forfeitures *Task Force on Race & Crim. Just. Syst., “Preliminary Report on Race and Washington’s Criminal Justice System” (2011)
Is the denial of rental housing toapplicants with criminal recordsjustified by a compelling businessnecessity?
What makes a good tenant?Ability to afford rent, utilities, etc. Amount and stability of income, assets Other obligations are manageable Credit historyBehavioral suitability Applicant not likely to damage the premises Applicant likely to follow basic rules Applicant likely to coexist well with neighbors
Common justifications given for rejecting rental applicants with criminal records… A person with a criminal record: May pose a danger to the landlord or neighbors Could engage in criminal activity at the property Could damage the physical premisesThen again, so could a person with no criminal record…
After 5 Years, Offenders No More LikelyThan Non-Offenders to Be Re-Arrested(Kurlychek, et al. “Scarlet Letters & Recidivism: Does An OldCriminal Record Predict Future Criminal Behavior?,” 2006) 13
Criminal Records: A Poor ProxyThe disproportionate representation of African- Americans and Latinos among Washington’s incarcerated population not a product of higher rates of crime commission. Task Force on Race and the Criminal Justice System, “Preliminary Report on Race and Washington’s Criminal Justice System” (2011)“[T]he significant racial disparities in arrest rates are not fully warranted by race or ethnic differences in illegal behavior.” --Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir. 2010)*
Criminal history: factors What was the offense? How does the offense relate to housing? How long ago did the offense occur? What were the surrounding circumstances? Age of offender Drug/alcohol use Have conditions changed? Has the applicant become less-likely to commit similar offenses in the present/future?
Answers: Whether the denial of a rental applicant on the basis of a criminal record is justified by business necessity depends on the specific circumstances, and can only be determined on a case-by-case basis. A housing provider that denies applicants based on criminal records, without making case-specific determinations, probably violates the Fair Housing Act.
Does a residential landlord who rejects applicant based on eviction (i.e., unlawful detainer) records cause a disparate impact on (members of) any protected class?
Empirical Studies (1)Milwaukee, Wisc. 2009: low-income African- American women, especially those who were single mothers, tended to face eviction at disproportionately higher rates. Desmond, Matthew, “Eviction and the Reproduction of Urban Poverty,” Paper presented at the American Sociological Association Annual Meeting, Hilton San Francisco, San Francisco, CA, Aug 08, 2009 Oakland, Cal. 2002: 78% of “30-day no cause” evictions were issued to “minority households”
Empirical Studies (2) Chicago, Ill. 1996: 72% of defendants appearing in eviction court were African American, 62% were women Philadelphia, Penn. 2001: 83% of tenants facing eviction were “nonwhite,” 70% were “nonwhite women” Other studies in Baltimore, NYC, and LA “have shown that those who are evicted are typically poor, women, and minorities.” Hartman, Chester & David Robinson, “Evictions: The Hidden Housing Problem,” 14 Housing Policy Debate 461 (2003)
King County Eviction Data A 2010 Study by students in the UW-Bothell Policy Studies Program* found that: A moderate negative relationship exists between the percentage of White tenants in a zip code area and that zip code area’s UD rate A moderate positive relationship exists between the percentage of non-White tenants in a zip code area and that zip code area’s UD rate Strongest Correlations: Black, Multi-Racial tenants *Gehri, Leah M., John Lee, Logan Micheel and Damian Rainey,“Tenant Screening Practices: Evidence of Disparate Impact in King County, Washington,” March 16, 2010
Can the denial of rentalapplications based on unlawfuldetainer records be justified bya compelling businessnecessity?
Possible justificationsUnlawful detainer record may demonstrate: That the applicant is financially irresponsible That the applicant may be indifferent to or contemptuous of tenancy obligations The applicant may be unable to take proper care of rental premises That the applicant may be disagreeable toward neighbors
Eviction RecordsEviction filings detected through SCOMIS Data entered by court clerk upon case filing Circumstances, case outcome seldom considered
UD Records: Factors What was the basis for the UD? Nonpayment? Lease violation? No cause? Allegations in complaint, eviction notices What were the surrounding circumstances? How was the UD resolved? If judgment, was it on merits or by default? Any post-judgment proceedings?Evidence of changed circumstances?
Rule: denial of rental housingbased on eviction filingsIn Washington, a landlord probably has a compelling business necessity to deny a residential housing application based on a prospective tenant’s eviction record if, and only if: On a case-specific analysis of all relevant factors, a reasonable landlord would find that the applicant presents an undue risk of defaulting in rent or violating some other material term of the tenancyOtherwise, such a denial likely violates the Fair Housing Act due to causing a disparate impact on the basis of race, gender, and families with children!