The document summarizes HUD's new guidelines on tenant screening and criminal background checks, which state that blanket policies barring individuals with criminal records from housing can disproportionately impact racial minorities and violate fair housing laws, unless the policy is justified by legitimate safety concerns and no less discriminatory alternatives exist. Landlords are advised to conduct individualized assessments that consider the facts of convictions and evidence of rehabilitation.

1. HUD’s New Guidelines on Tenant
Screening and Criminal
Background Checks
Catherine E. Ybarra, Esq
Simone & Associates
3702 4th Avenue
San Diego, CA 92103
Telephone: (619) 235-6180
landlordslegalcenter.com

2. What is HUD? 2
»U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
»Responsibilities:
• Create nationwide policies and programs to address our
country’s housing needs
• Improve and develop our country’s communities
• Enforce fair housing laws

3. Fair Housing Laws
» The Fair Housing Act of 1968 – Federal law that prohibits
discrimination based on race, color, national origin, religion,
sex, familial status, and disability.
» California's Fair Employment and Housing Act and Unruh
Civil Rights Act prohibits discrimination based on race, color,
religion, sex (including pregnancy, childbirth or medical
conditions related to them, as well as gender and perception
of gender), sexual orientation, marital status, national origin,
ancestry, familial status, source of income, or disability
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4. California
» File complaint with DFEH
(Cal. Dept. Fair
Employment & Housing)
» DFEH can investigate and
force mediation
» Prospective tenant can file
lawsuit
What happens if I violate the fair housing
laws when screening a tenant?
Federal
» File complaint with HUD
» HUD will investigate &
offers ADR
» HUD makes finding of
discrimination parties
choose Federal Court or
administrative judge to
litigate
4

5. Discrimination Against
Criminal Ex-Offenders
5

6. “
“Nationally, racial and ethnic minorities face
disproportionately high rates of arrest and
incarceration.”

7. ““A housing provider violates the Fair Housing
Act when the provider’s policy or practice has
an unjustified discriminatory effect, even
when the provider had no intent to
discriminate.”
7

8. Wait so the law considers ex-criminals a protected class?
»No. “Having a criminal record is not a
protected characteristic under the Fair
Housing Act.”
» “Criminal history-based restrictions on
housing opportunities violate the Act if,
without justification, their burden falls more
often on renters or other housing market
participants of one race or national origin
over another (i.e., discriminatory effects
liability)”
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9. How Discrimination Based on a Criminal Record Occurs
» Indirectly – prohibitions against renting to ex-offenders
may have a disparate effect on affected minority groups.
» Directly –
»Landlord rejects an Hispanic applicant based on his
criminal record, but admitted a non-Hispanic White
applicant with a comparable criminal record
»Landlord has a policy of not renting to persons with
certain convictions, but makes exceptions to it for White
people but not African Americans
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10. How does HUD determine if discrimination occurred?
»1 - Does LL’s “criminal history policy” have a discriminatory
effect or result in a disparate impact on a group of persons
because of their race or national origin?
» HUD may look at national, state or local statistics on racial
and ethnic disparities in the criminal justice system
» Nationally, racial and ethnic minorities face
disproportionately high rates of arrest and incarceration.
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11. How does HUD determine if discrimination occurred?
»2 - Is the policy or practice justified – is it necessary to achieve a
substantial, legitimate, nondiscriminatory interest of the LL?
» Policy or practice of making housing decisions based on
criminal history actually assists in protecting resident safety
and/or property
• Arrest without conviction not sufficient
• Distinguish between criminal conduct that indicates a
demonstrable risk to resident safety and/or property and
criminal conduct that does not
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12. How does HUD determine if discrimination occurred?
»3 – Can the substantial, legitimate, nondiscriminatory interest
of the LL be achieved by another practice that has a less
discriminatory effect?
»HUD says look to the following: “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”
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13. Exceptions – Illegal Drug Convictions
»Act does not prohibit “conduct against a person because such
person has been convicted ... of the illegal manufacture or
distribution of a controlled substance as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802).”
» Unless landlord is guilty of intentional discrimination
• ex. Landlord rejects only African American applicants with
convictions for distribution of a controlled substance, while
admitting White applicants with such convictions.
13

14. Place your screenshot here
14Any Questions?
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more information.
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