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)
landlordslegalcenter.com

2. What is HUD?
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

4. File complaint with DFEH (Cal. Dept. Fair Employment & Housing)
What happens if I violate the fair housing laws when screening a tenant?
California
File complaint with DFEH (Cal. Dept. Fair Employment & Housing)
DFEH can investigate and force mediation
Prospective tenant can file lawsuit
Federal
File complaint with HUD
HUD will investigate & offers ADR
HUD makes finding of discrimination parties choose Federal Court or administrative judge to litigate

5. Discrimination Against Criminal Ex-Offenders

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.”

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)”

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

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.

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

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”

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.

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