Fair Housing: Ex-Felons, Discrimination and ‘Disparate Impact’

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This is interesting news from Department of Housing and Urban Development regarding blanket bans against ex-offenders when it comes to fair housing.   According to HUD, “Private landlords who have blanket bans on renting to people with criminal records are in violation of the Fair Housing Act and can be sued and face penalties for discrimination.”  I thought this was great timing to post this blog since April is Fair Housing Month and we are currently in production of our upcoming documentary film, NOT FOR RENT!  Now before you get too excited about the news, there are some restrictions to what the government calls “guidance” regarding the ability to rent to ex-felons.  This is where it gets a little confusing and by no means am I a Political Analyst.  I’ll try to make it simple as I can…

Julián Castro, The Secretary of Housing and Urban Development, Metamora Films

Julián Castro, The Secretary of Housing and Urban Development

On April 4th, 2016 HUD and Julián Castro released it’s “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate Related Transactions.”  That is a mouth full.  Basically it lays out a 3-prong test used to analyze claims that a housing provider’s use of criminal history to deny housing opportunities results in a discriminatory effect in violation of the Act.  They include:  Whether the Criminal History Policy or Practice Has a Discriminatory Effect, Whether the Challenged Policy or Practice is Necessary to Achieve a Substantial, Legitimate, Nondiscriminatory Interest, and Evaluating Whether There Is a Less Discriminatory Alternative.  This all boils down to private landlords and property managers CAN have restrictions against renting to ex-offenders, but they will need to prove that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not.  This may seem like bad news for ex-offenders, but this is a huge win for housing advocates and civil rights groups such as The Fortune Society as the new guidance set forth forces land owners to take a more individualized approach to avoid violating the Fair Housing Act.  (Unfortunately, excluded are those convicted of manufacturing or distributing drugs, the only crimes that are exempted under the Fair Housing Act).

So what about “disparate impact?”  What does it have to do with HUD’s new guidance?  Last year, the United States Government ruled in favor 5-to-4 endorsing a broad interpretation of the Fair Housing Act of 1968, allowing suits under a legal theory that civil rights groups say is a crucial tool to fight housing discrimination.  The Court “acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society”, said Justice Anthony M. Kennedy.  The ruling allows plaintiffs to show instead that the practices both have a “disparate impact” on racial groups and are not justified. Blacks and Latinos are arrested, convicted and imprisoned in disproportionate numbers, and civil rights groups say they face equally disparate discrimination in finding housing.

arrests per race

As mentioned, April is Fair Housing Month.  On HUD’s website it reads: “April, we come together as a community and a nation to celebrate the anniversary of the passing of the Fair Housing Act and recommit to that goal which inspired us in the aftermath of Rev. Dr. Martin Luther King Jr’s assassination in 1968: to eliminate housing discrimination and create equal opportunity in every community. Fundamentally, fair housing means that every person can live free. This means that our communities are open and welcoming, free from housing discrimination and hostility. But this also means that each one of us, regardless of race, color, religion, national origin, sex, familial status, and disability, has access to neighborhoods of opportunity, where our children can attend quality schools, our environment allows us to be healthy, and economic opportunities and self sufficiency can grow.”

As I produce NOT FOR RENT!, a documentary film on the struggles ex-offenders face while trying to secure housing, I’ve seen first hand the “blanket bans” on felons, including straight out “No’s” for registered sex offenders.  I believe this will need to change quickly and private landlords and management companies will need to look at each individual cases separately and to prove that renting to a certain offender would cause “demonstrable risk to resident safety”.  Prove is the important word here.  I understand the need for safe communities and living near nice people that all get along.  I also understand the worry landlords have in regards to property damage, rent payments that go unpaid, and the overall higher risk (not in all cases, of course) in renting to ex-offenders. On the other hand, it’s my belief that this new guidance put forth only a couple of weeks ago is an improved balance between the rights of tenants and property owners.  In addition, I’ll bet it will reduce recidivism rates across the country as more ex-felons are able to secure housing, which is a HUGE hurdle during reentry into any community.  Way to go Julián Castro!

Matt Duhamel, Film Director


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