The Fair Housing Act
The Fair Housing Act (“FHA”) is a federal law that protects people from housing discrimination based on the following protected classes: race, color, sex, national origin, familial status, religion, or disability. Utah law also prohibits discrimination based on source of income, sexual orientation, and one other category. These laws mean that landlords and other housing providers may not discriminate because of a person’s protected class in any housing transactions, including rental, sale, mortgage lending, appraisal, and insurance.
The FHA as Applied to Background Checks
Sometimes, housing providers will require prospective tenants to undergo a criminal history check as part of the application process, especially for rental housing. Housing providers then will use the results of this background check to screen prospective tenants and determine whether an applicant is eligible to rent a particular unit. This is not necessarily unlawful.
However, some policies related to background checks could violate the law. Recent federal housing guidance from the U.S. Department of Housing and Urban Development (“HUD”) states that it could be unlawful for housing providers to refuse to rent to someone because of their criminal record, if that housing provider does not consider the nature and severity of the crimes, how long ago the crimes occurred, and any rehabilitative efforts since the crimes occurred.[1] It could also be unlawful if housing providers deny a prospective tenant based upon a record of arrests alone (as opposed to convictions or guilty pleas). These types of background checks could violate the Fair Housing Act if they impose an unjustified and discriminatory effect on people based upon their race, national origin, or other protected class.
[1] HUD, “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,” April 6, 2016. Available at: https://www.hud.gov/sites/documents/HUD_OGCGUIDAPPFHASTANDCR.PDF
Housing providers may be required to make an exception to their criminal record policy as a reasonable accommodation. People with disabilities who have a criminal record that is related to their disability may be entitled to a reasonable accommodation under the FHA. Denial of a request for reasonable accommodation may violate the FHA.
Examples of possible discrimination involving criminal records:
- A housing provider’s policy is to deny anyone with any type of criminal record, regardless of age, severity, rehabilitative efforts, or other relevant factors.
- A housing provider’s policy regarding criminal records is not applied in the same way to different residents.
- A housing provider’s policy considers arrest records in making housing decisions.
- You are denied housing because you are in recovery from substance abuse.
- You request an exception to your housing provider’s criminal records policy as a disability-related reasonable accommodation, but are denied.