Understanding Criminal History Discrimination in Housing

Although people with criminal or housing court records are not technically a protected class under the FHA, guidance from the U.S. Department of Housing and Urban Development ¹ prohibits blanket refusal to provide housing based on the presence of a criminal record. This guidance and relevant lawsuits say that a housing provider has to prove that their criminal-history-related requirement is intended to maintain the safety of other tenants. It clarifies certain situations where the landlord would definitely be unable to meet this burden of proof:

• If a policy is to exclude renters based based on arrest history even if they weren't convicted
• If a policy exclude all individuals with any history of convictions no matter when the conviction occurred, what the underlying conduct entailed or what the person has done since then

HUD also clarifies situations where the housing provider would definitely be able to meet this burden of proof:

• A housing provider is protected if their policy excludes people who were convicted with drug manufacturing or distribution

Most individualized policies prohibiting individuals based on criminal record leave room for legal grey areas and, therefore, risk to the housing provider. An applicant can make a case that an individualized policy is unfair with specific examples from their own life that demonstrate that they are not a risk to other tenants even though they don't meet the housing provider's policy. HUD lists examples:

• The 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
• Evidence of rehabilitation efforts

[1] 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