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HUD - Application of Fair Housing Act Standards to the Use of Criminal Records, 2016

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U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
WASHINGTON, DC 20410-0500

April 4, 2016
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
I.

Introduction

The Fair Housing Act (or Act) prohibits discrimination in the sale, rental, or financing of
dwellings and in other housing-related activities on the basis of race, color, religion, sex,
disability, familial status or national origin.1 HUD’s Office of General Counsel issues this
guidance concerning how the Fair Housing Act applies to the use of criminal history by
providers or operators of housing and real-estate related transactions. Specifically, this guidance
addresses how the discriminatory effects and disparate treatment methods of proof apply in Fair
Housing Act cases in which a housing provider justifies an adverse housing action – such as a
refusal to rent or renew a lease – based on an individual’s criminal history.
II.

Background

As many as 100 million U.S. adults – or nearly one-third of the population – have a
criminal record of some sort.2 The United States prison population of 2.2 million adults is by far
the largest in the world.3 As of 2012, the United States accounted for only about five percent of
the world’s population, yet almost one quarter of the world’s prisoners were held in American
prisons.4 Since 2004, an average of over 650,000 individuals have been released annually from
federal and state prisons,5 and over 95 percent of current inmates will be released at some point.6
When individuals are released from prisons and jails, their ability to access safe, secure and
affordable housing is critical to their successful reentry to society.7 Yet many formerly
incarcerated individuals, as well as individuals who were convicted but not incarcerated, encounter
significant barriers to securing housing, including public and other federally-subsidized housing,

1

42 U.S.C. § 3601 et seq.

2

Bureau of Justice Statistics, U.S. Dep’t of Justice, Survey of State Criminal History Information Systems, 2012, 3
(Jan. 2014), available at https://www.ncjrs.gov/pdffiles1/bjs/grants/244563.pdf.
3
Nat’l Acad. Sci., Nat’l Res. Couns., The Growth of Incarceration in the United States: Exploring Causes and
Consequences 2 (Jeremy Travis, et al. eds., 2014), available at: http://www.nap.edu/catalog/18613/the-growth-ofincarceration-in-the-united-states-exploring-causes.
4
Id.
5
E. Ann Carson, Bureau of Justice Statistics, U.S. Dep’t of Justice, Prisoners in 2014 (Sept. 2015) at 29, appendix
tbls. 1 and 2, available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5387.
6
Bureau of Justice Statistics, U.S. Dep’t of Justice, Reentry Trends in the United States, available at
http://www.bjs.gov/content/pub/pdf/reentry.pdf.
7
See, e.g., S. Metraux, et al. “Incarceration and Homelessness,” in Toward Understanding Homelessness: The 2007
National Symposium on Homelessness Research, #9 (D. Dennis, et al. eds., 2007), available at:
https://www.huduser.gov/portal//publications/pdf/p9.pdf (explaining “how the increasing numbers of people leaving
carceral institutions face an increased risk for homelessness and, conversely, how persons experiencing
homelessness are vulnerable to incarceration.”).

www.hud.gov

espanol.hud.gov

because of their criminal history. In some cases, even individuals who were arrested but not
convicted face difficulty in securing housing based on their prior arrest.
Across the United States, African Americans and Hispanics are arrested, convicted and
incarcerated at rates disproportionate to their share of the general population.8 Consequently,
criminal records-based barriers to housing are likely to have a disproportionate impact on minority
home seekers. While 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 Additionally,
intentional discrimination in violation of the Act occurs if a housing provider treats individuals
with comparable criminal history differently because of their race, national origin or other
protected characteristic (i.e., disparate treatment liability).
III.

Discriminatory Effects Liability and Use of Criminal History to Make Housing
Decisions

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.10
Under this standard, a facially-neutral policy or practice that has a discriminatory effect violates
the Act if it is not supported by a legally sufficient justification. Thus, where a policy or practice
that restricts access to housing on the basis of criminal history has a disparate impact on
individuals of a particular race, national origin, or other protected class, such policy or practice is
unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate,
nondiscriminatory interest of the housing provider, or if such interest could be served by another
practice that has a less discriminatory effect.11 Discriminatory effects liability is assessed under
a three-step burden-shifting standard requiring a fact-specific analysis.12
The following sections discuss the three steps 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. As explained in Section IV, below, a different analytical framework is
used to evaluate claims of intentional discrimination.

8

See infra nn. 16-20 and accompanying text.
The Fair Housing Act prohibits discrimination based on race, color, religion, sex, disability, familial status, and
national origin. This memorandum focuses on race and national origin discrimination, although criminal history
policies may result in discrimination against other protected classes.
10
24 C.F.R. § 100.500; accord Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., ___ U.S. ___,
135 S. Ct. 2507 (2015).
11
24 C.F.R. § 100.500; see also Inclusive Cmtys. Project, 135 S. Ct. at 2514-15 (summarizing HUD’s
Discriminatory Effects Standard in 24 C.F.R. § 100.500); id. at 2523 (explaining that housing providers may
maintain a policy that causes a disparate impact “if they can prove [the policy] is necessary to achieve a valid
interest.”).
12
See 24 C.F.R. § 100.500.
9

2

A. Evaluating Whether the Criminal History Policy or Practice Has a Discriminatory Effect
In the first step of the analysis, a plaintiff (or HUD in an administrative adjudication)
must prove that the criminal history policy has a discriminatory effect, that is, that the policy
results in a disparate impact on a group of persons because of their race or national origin.13 This
burden is satisfied by presenting evidence proving that the challenged practice actually or
predictably results in a disparate impact.
Whether national or local statistical evidence should be used to evaluate a discriminatory
effects claim at the first step of the analysis depends on the nature of the claim alleged and the
facts of that case. While state or local statistics should be presented where available and
appropriate based on a housing provider’s market area or other facts particular to a given case,
national statistics on racial and ethnic disparities in the criminal justice system may be used
where, for example, state or local statistics are not readily available and there is no reason to
believe they would differ markedly from the national statistics.14
National statistics provide grounds for HUD to investigate complaints challenging
criminal history policies.15 Nationally, racial and ethnic minorities face disproportionately high
rates of arrest and incarceration. For example, in 2013, African Americans were arrested at a
rate more than double their proportion of the general population.16 Moreover, in 2014, African
Americans comprised approximately 36 percent of the total prison population in the United
States, but only about 12 percent of the country’s total population.17 In other words, African
Americans were incarcerated at a rate nearly three times their proportion of the general
population. Hispanics were similarly incarcerated at a rate disproportionate to their share of the
13

24 C.F.R. § 100.500(c)(1); accord Inclusive Cmtys. Project, 135 S. Ct. at 2522-23. A discriminatory effect can
also be proven with evidence that the policy or practice creates, increases, reinforces, or perpetuates segregated
housing patterns. See 24 C.F.R. § 100.500(a). This guidance addresses only the method for analyzing disparate
impact claims, which in HUD’s experience are more commonly asserted in this context.
14
Compare Dothard v. Rawlinson, 433 U.S. 321, 330 (1977) (“[R]eliance on general population demographic data
was not misplaced where there was no reason to suppose that physical height and weight characteristics of Alabama
men and women differ markedly from those of the national population.”) with Mountain Side Mobile Estates P’ship
v. Sec’y of Hous. & Urban Dev., 56 F.3d 1243, 1253 (10th Cir. 1995) (“In some cases national statistics may be the
appropriate comparable population. However, those cases are the rare exception and this case is not such an
exception.”) (citation omitted).
15
Cf. El v. SEPTA, 418 F. Supp. 2d 659, 668-69 (E.D. Pa. 2005) (finding that plaintiff proved prima facie case of
disparate impact under Title VII based on national data from the U.S. Bureau of Justice Statistics and the Statistical
Abstract of the U.S., which showed that non-Whites were substantially more likely than Whites to have a
conviction), aff’d on other grounds, 479 F.2d 232 (3d Cir. 2007).
16
See FBI Criminal Justice Information Services Division, Crime in the United States, 2013, tbl.43A, available at
https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/tables/table-43 (Fall 2014)
(reporting that African Americans comprised 28.3% of all arrestees in 2013); U.S. Census Bureau, Monthly
Postcensal Resident Population by Single Year of Age, Sex, Race and Hispanic Origin: July 1, 2013 to December 1,
2013, available at http://www.census.gov/popest/data/national/asrh/2014/2014-nat-res.html (reporting data showing
that individuals identifying as African American or Black alone made up only 12.4% of the total U.S. population at
2013 year-end).
17
See E. Ann Carson, Bureau of Justice Statistics, U.S. Dep’t of Justice, Prisoners in 2014 (Sept. 2015) at tbl. 10,
available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5387; and U.S. Census Bureau, Monthly Postcensal
Resident Population by Single Year of Age, Sex, Race and Hispanic Origin: July 1, 2014 to December 1, 2014,
available at http://www.census.gov/popest/data/national/asrh/2014/2014-nat-res.html.

3

general population, with Hispanic individuals comprising approximately 22 percent of the prison
population, but only about 17 percent of the total U.S. population.18 In contrast, non-Hispanic
Whites comprised approximately 62 percent of the total U.S. population but only about 34
percent of the prison population in 2014.19 Across all age groups, the imprisonment rates for
African American males is almost six times greater than for White males, and for Hispanic
males, it is over twice that for non-Hispanic White males.20
Additional evidence, such as applicant data, tenant files, census demographic data and
localized criminal justice data, may be relevant in determining whether local statistics are
consistent with national statistics and whether there is reasonable cause to believe that the
challenged policy or practice causes a disparate impact. Whether in the context of an
investigation or administrative enforcement action by HUD or private litigation, a housing
provider may offer evidence to refute the claim that its policy or practice causes a disparate
impact on one or more protected classes.
Regardless of the data used, determining whether a policy or practice results in a disparate
impact is ultimately a fact-specific and case-specific inquiry.
B. Evaluating Whether the Challenged Policy or Practice is Necessary to Achieve a
Substantial, Legitimate, Nondiscriminatory Interest
In the second step of the discriminatory effects analysis, the burden shifts to the housing
provider to prove that the challenged policy or practice is justified – that is, that it is necessary to
achieve a substantial, legitimate, nondiscriminatory interest of the provider.21 The interest
proffered by the housing provider may not be hypothetical or speculative, meaning the housing
provider must be able to provide evidence proving both that the housing provider has a
substantial, legitimate, nondiscriminatory interest supporting the challenged policy and that the
challenged policy actually achieves that interest.22
Although the specific interest(s) that underlie a criminal history policy or practice will no
doubt vary from case to case, some landlords and property managers have asserted the protection
of other residents and their property as the reason for such policies or practices.23 Ensuring
18

See id.
See id.
20
E. Ann Carson, Bureau of Justice Statistics, U.S. Dep’t of Justice, Prisoners in 2014 (Sept. 2015) at table 10,
available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5387.
21
24 C.F.R. § 100.500(c)(2); see also Inclusive Cmtys. Project, 135 S. Ct. at 2523.
22
See 24 C.F.R. § 100.500(b)(2); see also 78 Fed. Reg. 11460, 11471 (Feb. 15, 2013).
23
See, e.g., Answer to Amended Complaint at 58, The Fortune Society, Inc. v. Sandcastle Towers Hsg. Dev. Fund
Corp., No. 1:14-CV-6410 (E.D.N.Y. May 21, 2015), ECF No. 37 (“The use of criminal records searches as part of
the overall tenant screening process used at Sand Castle serves valid business and security functions of protecting
tenants and the property from former convicted criminals.”); Evans v. UDR, Inc., 644 F.Supp.2d 675, 683 (E.D.N.C.
2009) (noting, based on affidavit of property owner, that “[t]he policy [against renting to individuals with criminal
histories is] based primarily on the concern that individuals with criminal histories are more likely than others to
commit crimes on the property than those without such backgrounds … [and] is thus based [on] concerns for the
safety of other residents of the apartment complex and their property."); see also J. Helfgott, Ex-Offender Needs
Versus Community Opportunity in Seattle, Washington, 61 Fed. Probation 12, 20 (1997) (finding in a survey of 196
19

4

resident safety and protecting property are often considered to be among the fundamental
responsibilities of a housing provider, and courts may consider such interests to be both
substantial and legitimate, assuming they are the actual reasons for the policy or practice.24 A
housing provider must, however, be able to prove through reliable evidence that its policy or
practice of making housing decisions based on criminal history actually assists in protecting
resident safety and/or property. Bald assertions based on generalizations or stereotypes that any
individual with an arrest or conviction record poses a greater risk than any individual without
such a record are not sufficient to satisfy this burden.
1. Exclusions Because of Prior Arrest
A housing provider with a policy or practice of excluding individuals because of one or
more prior arrests (without any conviction) cannot satisfy its burden of showing that such policy
or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. 25 As the
Supreme Court has recognized, “[t]he mere fact that a man has been arrested has very little, if
any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing
more than that someone probably suspected the person apprehended of an offense.”26 Because
arrest records do not constitute proof of past unlawful conduct and are often incomplete (e.g., by
failing to indicate whether the individual was prosecuted, convicted, or acquitted), 27 the fact of
an arrest is not a reliable basis upon which to assess the potential risk to resident safety or
property posed by a particular individual. For that reason, a housing provider who denies
housing to persons on the basis of arrests not resulting in conviction cannot prove that the
exclusion actually assists in protecting resident safety and/or property.

landlords in Seattle that of the 43% of landlords that said they were inclined to reject applicants with a criminal
history, the primary reason for their inclination was protection and safety of community).
24
As explained in HUD’s 2013 Discriminatory Effects Final Rule, a “substantial” interest is a core interest of the
organization that has a direct relationship to the function of that organization. The requirement that an interest be
“legitimate” means that a housing provider’s justification must be genuine and not false or fabricated. See 78 Fed.
Reg. at 11470; see also Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729, 742 (8th Cir. 2005)
(recognizing that, “in the abstract, a reduction in the concentration of low income housing is a legitimate goal,” but
concluding “that the Housing Authority had not shown a need for deconcentration in this instance, and in fact, had
falsely represented the density [of low income housing] at the location in question in an attempt to do so”).
25
HUD recently clarified that arrest records may not be the basis for denying admission, terminating assistance, or
evicting tenants from public and other federally-assisted housing. See Guidance for Public Housing Agencies
(PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions,
HUD PIH Notice 2015-19, (November 2, 2015), available at:
http://portal.hud.gov/hudportal/documents/huddoc?id=PIH2015-19.pdf.
26
Schware v. Bd of Bar Examiners, 353 U.S. 232, 241 (1957); see also United States v. Berry, 553 F.3d 273, 282
(3d Cir. 2009) (“[A] bare arrest record – without more – does not justify an assumption that a defendant has
committed other crimes and it therefore cannot support increasing his/her sentence in the absence of adequate proof
of criminal activity.”); United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006) (“[A] mere arrest, especially
a lone arrest, is not evidence that the person arrested actually committed any criminal conduct.”).
27
See, e.g., U.S. Dep’t of Justice, The Attorney General’s Report on Criminal History Background Checks at 3, 17
(June 2006), available at http://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf (reporting that the FBI’s
Interstate Identification Index system, which is the national system designed to provide automated criminal history
record information and “the most comprehensive single source of criminal history information in the United States,”
is “still missing final disposition information for approximately 50 percent of its records”).

5

Analogously, in the employment context, the Equal Employment Opportunity
Commission has explained that barring applicants from employment on the basis of arrests not
resulting in conviction is not consistent with business necessity under Title VII because the fact
of an arrest does not establish that criminal conduct occurred.28
2. Exclusions Because of Prior Conviction
In most instances, a record of conviction (as opposed to an arrest) will serve as sufficient
evidence to prove that an individual engaged in criminal conduct.29 But housing providers that
apply a policy or practice that excludes persons with prior convictions must still be able to prove
that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory
interest. A housing provider that imposes a blanket prohibition on any person with any
conviction record – no matter when the conviction occurred, what the underlying conduct
entailed, or what the convicted person has done since then – will be unable to meet this burden.
One federal court of appeals held that such a blanket ban violated Title VII, stating that it “could
not conceive of any business necessity that would automatically place every individual convicted
of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.”30
Although the defendant-employer in that case had proffered a number of theft and safety-related
justifications for the policy, the court rejected such justifications as “not empirically validated.”31
A housing provider with a more tailored policy or practice that excludes individuals with
only certain types of convictions must still prove that its policy is necessary to serve a
“substantial, legitimate, nondiscriminatory interest.” To do this, a housing provider must show
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.32

28

See U.S. Equal Emp’t Opportunity Comm’n, EEOC Enforcement Guidance, Number 915.002, 12 (Apr. 25, 2012),
available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm; see also Gregory v. Litton Systems, Inc.,
316 F. Supp. 401, 403 (C.D. Cal. 1970) (holding that defendant employer’s policy of excluding from employment
persons with arrests without convictions unlawfully discriminated against African American applicants in violation
of Title VII because there “was no evidence to support a claim that persons who have suffered no criminal
convictions but have been arrested on a number of occasions can be expected, when employed, to perform less
efficiently or less honestly than other employees,” such that “information concerning a … record of arrests without
conviction, is irrelevant to [an applicant’s] suitability or qualification for employment”), aff’d, 472 F.2d 631 (9th
Cir. 1972).
29
There may, however, be evidence of an error in the record, an outdated record, or another reason for not relying
on the evidence of a conviction. For example, a database may continue to report a conviction that was later
expunged, or may continue to report as a felony an offense that was subsequently downgraded to a misdemeanor.
See generally SEARCH, Report of the National Task Force on the Commercial Sale of Criminal Justice Record
Information (2005), available at http://www.search.org/files/pdf/RNTFCSCJRI.pdf.
30
Green v. Missouri Pacific R.R., 523 F.2d 1290, 1298 (8th Cir. 1975).
31
Id.
32
Cf. El, 479 F.3d at 245-46 (stating that “Title VII … require[s] that the [criminal conviction] policy under review
accurately distinguish[es] between applicants that pose an unacceptable level or risk and those that do not”).

6

A policy or practice that fails to take into account the nature and severity of an
individual’s conviction is unlikely to satisfy this standard.33 Similarly, a policy or practice that
does not consider the amount of time that has passed since the criminal conduct occurred is
unlikely to satisfy this standard, especially in light of criminological research showing that, over
time, the likelihood that a person with a prior criminal record will engage in additional criminal
conduct decreases until it approximates the likelihood that a person with no criminal history will
commit an offense. 34
Accordingly, a policy or practice that fails to consider the nature, severity, and recency of
criminal conduct is unlikely to be proven necessary to serve a “substantial, legitimate,
nondiscriminatory interest” of the provider. The determination of whether any particular
criminal history-based restriction on housing satisfies step two of the discriminatory effects
standard must be made on a case-by-case basis.35
C. Evaluating Whether There Is a Less Discriminatory Alternative
The third step of the discriminatory effects analysis is applicable only if a housing
provider successfully proves that its criminal history policy or practice is necessary to achieve its
substantial, legitimate, nondiscriminatory interest. In the third step, the burden shifts back to the
plaintiff or HUD to prove that such interest could be served by another practice that has a less
discriminatory effect.36
Although the identification of a less discriminatory alternative will depend on the
particulars of the criminal history policy or practice under challenge, individualized assessment
of relevant mitigating information beyond that contained in an individual’s criminal record is
likely to have a less discriminatory effect than categorical exclusions that do not take such
additional information into account. Relevant individualized evidence might include: 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; and evidence of rehabilitation efforts. By delaying consideration of
criminal history until after an individual’s financial and other qualifications are verified, a
housing provider may be able to minimize any additional costs that such individualized
assessment might add to the applicant screening process.
33

Cf. Green, 523 F.2d at 1298 (holding that racially disproportionate denial of employment opportunities based on
criminal conduct that “does not significantly bear upon the particular job requirements is an unnecessarily harsh and
unjust burden” and violated Title VII).
34
Cf. El, 479 F.3d at 247 (noting that plaintiff’s Title VII disparate impact claim might have survived summary
judgment had plaintiff presented evidence that “there is a time at which a former criminal is no longer any more
likely to recidivate than the average person….”); see also Green, 523 F.2d at 1298 (permanent exclusion from
employment based on any and all offenses violated Title VII); see Megan C. Kurlychek et al., Scarlet Letters and
Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 Criminology and Pub. Pol’y 483 (2006)
(reporting that after six or seven years without reoffending, the risk of new offenses by persons with a prior criminal
history begins to approximate the risk of new offenses among persons with no criminal record).
35
The liability standards and principles discussed throughout this guidance would apply to HUD-assisted housing
providers just as they would to any other housing provider covered by the Fair Housing Act. See HUD PIH Notice
2015-19 supra n. 25. Section 6 of that Notice addresses civil rights requirements.
36
24 C.F.R. § 100.500(c)(3); accord Inclusive Cmtys. Project, 135 S. Ct. 2507.

7

D. Statutory Exemption from Fair Housing Act Liability for Exclusion Because of Illegal
Manufacture or Distribution of a Controlled Substance
Section 807(b)(4) of the Fair Housing Act provides that the 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).”37 Accordingly, a housing provider will not be liable under the Act for
excluding individuals because they have been convicted of one or more of the specified drug
crimes, regardless of any discriminatory effect that may result from such a policy.
Limitation. Section 807(b)(4) only applies to disparate impact claims based on the denial
of housing due to the person’s conviction for drug manufacturing or distribution; it does not
provide a defense to disparate impact claims alleging that a policy or practice denies housing
because of the person’s arrest for such offenses. Similarly, the exemption is limited to disparate
impact claims based on drug manufacturing or distribution convictions, and does not provide a
defense to disparate impact claims based on other drug-related convictions, such as the denial of
housing due to a person’s conviction for drug possession.
IV.

Intentional Discrimination and Use of Criminal History

A housing provider may also violate the Fair Housing Act if the housing provider
intentionally discriminates in using criminal history information. This occurs when the provider
treats an applicant or renter differently because of race, national origin or another protected
characteristic. In these cases, the housing provider’s use of criminal records or other criminal
history information as a pretext for unequal treatment of individuals because of race, national
origin or other protected characteristics is no different from the discriminatory application of any
other rental or purchase criteria.
For example, intentional discrimination in violation of the Act may be proven based on
evidence that a housing provider rejected an Hispanic applicant based on his criminal record, but
admitted a non-Hispanic White applicant with a comparable criminal record. Similarly, if a
housing provider has a policy of not renting to persons with certain convictions, but makes
exceptions to it for Whites but not African Americans, intentional discrimination exists.38 A
disparate treatment violation may also be proven based on evidence that a leasing agent assisted
a White applicant seeking to secure approval of his rental application despite his potentially
disqualifying criminal record under the housing provider’s screening policy, but did not provide
such assistance to an African American applicant.39
37

42 U.S.C. § 3607(b)(4).
Cf. Sherman Ave. Tenants’ Assn. v. District of Columbia, 444 F.3d 673, 683-84 (D.C. Cir. 2006) (upholding
plaintiff’s disparate treatment claim based on evidence that defendant had not enforced its housing code as
aggressively against comparable non-Hispanic neighborhoods as it did in plaintiff’s disproportionately Hispanic
neighborhood).
39
See, e.g., Muriello, 217 F. 3d at 522 (holding that Plaintiff's allegations that his application for federal housing
assistance and the alleged existence of a potentially disqualifying prior criminal record was handled differently than
those of two similarly situated white applicants presented a prima facie case that he was discriminated against
because of race, in violation of the Fair Housing Act).
38

8

Discrimination may also occur before an individual applies for housing. For example,
intentional discrimination may be proven based on evidence that, when responding to inquiries
from prospective applicants, a property manager told an African American individual that her
criminal record would disqualify her from renting an apartment, but did not similarly discourage
a White individual with a comparable criminal record from applying.
If overt, direct evidence of discrimination does not exist, the traditional burden-shifting
method of establishing intentional discrimination applies to complaints alleging discriminatory
intent in the use of criminal history information.40 First, the evidence must establish a prima
facie case of disparate treatment. This may be shown in a refusal to rent case, for example, by
evidence that: (1) the plaintiff (or complainant in an administrative enforcement action) is a
member of a protected class; (2) the plaintiff or complainant applied for a dwelling from the
housing provider; (3) the housing provider rejected the plaintiff or complainant because of his or
her criminal history; and (4) the housing provider offered housing to a similarly-situated
applicant not of the plaintiff or complainant’s protected class, but with a comparable criminal
record. It is then the housing provider’s burden to offer “evidence of a legitimate,
nondiscriminatory reason for the adverse housing decision.”41 A housing provider’s
nondiscriminatory reason for the challenged decision must be clear, reasonably specific, and
supported by admissible evidence.42 Purely subjective or arbitrary reasons will not be sufficient
to demonstrate a legitimate, nondiscriminatory basis for differential treatment.43
While a criminal record can constitute a legitimate, nondiscriminatory reason for a
refusal to rent or other adverse action by a housing provider, a plaintiff or HUD may still prevail
by showing that the criminal record was not the true reason for the adverse housing decision, and
was instead a mere pretext for unlawful discrimination. For example, the fact that a housing
provider acted upon comparable criminal history information differently for one or more
individuals of a different protected class than the plaintiff or complainant is strong evidence that
a housing provider was not considering criminal history information uniformly or did not in fact
have a criminal history policy. Or pretext may be shown where a housing provider did not
actually know of an applicant’s criminal record at the time of the alleged discrimination.
Additionally, shifting or inconsistent explanations offered by a housing provider for the denial of
an application may also provide evidence of pretext. Ultimately, the evidence that may be
offered to show that the plaintiff or complainant’s criminal history was merely a pretextual
40

See, generally, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (articulating the concept of a “prima
facie case” of intentional discrimination under Title VII); see, e.g., Allen v. Muriello, 217 F. 3rd 517, 520-22 (7th
Cir. 2000) (applying prima facie case analysis to claim under the Fair Housing Act alleging disparate treatment
because of race in housing provider’s use of criminal records to deny housing).
41
Lindsay v. Yates, 578 F.3d 407, 415 (6th Cir. 2009) (quotations and citations omitted).
42
See, e.g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1039-40 (2d Cir. 1979) (“A prima facie case having
been established, a Fair Housing Act claim cannot be defeated by a defendant which relies on merely hypothetical
reasons for the plaintiff’s rejection.”).
43
See, e.g., Muriello, 217 F.3d at 522 (noting that housing provider’s “rather dubious explanation for the differing
treatment” of African American and White applicants’ criminal records “puts the issue of pretext in the lap of a trier
of fact”); Soules v. U.S. Dep’t of Hous. and Urban Dev., 967 F.2d 817, 822 (2d Cir. 1992) (“In examining the
defendant’s reason, we view skeptically subjective rationales concerning why he denied housing to members or
protected groups [because] ‘clever men may easily conceal their [discriminatory] motivations.’” (quoting United
States v. City of Black Jack, Missouri, 508 F.2d 1179, 1185 (8th Cir. 1974)).

9

justification for intentional discrimination by the housing provider will depend on the facts of a
particular case.
The section 807(b)(4) exemption discussed in Section III.D., above, does not apply to
claims of intentional discrimination because by definition, the challenged conduct in intentional
discrimination cases is taken because of race, national origin, or another protected characteristic,
and not because of the drug conviction. For example, the section 807(b)(4) exemption would not
provide a defense to a claim of intentional discrimination where the evidence shows that a
housing provider rejects only African American applicants with convictions for distribution of a
controlled substance, while admitting White applicants with such convictions.
V.

Conclusion

The Fair Housing Act prohibits both intentional housing discrimination and housing
practices that have an unjustified discriminatory effect because of race, national origin or other
protected characteristics. Because of widespread racial and ethnic disparities in the U.S. criminal
justice system, criminal history-based restrictions on access to housing are likely
disproportionately to burden African Americans and Hispanics. While the Act does not prohibit
housing providers from appropriately considering criminal history information when making
housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a
legally sufficient justification. Thus, a discriminatory effect resulting from a policy or practice
that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be
justified, and therefore such a practice would violate the Fair Housing Act.
Policies that exclude persons based on criminal history must be tailored to serve the
housing provider’s substantial, legitimate, nondiscriminatory interest and take into consideration
such factors as the type of the crime and the length of the time since conviction. Where a policy
or practice excludes individuals with only certain types of convictions, a housing provider will
still bear the burden of proving that any discriminatory effect caused by such policy or practice is
justified. Such a determination must be made on a case-by-case basis.
Selective use of criminal history as a pretext for unequal treatment of individuals based
on race, national origin, or other protected characteristics violates the Act.

Helen R. Kanovsky, General Counsel

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