Phil Querin Q&A: When Can You Deny Based on Criminal Background

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May 19, 2016
Phil Querin
MHCO Legal Counsel
Querin Law

Question.  Following your article on screening for criminal history, I’m needing some help digesting all the Do’s and Don’ts.  Are there any recent visual aids that might help?

Answer. Your confusion is understandable, because there are no black and white guidelines.  However, attached to this short article is a copy of a publication recently posted on the National Association of Realtors® website. It comes up at the top of the list on a Google search for “NAR disparate impact”, here.  It is simple, straightforward, and something you may wish to use.

If I were to list my rules of thumb[1] that I would follow if I were a manager or park owner, I’d distill them down to the following:

  1. Subject to Nos. 8 and 9 below, don’t screen out persons solely for arrests;
  2. You may distinguish between non-violent vs. violent convictions;
  3. You may distinguish between misdemeanor, driving, and felony convictions;
  4. You may distinguish between a single conviction vs. multiple convictions;
  5. You may distinguish between a recent conviction and one long ago;
  6. You may distinguish between persons who have a verifiable history of rehabilitation following a conviction (You should check personal references for this), vs. those with no such verifiable history;
  7. Related to No. 6, you want to find out where the applicant has lived and worked during the years since the conviction.
  8. Absent compelling mitigating circumstances, I would be very hesitant to admit into a community anyone with a conviction for a violent crime (i.e. any crime against the person, such as assault, etc.) within the last seven years; ditto for arson.
  9. I would automatically reject anyone either under arrest, pending trial or plea, or a conviction anytime, based upon a sexual assault, sexual abuse, or any other sex related crime – regardless of whether they are on any public lists. The reason for this hardline position (as well as No. 8, above) is that as a part of your screening process, the law permits you to consider the safety of others in the community – that should always be your Number One rule of thumb.
  10. You have the absolute right to automatically reject an applicant who has had a conviction for the illegal manufacture or distribution of a controlled substance.
     

 

In conclusion, always remember that if the applicant does not pass screening based upon any other valid criteria, then you do not have to go through the criminal background analysis at all. For example, if a person does not meet the financial requirements, or has a poor rental history, that is sufficient to reject them. Only if they qualify in the other screening areas, but have one or more criminal convictions, should you even need to make the above analysis.


[1] This is to say that I’m not “legally advising” you to follow my list. You may develop your own.