Disparate impact holds that certain practices in employment, housing, etc., may be considered discriminatory under the Act, if they have a disproportionately "adverse impact" on certain members of a protected class, i.e. those falling into the following groups: Race, color, religion, sex, disability, familial status or national origin. The simplest explanation of how disparate impact works is by the following example:
A landlord may be found to have discriminated against a prospective tenant, not because of an intentional discriminatory act, such as rejecting him or her based upon race or religion, but unintentionally, because the landlord relied upon a perfectly legal basis, except that it had a disproportionately adverse impact on members of a protected class. Proof of the “disproportional impact” is usually based upon some statistical correlation showing that a certain class of protected persons are impacted more than others. In other words, unintentional discrimination can be found to be a violation of the Act.
According to the Memo (footnotes omitted):
Across the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. 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). 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).
The purpose of the Memo is to issue guidance, mostly by way of examples and prior case law, in how the use of criminal history during the tenant-screening process, may, and may not, trigger a disparate impact result.
MHCO has closely reviewed the Memo and will be providing further guidance shortly. In the meantime, this article is a “heads-up” to landlords and managers regarding the use of criminal background checks in light of the Memo. It is preliminary only, and not intended as “legal advice”. MHCO members should consult their own legal counsel for advice relating to their particular situation.
Summary of Thoughts and Suggestions. Here are some tips based upon information from the Memo:
- 1. Beware of testers, calling over the phone and asking if you will rent to persons with a criminal background. Be careful about answering these blind calls with a “yes” or “no”. Make sure callers understand that no rental decisions are made in advance of reviewing all relevant background information, including a criminal background report. Encourage the caller to either come to the office and pick up the necessary paperwork, or if they prefer, send it to them at their provided address.
- 2. Ultimately, members should plan on making adjustments in their rules and application process. MHCO will elaborate on this further in a future article.
- 3. Do not have a rule or policy that treats arrests, with no conviction, the same as a conviction. If you currently have such a rule, it should not be enforced.
- 4. Do not have a blanket guideline providing, for example, that conviction for any crime is an automatic denial.
- 5. Be sure that all rules or policies concerning criminal records are uniformly enforced – no exceptions. However, note No. 7 below. You should avoid a policy saying that all persons with a felony are automatically disqualified. There is a world of difference between an ex-felon who served time for embezzlement ten years ago and has been a contributing member of society ever since vs. an ex-felon who served time for aggravated battery, and has been in and out of jail for similar violence over the past five years.
- 6. If possible, evaluate all other rental history, such as prior tenancies, employment, credit, income and affordability, before even going to the results of a criminal background check. If the prospective tenant does not pass one or more of these criteria, then the rejection can be based on that, thus avoiding the use of criminal background reports and disparate impact issues entirely.
- 7. In evaluating an applicant’s criminal history, do not use a “one size fits all” approach. There are several gradations of severity. Additional issues need to be addressed before making a decision to reject a prospective tenant based upon criminal history. For example:
- a. How long ago was the conviction? (Convictions over 6-7 years old, with no further convictions, in most cases should probably not be used as the basis for a denial (excluding registered sex offenders, or those convicted for violent crimes).
- b. What has the person been doing since release?
- c. Has the person been convicted once, or on multiple occasions?
- d. What was the nature and severity of the crime?
- 8. Note that according to the Memo, a refusal to rent to an applicant who has a conviction for one or more drug crimes involving the manufacture or distribution (not mere possession) of a federally defined controlled substance is immune from a disparate impact claim. In other words, a landlord or manager may legally base the refusal to rent to a prospective tenant based upon his or her conviction for manufacture or distribution will not result in a violation of the Act, based upon disparate impact. Per the Memo: “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).’”
- 9. ORS 90.303 (Evaluation of Applicant) addresses some of the same issues as in the Memo, but not all. And where there is similarity, Oregon law does not go as far as the Memo on the issue of criminal records and disparate impact. Oregon’s statute provides:
(1) When evaluating an applicant, a landlord may not consider an action to recover possession pursuant to ORS 105.105 to 105.168 (Oregon’s eviction statutes – PCQ) if the action:
(a) Was dismissed or resulted in a general judgment for the applicant before the applicant submits the application. This paragraph does not apply if the action has not resulted in a dismissal or general judgment at the time the applicant submits the application.
(b) Resulted in a general judgment against the applicant that was entered five or more years before the applicant submits the application.
(2) When evaluating the applicant, a landlord may not consider a previous arrest of the applicant if the arrest did not result in a conviction. This subsection does not apply if the arrest has resulted in charges for criminal behavior as described in subsection (3) of this section that have not been dismissed at the time the applicant submits the application.
(3) When evaluating the applicant, the landlord may consider criminal conviction and charging history if the conviction or pending charge is for conduct that is:
(a) A drug-related crime;
(b) A person crime;
(c) A sex offense;
(d) A crime involving financial fraud, including identity theft and forgery; or
(e) Any other crime if the conduct for which the applicant was convicted or charged is of a nature that would adversely affect:
(A) Property of the landlord or a tenant; or
(B) The health, safety or right to peaceful enjoyment of the premises of residents, the landlord or the landlord’s agent.
- 10. Readers should not assume that compliance with ORS 90.303 means that a denial of tenancy could not result in a disparate impact claim. In other words, landlords and managers should be extra-cautious in this minefield, since where federal law is more restrictive (i.e. burdensome on landlords), it will likely pre-empt state law.
Here are some considerations to keep in mind:
- a. The Memo and ORS 90.303 both prohibit screening applicants for arrests, regardless of the conduct that led to the arrest;
- b. ORS 90.303 says that an arrest which has not been dismissed, but is still pending (i.e. a conviction is still possible) may be considered in tenant screening. The HUD Memo does not address this issue – so we don’t know what the feds would say. Accordingly, it may be prudent to take a more balanced approach in these situations. For example, rather than having a blanket policy that a tenant will automatically be rejected if their charge is still pending, landlords and managers should evaluate the matter based upon (a) When the matter will be resolved, e.g. a week, a month, or a year? (b) What was the charge? (c) If convicted, would the applicant automatically be denied? As noted above, the whole issue of criminal background information is an element of the application process that need not be fully vetted, if, regardless of the crime, its severity or recency, the person would fail the application process on other grounds. If so, there is no need to rely upon the community’s criminal background policy to vet an applicant. However, a word of caution here: Be prudent when selecting a basis for denial. Using a weak reason, versus a stronger one, can be viewed as pretextual if the applicant is a member of a protected class. In other words, beware of using a credit basis for denial if it is “iffy” and exclude the criminal background basis. In these cases, landlords and managers should consult legal counsel; it may be best to use both bases.
- c. ORS 90.303 says that a landlord may consider a conviction for certain conduct, generally relating to threats of violence, drugs, sex, or property damage, which would indicate risks to fellow tenants or the landlord. However, the HUD Memo is broader and more subtle (i.e. it demands an evaluation beyond a one-size-fits-all rejection policy). In short, do not rely solely on ORS 90.303, to the exclusion of the more balanced approach demanded by the Memo.
- d. Unlike the HUD Memo, ORS 90.303 does not address how long ago the conviction occurred, or require an evaluation of what the applicant had been doing since the conviction. (i.e. evidence of rehabilitation). The General Landlord-Tenant Coalition could not reach agreement on whether to use a five or seven year standard in the statute, nor whether multiple convictions should be dealt with differently than single ones. Accordingly, our statute is silent on this. Footnote 34 of the Memo cites to the following authority, which mentions six to seven years:
“(S)ee, 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).”
Conclusion. Landlords and managers could be forgiven for feeling they are caught in a dilemma. If they follow Oregon law, it may not be enough – but at least the statutes are black and white. And while it may be sufficient to follow federal law, today that requires a “disparate impact” analysis, which, at best, is a shifting and nuanced set of “guidelines”. Perhaps most unsettling, now a good faith effort to comply with the tenant application process is not enough. Unintentional discrimination, now known under the more benign title, “disparate impact”, is more of a concept than a law, since it does not depend upon one’s overt actions, - however well intended - but upon the long term “consequences” of those actions based upon inferred and empirical statistics derived from academic writings, analysis, surveys, footnotes, and demographics. Is this something landlords and managers can or should be expected to fully appreciate and understand? The best we can do today is to keep alert to the issue. MHCO will have more on this minefield in coming articles.