Not Renting To Felons Could Be Discrimination, Says Justice Department

Man Who Threatened to Kill His Landlords Sentenced to 40 Years

The U.S. Department of Justice last week weighed in on the issue of landlords categorically not renting to felons saying it can be considered discrimination and a violation of Fair Housing Act.

The Justice Department said the use of criminal background checks by rental housing providers “could product unlawful discriminatory effects in violation of the Federal Housing Act,” according to a release from the Justice Department.

This action follows a story here last week that the State of Washington’s attorney general’s office filing another consent decree against a landlord for illegally discriminating against potential tenants who are felons and saying not renting to felons is racist.

“This filing demonstrates the Justice Department’s steadfast commitment to removing discriminatory barriers that prevent formerly incarcerated individuals from restarting their lives,” Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division, said in the release.  “Women and men who served their time and paid their debt to society need a place to live, yet unlawful housing policies can too often prevent successful reentry to their communities.  While not all criminal records policies adopted by landlords violate the Fair Housing Act, we will take action when they do,” Gupta said.

“Landlords’ categorical refusals to rent to individuals who have served their debts to society can illegally discriminate against those individuals based on their race or national origin,” U.S. Attorney Robert L. Capers of the Eastern District of New York, said in the release.  “This office will continue to work to fight such discrimination.”

not renting to felons could be discrimination says U.S. Attorney Robert L. Capers

Robert L. Capers U.S. Attorney

The Justice Department filed what is called a “statement of interest” arguing that the Fair Housing Act requires that landlords who consider criminal records in evaluating prospective tenants do not use overly broad generalizations that disproportionately disqualify people based on a legally protected characteristic, such as race or national origin.

Not Renting To Felons Cannot Be About General Safety

The brief explains that when a housing provider has a criminal record check policy with a disparate impact, the housing provider must “prove with evidence – and not just by invoking generalized concerns about safety – that the ban is necessary.”  Even then, the policy will still violate the FHA if there is a less discriminatory alternative.

In the statement of interest, “the department aims to assist the court in evaluating whether a housing provider’s policy that considers criminal records in an application process produces unlawful discriminatory effects in violation of the FHA.  Although the FHA does not forbid housing providers from considering applicants’ criminal records, the department states in its filing that categorical prohibitions that do not consider when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then run a substantial risk of having a disparate impact based on race or national origin,” according to the release.

The statement of interest was filed in the U.S. District Court for the Eastern District of New York in Fortune Society Inc. v. Sandcastle Towers Housing Development Fund Corp. et al The case was brought by an organization that helps formerly incarcerated individuals find housing challenging the practices of an affordable rental apartment complex with 917 units in Far Rockaway, Queens.

In this case, the plaintiff argues that the Sandcastle complex had a policy of not renting to felons and refusing to rent to individuals with prior convictions for felonies or misdemeanors other than traffic offenses.

The plaintiff argues that this policy of not renting to felons has an unjustified disparate impact against prospective African-American and Hispanic tenants, in violation of the FHA.  In the statement of interest, the department does not take a position on the factual accuracy of the plaintiff’s arguments, but instead addresses the appropriate legal framework for analyzing its claim.  The legal framework set forth in the filing is consistent with the guidance released by the U.S. Department of Housing and Urban Development in April 2016 concerning how the FHA applies to the use of criminal records by providers or operators of housing and real-estate related transactions. reported with this story that, “There is a growing need for affordable housing for ex-convicts as President Obama frees so many of them.”

According to the White House, President Obama has commuted the sentences of 774 inmates, more than the previous 11 presidents combined. With a total of 590 commutations this year, President Obama has now commuted the sentences of more individuals in one year than in any other single year in our nation’s history.


Obama warns landlords: Criminals have a right to rent

Justice Department brief on housing providers’ use of criminal background checks

Department of Justice warns landlords about conducting criminal background checks on would-be renters

Not renting to felons is racist says Washington State Attorney General

Housing and Urban Development guidelines on using arrest records