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Rental Housing’s Elephant in the Room The probable disparate impact of unlawful detainer case records in rental housing admissions

Eric Dunn, Staff Attorney Northwest Justice Project 401 Second Ave. S., Ste. 407 Seattle, Washington 98104 Tel. (206) 464-1519, ext. 234 [email_address] Merf Ehman, Managing Attorney Columbia Legal Services 101 Yesler Way Seattle, Washington 98104 Tel. (206) 287-9651 [email_address]

Fair Housing in Washington “ It is an unfair practice for any person … because of sex, marital status, sexual orientation, race, creed, color, national origin, families with children status, honorably discharged veteran or military status, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal … (b) To discriminate against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection therewith…” RCW 49.60.222(1) (Wash. Law Against Discrimination) See also 42 USC § 3601 et seq. (Fair Housing Act)

Forms of discrimination may include: Refusing to rent, sell, or negotiate Deterrence by advertisements or representations Denying financing, maintenance, utilities, insurance, or other housing-related services Providing housing (or related services) but on inferior terms (i.e., discrimination “in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection therewith”) Equal Access, Use & Enjoyment

Residential Tenant-Selection Landlord advertises property for rent Prospective tenant applies for the rental Landlord considers application “First come, first-served” “Competitive admissions” Landlord makes rental decision Offers, or does not offer, to admit applicant

Disparate Treatment “Classic” form of discrimination Treating a person less favorably than others due to membership in a protected class Key is discriminatory intent On Montgomery between Linden and Norton. 2843 Montgomery St. 2 MONTHS RENT FREE!! Lovely 2 bedroom and 1 bath house. Large living, dining room, laundry room, and a large porch perfect for the summer. Partially fenced yard. Pets ok with extra deposit. Owner pays garbage. No section 8. Good credit required. One year lease required.

Circumstantial Evidence The McDonnell-Douglas Test: Person belongs to protected class; Person is qualified for the rental; Person applies for the rental but is denied; Housing remains available to others Raises presumption of disparate treatment Landlord must offer “legitimate, non-discriminatory reason(s)” for the denial Court will assess whether the proffered reason(s) is/are sincere, or a pretext for discrimination

Disparate Impact “ Outwardly neutral practice ” that causes “a significantly adverse or disproportionate impact on persons of a [protected class].” Pfaff v. U.S. Dep't of Housing & Urban Dev. , 88 F.3d 739, 745 (9th Cir. 1996) (quoting Palmer v. U.S. , 794 F.2d 534, 538-39 (9th Cir. 1986). A tenant-selection policy that causes a disparate impact on a protected class is unlawful unless justified by a “ compelling business necessity ” No requirement for discriminatory intent

What makes a good tenant? Ability to afford rent, utilities, etc. Amount and stability of income, assets Other obligations, debts Credit history Behavioral suitability Applicant not likely to damage the premises Applicant likely to coexist well with neighbors

Tenant-Selection Factors Favored: Stable employment High income/wealth Positive rental history References/referrals Lack of criminal history Lack of civil litigation “ Good credit” Disfavored: Unemployment Public assistance “ Bad credit” Debts to past landlords Adverse rental history Criminal records Bankruptcies Evictions Other civil litigation

Criminal & eviction records often lead to denial of housing

Does the denial of housing to applicants with criminal or eviction records cause a disparate impact on members of any protected class?

Criminal Records: Racial Disparities African-Americans are 12.9% of U.S. population 2000 US Census African-Americans are arrested and incarcerated at rates disproportionate to their numbers About 27% of persons arrested each year FBI Uniform Crime Reports, 2003 Make up 45% of U.S. prison population Sourcebook of Criminal Justice Statistics, 2000 8.2 times more likely to be incarcerated than whites More than 9 times more likely in Washington Human Rights Watch , Punishment and Prejudice: Racial Disparities in the War on Drugs, Vol. 12, No. 2(G) (May 2000) Denying housing to people with criminal records causes a disparate impact on African-Americans

Is the denial of rental housing to applicants with criminal records justified by a compelling business necessity?

Common justifications given for rejecting rental applicants with criminal records… A person with a criminal record: May pose a danger to the landlord or neighbors Could engage in criminal activity at the property Could damage the physical premises Then again, so could a person with no criminal record…

Does a landlord owe a duty to protect tenants from criminal acts of third parties (e.g., other tenants? Only if the criminal acts were foreseeable. City of Bremerton v. Widell, 146 Wn.2d 561, 51 P.3d 733 (2002)

After 5 Years, Offenders No More Likely Than Non-Offenders to Be Re-Arrested (Kurlychek, et al. “Scarlet Letters & Recidivism: Does An Old Criminal Record Predict Future Criminal Behavior?,” 2006)

Criminal Records: A Poor Proxy The disproportionate representation of African-Americans and Latinos among Washington’s incarcerated population not a product of higher rates of crime commission. Task Force on Race and the Criminal Justice System, “Preliminary Report on Race and Washington’s Criminal Justice System” (2011) “ [T]he significant racial disparities in arrest rates are not fully warranted by race or ethnic differences in illegal behavior.” --Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir. 2010)*

Race Disparities: Factors African-Americans more than 70% more likely to be searched by police than Whites Latinos 50% more likely to be searched African-Americans 62% more likely to be imprisoned for felony drug offenses (than similarly-situated Whites) Also, focus on crack cocaine has racial impact African-Americans get harsher treatment in: Conditions on pre-trial release (bail) Legal financial obligations & asset forfeitures * Task Force on Race & Crim. Just. Syst., “Preliminary Report on Race and Washington’s Criminal Justice System” (2011)

Criminal history: factors What was the offense? Focus on the facts of the crime How does the offense relate to housing? How long ago did the offense occur? What were the circumstances? Age of offender Drug/alcohol use Evidence of changed circumstances

Relevant Cases Green v. Missouri Pacific R.R., 523 F.2d 1290 (8th Cir. 1975) Title VII prohibited employer from categorically denying employment to applicants with prior criminal convictions because of the disparate impact such a policy would have on African-Americans (who, at that time, were between 2.2 and 6.7 times more likely to be convicted of a criminal offense than whites) Talley v. Lane, 13 F.3d 1031 (7th Cir. 1994) Upheld HUD-prescribed criteria that excluded from public housing “individuals with a history of convictions for property and assaultive crimes [who] would be a direct threat to other tenants”

Relevant Cases: Washington Oliver v. Pacific Northwest Bell Telephone Co., Inc., 106 Wn. 2d 675; 724 P.2d 1003 (1986) Employer’s policy of terminating employment for “dishonest acts“ was not an unfair practice Employer made case-by-case determinations, not a categorical policy: “ [Employer’s] discretionary and subjective decision making process in determining action to be taken when an employee was found to have committed a dishonest act and/or was convicted thereof.").

Rule: denial of rental housing based on criminal convictions In Washington, a landlord probably has a compelling business necessity to deny a residential housing application based on a prospective tenant’s conviction record only if: On a case-specific analysis of all relevant factors, a reasonable landlord would find the applicant to present an undue risk of engaging in future criminal activity at the premises, or that would pose a danger to the landlord, neighbors, or the property itself

Eviction Records Could a residential landlord who categorically rejects any applicant who has been sued for eviction (i.e., unlawful detainer) cause a disparate impact on (members of) any protected class? Yes: such a policy would have a disparate impact on any group that is more highly-represented among unlawful detainer defendants If such a group exists, the categorical denial of applicants with UD records is unlawful unless justified by a compelling business necessity!

Eviction Records Eviction filings detected through SCOMIS Data entered by court clerk upon case filing Circumstances, case outcome seldom considered

Possible business justifications for denying housing to applicants with unlawful detainer records: The applicant may be irresponsible Financially or otherwise The applicant may be indifferent to or contemptuous of tenancy obligations The applicant may be unable to take proper care of rental premises Others?

UD Records: Factors What was the reason for the UD? Allegations in complaint, eviction notices What were the surrounding circumstances? May or may not appear in written answer or pleading How was the case resolved? If judgment, was it on merits or by default? Any post-judgment proceedings? Evidence of changed circumstances?

Rule: denial of rental housing based on eviction filings In Washington, a landlord probably has a compelling business necessity to deny a residential housing application based on a prospective tenant’s eviction record only if: On a case-specific analysis of all relevant factors, a reasonable landlord would find the applicant to present an undue risk of defaulting in rent or violating some other material term of the tenancy But remember, this only matters if a disparate impact can be shown!

Disparate Impact Revisited Possible correlatives of eviction: Tenuous employment/unstable income Low income/minimal assets Having children (esp., as a single parent) Lack of support networks Limited access to credit/emergency funds Having a roommate/shared living situation Candidate protected classes: Race, color, ethnicity, gender, FwC, disability

Empirical Studies (1) A recent study in Milwaukee, WI, showed that low-income African-American women, especially those who were single mothers, tended to face eviction at disproportionately higher rates. Desmond, Matthew, “Eviction and the Reproduction of Urban Poverty,” Paper presented at the American Sociological Association Annual Meeting, Hilton San Francisco, San Francisco, CA , Aug 08, 2009 A 2002 study in Oakland, CA, found that 78% of “30-day no cause” evictions were of “minority households”

Empirical Studies (2) Chicago, 1996: 72% of defendants appearing in eviction court were African American, 62% were women Philadelphia, 2001: 83% of tenants facing eviction were “nonwhite,” 70% were “nonwhite women” Other studies in Baltimore, NYC, and LA “have shown that those who are evicted are typically poor, women, and minorities.” Hartman, Chester & David Robinson, “Evictions: The Hidden Housing Problem,” 14 Housing Policy Debate 461 (2003)

Eviction Demographics: King County

King County Eviction Data A 2010 Study by students in the UW-Bothell Policy Studies Program* found that: A moderate negative relationship exists between the percentage of White tenants in a zip code area and that zip code area’s UD rate A moderate positive relationship exists between the percentage of non-White tenants in a zip code area and that zip code area’s UD rate Strongest Correlations: Black, Multi-Racial tenants Is this methodology sufficiently persuasive? *Gehri, Leah M., John Lee, Logan Micheel and Damian Rainey,“Tenant Screening Practices: Evidence of Disparate Impact in King County, Washington,” March 16, 2010

The Elephant in the Room The categorical denial of rental applications based on UD filings is widespread in Wash. Probable disparate impact on race, color, gender, families w. children, disability, or other protected class Discriminatory effect not likely justifiable on grounds of compelling business necessity.

Eliminating Bias in the System Washington courts should begin tracking demographic information about unlawful detainer defendants Which, if any, groups face eviction suits at rates disproportionate to their numbers? Rationales: Courts should ensure their records are not being used to engage in housing discrimination Access to justice: reflexive denials based on UD filings erodes the integrity of the forum Especially pernicious if effect is discriminatory

Access to Justice Concerns 2.0 The categorical exclusion of UD defendants, as an industry norm, “disciplines” tenants SkipWatch (LexisNexis): “ A proprietary Rental Housing Database designed to increase consequences for residents who pay late or commit lease defaults and encourages {sic} resident responsibility.” Non-discriminatory,* but may be illegitimate Tantamount to employee blacklisting See also RCW 49.60.030(1)(f)

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ATJ Conf RHEIR 6 1 2011

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Editor's Notes