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Discriminatory Use of Criminal & Eviction Records in Rental Applications

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The document discusses how denying rental housing applications based on criminal or eviction records can disproportionately impact protected classes like people of color and women. While safety and financial responsibility are legitimate concerns for landlords, simply rejecting applicants with any criminal or eviction history may not be justified and could violate fair housing laws by having an unjustified disparate impact. The document argues landlords must consider individual circumstances of an applicant's criminal or eviction history on a case-by-case basis to avoid unfairly discriminating against protected groups.

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The Harder they Fall: How the indiscriminate use of unlawful detainer records in rental housing admissions causes a disparate impact on women, people of color, and families with children
Eric Dunn, Staff Attorney Northwest Justice Project 401 Second Ave. S., Ste. 407 Seattle, Washington 98104 Tel. (206) 464-1519, ext. 234 EricD@nwjustice.org
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 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)
Disparate Treatment рClassic form of discrimination Treating a person less favorably than others due to membership in 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.
Disparate Impact Outwardly neutral practice that causes a significantly adverse or disproportionate impact on persons of a [protected class]. Pfaff v. HUD, 88 F.3d 739, 745 (9th Cir. 1996) A tenant-selection policy that causes a disparate impact on a protected class is unlawful unless justified by a compelling business necessity Discriminatory intent (or lack thereof) not an issue
Rental applications are commonly denied due to criminal or UD records
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
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 Washingtons Criminal Justice System (2011)
Is the denial of rental housing to applicants with criminal records justified by a compelling business necessity?
What makes a good tenant? Ability to afford rent, utilities, etc. Amount and stability of income, assets Other obligations are manageable Credit history Behavioral suitability Applicant not likely to damage the premises Applicant likely to follow basic rules Applicant likely to coexist well with neighbors
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
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) 13
Criminal Records: A Poor Proxy The disproportionate representation of African- Americans and Latinos among Washingtons 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 Washingtons Criminal Justice System (2011) р[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)*
Criminal history: factors What was the offense? How does the offense relate to housing? How long ago did the offense occur? What were the surrounding circumstances? Age of offender Drug/alcohol use Have conditions changed? Has the applicant become less-likely to commit similar offenses in the present/future?
Answers: Whether the denial of a rental applicant on the basis of a criminal record is justified by business necessity depends on the specific circumstances, and can only be determined on a case-by-case basis. A housing provider that denies applicants based on criminal records, without making case-specific determinations, probably violates the Fair Housing Act.
Does a residential landlord who rejects applicant based on eviction (i.e., unlawful detainer) records cause a disparate impact on (members of) any protected class?
Empirical Studies (1) Milwaukee, Wisc. 2009: 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 Oakland, Cal. 2002: 78% of 30-day no cause evictions were issued to minority households
Empirical Studies (2) Chicago, Ill. 1996: 72% of defendants appearing in eviction court were African American, 62% were women Philadelphia, Penn. 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 areas UD rate A moderate positive relationship exists between the percentage of non-White tenants in a zip code area and that zip code areas UD rate Strongest Correlations: Black, Multi-Racial tenants *Gehri, Leah M., John Lee, Logan Micheel and Damian Rainey,Tenant Screening Practices: Evidence of Disparate Impact in King County, Washington, March 16, 2010
Can the denial of rental applications based on unlawful detainer records be justified by a compelling business necessity?
Possible justifications Unlawful detainer record may demonstrate: That the applicant is financially irresponsible That the applicant may be indifferent to or contemptuous of tenancy obligations The applicant may be unable to take proper care of rental premises That the applicant may be disagreeable toward neighbors
Eviction Records Eviction filings detected through SCOMIS Data entered by court clerk upon case filing Circumstances, case outcome seldom considered
UD Records: Factors What was the basis for the UD? Nonpayment? Lease violation? No cause? Allegations in complaint, eviction notices What were the surrounding circumstances? How was the UD 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 tenants eviction record if, and only if: On a case-specific analysis of all relevant factors, a reasonable landlord would find that the applicant presents an undue risk of defaulting in rent or violating some other material term of the tenancy Otherwise, such a denial likely violates the Fair Housing Act due to causing a disparate impact on the basis of race, gender, and families with children!

More Related Content

Discriminatory Use of Criminal & Eviction Records in Rental Applications

  • 1. The Harder they Fall: How the indiscriminate use of unlawful detainer records in rental housing admissions causes a disparate impact on women, people of color, and families with children
  • 2. Eric Dunn, Staff Attorney Northwest Justice Project 401 Second Ave. S., Ste. 407 Seattle, Washington 98104 Tel. (206) 464-1519, ext. 234 EricD@nwjustice.org
  • 3. 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 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)
  • 4. Disparate Treatment рClassic form of discrimination Treating a person less favorably than others due to membership in 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.
  • 5. Disparate Impact Outwardly neutral practice that causes a significantly adverse or disproportionate impact on persons of a [protected class]. Pfaff v. HUD, 88 F.3d 739, 745 (9th Cir. 1996) A tenant-selection policy that causes a disparate impact on a protected class is unlawful unless justified by a compelling business necessity Discriminatory intent (or lack thereof) not an issue
  • 6. Rental applications are commonly denied due to criminal or UD records
  • 7. Does the denial of housing to applicants with criminal or eviction records cause a disparate impact on members of any protected class?
  • 8. 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
  • 9. 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 Washingtons Criminal Justice System (2011)
  • 10. Is the denial of rental housing to applicants with criminal records justified by a compelling business necessity?
  • 11. What makes a good tenant? Ability to afford rent, utilities, etc. Amount and stability of income, assets Other obligations are manageable Credit history Behavioral suitability Applicant not likely to damage the premises Applicant likely to follow basic rules Applicant likely to coexist well with neighbors
  • 12. 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
  • 13. 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) 13
  • 14. Criminal Records: A Poor Proxy The disproportionate representation of African- Americans and Latinos among Washingtons 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 Washingtons Criminal Justice System (2011) р[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)*
  • 15. Criminal history: factors What was the offense? How does the offense relate to housing? How long ago did the offense occur? What were the surrounding circumstances? Age of offender Drug/alcohol use Have conditions changed? Has the applicant become less-likely to commit similar offenses in the present/future?
  • 16. Answers: Whether the denial of a rental applicant on the basis of a criminal record is justified by business necessity depends on the specific circumstances, and can only be determined on a case-by-case basis. A housing provider that denies applicants based on criminal records, without making case-specific determinations, probably violates the Fair Housing Act.
  • 17. Does a residential landlord who rejects applicant based on eviction (i.e., unlawful detainer) records cause a disparate impact on (members of) any protected class?
  • 18. Empirical Studies (1) Milwaukee, Wisc. 2009: 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 Oakland, Cal. 2002: 78% of 30-day no cause evictions were issued to minority households
  • 19. Empirical Studies (2) Chicago, Ill. 1996: 72% of defendants appearing in eviction court were African American, 62% were women Philadelphia, Penn. 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)
  • 21. 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 areas UD rate A moderate positive relationship exists between the percentage of non-White tenants in a zip code area and that zip code areas UD rate Strongest Correlations: Black, Multi-Racial tenants *Gehri, Leah M., John Lee, Logan Micheel and Damian Rainey,Tenant Screening Practices: Evidence of Disparate Impact in King County, Washington, March 16, 2010
  • 22. Can the denial of rental applications based on unlawful detainer records be justified by a compelling business necessity?
  • 23. Possible justifications Unlawful detainer record may demonstrate: That the applicant is financially irresponsible That the applicant may be indifferent to or contemptuous of tenancy obligations The applicant may be unable to take proper care of rental premises That the applicant may be disagreeable toward neighbors
  • 24. Eviction Records Eviction filings detected through SCOMIS Data entered by court clerk upon case filing Circumstances, case outcome seldom considered
  • 25. UD Records: Factors What was the basis for the UD? Nonpayment? Lease violation? No cause? Allegations in complaint, eviction notices What were the surrounding circumstances? How was the UD resolved? If judgment, was it on merits or by default? Any post-judgment proceedings? Evidence of changed circumstances?
  • 26. 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 tenants eviction record if, and only if: On a case-specific analysis of all relevant factors, a reasonable landlord would find that the applicant presents an undue risk of defaulting in rent or violating some other material term of the tenancy Otherwise, such a denial likely violates the Fair Housing Act due to causing a disparate impact on the basis of race, gender, and families with children!

Editor's Notes

  • #21: Evictions most common in neighborhoods with highest concentrations of African-American renters