HUD Releases New Guidelines to Combat Continued Discrimination For Those Re- Entering Society

by Abby Bova

In light of the frequent discrimination against homeless people with a criminal background, specifically those of color, the U.S Department of Housing and Urban Development (HUD) has established a new set of guidelines for those who are providing housing.  “The Fair Housing Act prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities on the basis of race, color, religion, sex, disability, familial status or national origin” (HUD).  This new movement for HUD will continue the fight for civil rights, begun in the 1960s, as they work for equal opportunity in housing for all Americans.  Kris Keniray, director of enforcement at Cleveland’s Housing Research and Advocacy Center states, “This guidance requires housing providers to reassess their use of criminal background checks and invites fair housing complaints by those unfairly denied housing.  It will be a powerful tool for advocating for the rights of returning citizens”.  As much as one third of the U.S. population has some history with the criminal justice system, with the largest population of incarcerated individuals in the world. 

It is no surprise that a large portion of this prison population, and those who have been accused and arrested, is made up of black and Hispanic individuals, some of whom are serving unjust and unequal sentencing due to racial profiling (HUD).  Over nighty-five percent of this population will be released back to their communities at some point and will need to find some type of housing if they wish to be reintegrated into society.  “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)”, according to the HUD guidance to housing providers release. 

“In the first step of the analysis, a plaintiff (or HUD in an administrative adjudication) must prove that the criminal history policy has a discriminatory effect, that is, that the policy results in a disparate impact on a group of persons because of their race or national origin.  This burden is satisfied by presenting evidence proving that the challenged practice actually or predictably results in a disparate impact”(HUD).  This step has been put into place in order to protect those who have been accused or arrested, but never convicted of a crime.  Additionally, this step protects those who have been convicted of non-violent crimes, which pose no threat to property and other residents.  According to Denis, an outreach worker at Metanoia, “Some people who have a criminal record decide to not bother filling out housing applications because they know they’re just going to be denied”.  This guidance requests that arrest records should not be relied upon alone and may be discriminatory along with a policy that fails to consider other factors such as the age at the time of the offense, how long ago it took place, the nature of the offense, and what the person has been doing in the meantime – is there evidence of rehabilitation, were there any prior or subsequent convictions, etc.  This step will be especially beneficial to young black and Latino men who are commonly falsely arrested due to racial profiling, as well as the rest of the Latino and African American communities who experience racial profiling (HUD).

Accusations and arrests due to racial profiling have become a major topic of discussion over the past several years, and HUD has finally had enough.  These false accusations and arrests are reported to landlords and frequently keep men and women of color out of housing.  HUD asks housing providers to speak more in depth with housing applicants with a criminal record to further investigate the incident.  The housing provider should find out when and why this crime was committed, as well as talk to the applicant about what they have been up to since the arrest and how they have overcome the past.  The HUD lead staff states that those with major charges such as arson, production of meth, and homicide can be denied without much investigation.  However, they ask that charges such as use and possession be further investigated.

“In the second step of the discriminatory effects analysis, the burden shifts to the housing provider to prove that the challenged policy or practice is justified- that is, that it is necessary to achieve a substantial, legitimate, nondiscriminatory interest of the provider” (HUD).   The majority of housing providers claim that their policies are in place in order to protect their residents and their property.  Most courts will accept this as a legitimate reason for the rule.  Therefore, HUD has further implemented a process by which the housing provider must provide sufficient evidence as to how the rule in question protects the residents and their property.  “A housing provider with a policy or practice of excluding individuals because of one or more prior arrests (without conviction) cannot satisfy its burden of showing that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest” (HUD).  Meaning a housing provider cannot claim that he or she will not accept a candidate simply because they were arrested, in the interest of protecting their property and other tenants, because the individual was never charged with a crime.  The majority of these arrests without conviction are a result of racial profiling against innocent citizens (HUD).             

     “The third step of the discriminatory effects analysis is applicable only if a housing provider successfully proves that its criminal history policy or practice is necessary to achieve its substantial, legitimate, nondiscriminatory interests.  In the third step, the burden shifts back to the plaintiff or HUD to prove that such interest could be served by another practice that has a less discriminatory effect” (HUD).  “A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate” (HUD).  For example, if a land lord says that they will only house people with a high school diploma, GED’s don’t count, this could be considered unintentional discrimination because the majority of the population who has a GED in lieu of a high school diploma are African American or Hispanic peoples who grew up in poverty.  With HUD’s new guidelines the accuser must show significant proof that the rule is discriminatory and then they may provide an alternative method that is less discriminatory, but still achieves the main goal the housing provider was attempting to reach through the rule in question.

       The first step in creating true equality is granting everyone their basic rights to food, clothing and shelter.  A staff person at a Cleveland Men’s shelter states, “HUD is the major player when it comes to affordable housing.  These guidelines are long overdue and if they are enforced properly they will make great strides in taking the previously incarcerated off the streets”.  HUD has taken a dramatic step forward towards racial equality in housing through these new guidelines.  As a result of HUD’s fight against racial profiling in housing, they will dramatically decrease the population of homeless black and Latino individuals, slowing the cycle of poverty.  By giving individuals a second chance and a means of escaping poverty the nation will be able to take great strides in eradicating homelessness.  Additionally, by providing housing HUD will decrease the nation’s prison population by removing individuals from desperate situations on the streets, in turn saving these individuals from becoming repeat offenders. 

These new guidelines cover everything from the private sector to HUD subsidized housing.  If found in a situation, which one feels as though they have been discriminated against in housing in North East Ohio one may to contact The Legal Aid Society of Greater Cleveland at 216-687-1900 or www.lasclev.org or Housing Research & Advocacy Center at 216-361-9240 or www.thehousingcenter.org, and they will guide the client through filling a complaint.  This is a big step forward for housing in America as we continue the fight against discrimination. 

Editor’s Note: Information found in HUD’s Document : Office of General Counsel Guidance on Application of Fair Housing Standards to the Use of Criminal Records by Providers of Housing and Real Estate- Related Transactions.  Search HUD Portal for a complete copy.

Copyright Cleveland Street Chronicle April 2016 Issue 23.2 Cleveland Ohio