Can I be Sued for Using Criminal Background Check?

Potential Legal Claims Against Properties Based on Criminal Background Check Policies

April 16, 2020 | By Ryan J. Vatalaro, Esq. | Atlas Law

    As a part of the services Atlas Law provides to property ownership and management companies, we provide advice and defense for housing discrimination claims. Recently, a number of Atlas Law’s clients and other properties have been accused of discrimination for not renting to convicted felons. Frequently, the accusations are coming from an entity called “Florida Fair Housing Alliance.”

HUD Says Certain Criminal Background-Check Policies May Be Discriminatory

Over the years, housing discrimination claims have expanded from race and ethnicity to also include claims based on disabilities, ‘support animals,’ and criminal history, among other things. Discrimination claims based on criminal background check denials have increased due to a 2016 HUD opinion on the use of background checks for tenant applications. In the opinion, HUD states that a policy which automatically excludes everyone with a criminal record may have a discriminatory effect because minorities are disproportionately arrested and incarcerated compared to the general population. Therefore, according to HUD, certain background check policies could be deemed discriminatory even though the policy is based on criminal history, not race, and regardless of whether the landlord had any intent to discriminate. 

You May Receive Calls from Housing Discrimination Testers

Housing discrimination laws allow entities to call properties, pose as a prospective renter, and ask questions testing whether the person on the other side of the line says something which violates Fair Housing laws. These callers posing as renters are commonly referred to as ‘testers’ because they are testing whether a property is in compliance with Fair Housing guidelines.

Florida Fair Housing Alliance has been using a tester to call properties and ask questions about criminal background check policies. Here is what may happen to you: you receive a call from an unidentified prospective renter who asks whether you accept convicted felons. If you say no, in a few weeks you receive a letter from an attorney alleging that you have engaged in housing discrimination and should contact him about a settlement. This has already happened to a number of properties in Florida and federal lawsuits have already been filed against the properties which do not reach a settlement.

What You Should Do to Avoid Legal Liability

Properties should be reviewing or creating policies to ensure compliance with the Fair Housing Act. Properties should regularly train staff, especially those answering the phone, on Fair Housing compliance. Specifically, staff should not advise prospective renters over the phone whether or not they will pass a credit or background check. The policy should be that submitting an application is the only way to find out if you will be approved or denied because each application is considered on a case-by-case basis.

If you think you may have received a call about criminal background checks or if you have already received a letter from an attorney, you should immediately contact your attorney or retain an attorney if you do not already have one.

Attorney advertisement. Atlas Law, PLLC, office in Tampa, FL. Information in this article is intended for a wide audience. This information is not intended to provide legal advice, nor is it to be relied upon as legal advice. Readers should consult their own attorneys for advice specific to their situation before taking any action in response to information in this article. Questions about this article should be directed to Atlas Law, PLLC, (813) 241-8269 or to another licensed attorney. Atlas Law, PLLC, All Rights Reserved 2020 ©

Understanding the Protected Classes Under the Fair Housing Act

The Fair Housing Act protects people from discrimination in all aspects of housing. It applies not only to renting and buying, but also to applying for a mortgage, seeking assistance, and more. The Fair Housing Act came as a part (Title VIII, to be exact) of the Civil Rights Act of 1968, which was signed by President Lyndon Johnson just days after the assassination of Rev. Dr. Martin Luther King, Jr.

This act protects several classes. In other words, no one can discriminate against you because of the following things:

  • Race
  • Color
  • National Origin
  • Religion
  • Sex
  • Familial Status 
  • Disability

Other than familial status, these classes are self-explanatory. “Familial status” refers to the presence of children in the family or a person’s pregnancy.  It can also refer to multiple generations living in the same home. 

The Fair Housing Act is enforced by the Department of Housing and Urban Development (HUD). To test that sellers and others are complying with the act, HUD (on both a national and local level) hires people to pose as buyers or renters. These individuals are commonly referred to in the industry as “testers.”  These people must report any discriminatory practices they observe. To avoid accusations of discrimination, those working in housing must be careful with their word choice not only in writing, but also in person and on the phone.

HUD also investigates claims of housing discrimination that are reported to them and can pursue legal action against those who are discriminating.

How to Recognize Discrimination

 The following are indicators that can suggest the presence of discrimination:

  • A prospective tenant was asked to provide more or different documents from other prospective tenants.
  • A prospective tenant was told they did not qualify, based on different qualifying standards from other prospective tenants.
  • The landlord or other person involved in the situation made disrespectful remarks.

What are legitimate reasons that someone may not qualify for housing?

While you can’t deny someone housing because of their race, color, national origin, religion, sex, familial status, or disability, it is still perfectly legal to turn someone away for other reasons. These include:

  • Poor credit
  • Not enough income to pay rent
  • Criminal history (although HUD put out a memorandum indicating that this may not be a valid reason for rejecting a tenant)

Who can help me with a Fair Housing issue?

If you are a landlord seeking better understanding of the Fair Housing Act, contact Atlas Law today. We provide counsel to help you handle your property properly. Our firm is unique because we can help you with your legal real estate needs across the entire state of Florida. Contact us today at (813) 241-8269.

Understanding the Protected Classes Under the Fair Housing Act

Landlords are subject to a wide range of regulations and laws, including federal, state, and local. The Fair Housing Act (“FHA”) is a federal law that strives to eliminate discrimination against tenants.

An Overview of the Fair Housing Act

Prior to the Fair Housing Act, discrimination was perceived as a rampant problem for those renting or purchasing a home. The goal of the Fair Housing Act is to prevent landlords from discriminating against current, future, or prospective tenants because of specific protected characteristics or attributes.

Protected Classes

Currently, the Fair Housing Act protects against discrimination based on seven different categories:

  • Race
  • Religion
  • Color
  • Sex
  • National origin
  • Disability
  • Familial status (refers to having a child, being pregnant, or being in the process of adopting a child)

The FHA forbids discrimination against tenants based on characteristics included in the list above. This does not mean that a tenant cannot be turned away for other reasons. For example, a landlord cannot refuse to rent to a disabled individual who has an emotional support animal that exceeds the weight or breed restriction for the community. However, a housing provider can refuse to rent to a disabled person with an emotional support animal if the person does not have a steady source of income or has a criminal background that is unacceptable (please be sure your criminal background check policy is not in violation of the FHA before denying due to a criminal background).

Preventing Legal Issues

The key to avoiding lawsuits based on FHA discrimination is having a clear screening and tenant selection process. Having a documented screening process that you follow for every single tenant and every single vacancy can be strong evidence against claims of discrimination. You should be very careful about what you say in housing ads, as well as what you say to prospective tenants on the phone or in person. Anything that implies discrimination—even if it’s an unintentional implication—could put you at risk. Working with an attorney with experience in landlord/tenant issues is one way to ensure that your rental language and advertising is in compliance.

Avoid Overcompensating for the FHA

The consequences of an FHA violation can be substantial for a landlord, so it should come as no surprise that many overcompensate while trying to avoid discrimination claims. Consider, again, the example above. A landlord might choose to rent to a disabled person with a dog that exceeds the weight or breed restrictions even though that individual has an unacceptable credit rating or a criminal background. This, too, could result in a violation of the FHA. Courts have held that landlords are discriminating against other prospective tenants by favoring the tenant in question and ignoring information that would otherwise disqualify the tenant from renting.  This is why a uniform tenant screening process is so important.  

Prevention is the best way to avoid issues with tenants or prospective tenants. The team at Atlas Law has extensive experience litigating difficult Fair Housing Act cases throughout the state of Florida—call 813-241-8269 to discuss your legal needs.

3 Examples of Housing Discrimination

Equal access to housing is a civil right protected by law on both state and federal levels. The Fair Housing Act, which was originally adopted in 1968, prohibits discrimination in house sales, rentals, and financing on the basis of race, color, religion, sex, or national origin. Similar protections are also enshrined in Florida Statutes, which broaden the scope of persons protected from discrimination by prohibiting unfair treatment based on disability and familial status, among other things. Those who experience discrimination and unfair treatment with regard to housing may be entitled to file a civil lawsuit and claim financial compensation against the perpetrators.  In addition to a civil lawsuit, HUD can bring administrative action against a housing provider that violates the Fair Housing Act, which could result in financial and other penalties.

As a landlord, you need to be aware of recognized forms of discrimination. A lawsuit can destroy your reputation. In this article, we will explore a few of less notorious examples of discrimination you need to be wary of when leasing a new house or apartment.

1. Pet Restriction and Disabled Persons

Generally speaking, landlords are entitled to create rules with regards to the use of the property they put up for rent. As a result, your lease agreement may contain some legally enforceable restrictions that renters will have to adhere to when living in the property. Some provisions may prohibit all pets or restrict certain breeds or types of animals.

Nevertheless, if a renter is legally disabled and has a service animal, it may be considered discrimination based on disability if you tell someone they won’t be able to live there because the apartment or house doesn’t allow pets. This may be an instance of discrimination regardless of the kind of service animal and whether they need it for a physical or mental disability. However, the circumstances of each case may vary, so it is always best to consult an attorney experienced in Fair Housing Act cases before taking any action.

2. Construction Modifications and Disabled Persons

Similar to pet restrictions, the lease agreement may also prohibit the introduction of certain modifications to the physical design of the property. Such prohibitions may also be imposed by a condominium or homeowners association. However, what happens if someone becomes disabled due to a sudden medical condition and now the tenant requires certain home modifications? If you prohibit tenants from making such changes in the design of the property in order to accommodate the disability, it may be seen as discrimination. To take the best course of action available, it is advisable to consult a lawyer beforehand.

3. Discrimination Based on Family Status

Florida Statutes also prohibit discrimination based on family status. In practical terms, this means that property owners cannot refuse to offer housing to families with children or make arbitrary rules with regards to that (such as “families with children are only allowed on the first floor”). Another notorious example of discrimination may be charging an additional rental fee based on the number of family members residing on the property.

Experienced Housing Discrimination in Florida? Contact Atlas Law

Housing discrimination may take many forms. At times, you may be unsure if a policy, rule or regulation may be construed as discrimination. If you need legal advice and representation in relation to any legal issue related to Florida housing law, do not hesitate to contact our experienced attorneys at Atlas Law. Call us at 813.241.8269 to receive a free consultation regarding your case.

Property Owners: How to Ensure You’re In Compliance with the Fair Housing Act

The Fair Housing Act (the “Act”) was introduced in the United States in 1968 to guarantee equal rights to rent or buy a dwelling – such as a house or an apartment – for all. Originally prohibiting housing discrimination or tenant screening on the basis of race, color, religion, and national origin, over the years other groups have gained protection under the Act. Today, it is illegal to refuse to sell or rent a property to any person because of race, color, disability, religion, sex, familial status, or national origin. While the Fair Housing Act is a piece of legislation operating on the federal level, the State of Florida fully adopted it, making it a part of the state law as well.

According to Florida Fair Housing Laws, everyone who applies for a lease agreement or seeks to purchase real estate must be given the same consideration and treated fairly. While some restrictions and requirements on prospective tenants may be legal, landlords and property owners may at times inadvertently engage in actions that are tantamount to discrimination and put them in violation of the fair housing laws. In this article, we explain how to avoid that and ensure compliance with the Fair Housing Act.

Classes Protected Under the Act

As mentioned above, the Fair Housing Act prohibits discrimination on the basis of a prospective tenant’s or property buyer’s race, color, disability, religion, sex, familial status, or national origin. The definition of race, color, religion, and sex are straightforward and do not need further explanation. However, a good understanding of what is meant by disability and familial status can help avoid any potential violation of the Act.

Familial status is defined as “one or more individuals (who have not attained the age of 18 years) being domiciled with a) a parent or another person having legal custody of such individual or individuals; or b) the designee of such parent or other person having such custody, with the written permission of such parent or other person.” What this means in practice is that a refusal to rent or sell a property to a family with children, or to a pregnant woman, simply because they have kids – as well as different treatment of the tenants/buyers based on this factor – may constitute a violation of the Act.

Disability is defined as “a physical or mental impairment which substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment.” It is important to note that under this definition and its current understanding, the use of, or an addiction to, illegal substances doesn’t constitute a disability.  

Unlawful Actions

Avoiding discrimination of the classes mentioned in the Fair Housing Act means that a landlord or property owner cannot treat their prospective tenants or buyers differently on the basis of the race, color, disability, religion, sex, familial status, or national origin. This may include:

  • refusing to rent or sell a property
  • providing different rental/sale terms, conditions, or privileges
  • advertising indicating preference
  • interfering with a tenant’s enjoyment or exercising their housing rights as well as coercion, intimidation, or threatening

Lawful Requirements

Ensuring compliance with the Fair Housing Act doesn’t mean that landlords and property owners cannot set some requirements for the prospective tenants or buyers. The key here is consistency – the same standards must apply to all potential applicants. Some of the reasonable requirements may include:

  • meeting a minimum credit score
  • meeting a minimum requirement with regard to income and time of employment
  • no criminal record
  • no prior evictions or foreclosures

Of course, the law continues to evolve, and the Act is the source of the recent influx of emotional support animal litigation.  Further, HUD has published opinions regarding the legality of utilizing criminal background checks in tenant screenings. What was once a clear issue has become murky and gray based on HUD’s insistence that these matters be reviewed on a “case-by-case” basis.

Ensure Compliance – Contact a Lawyer

If you are a landlord or property owner in Florida, you need to have a proper and lawful screening process in place for your prospective tenant. A proper screening process may help filter out irresponsible tenants who could jeopardize the status of your property, as well as your finances.

Nevertheless, violating the Fair Housing Act, even inadvertently, can lead to litigation and fines. That is why it is so important to consult an experienced real estate lawyer to ensure that your screening process doesn’t violate any of the aspects of the Act.

Atlas Law is one of the few law firms in the state of Florida that has successfully defended a landlord in a Federal jury trial regarding the removal of an alleged emotional support animal.  If you feel that your screening process needs a review from an attorney or if you are involved in litigation over perceived Fair Housing Act violation, contact us immediately. Call us at 813.241.8269 or reach out to speak with Brian Chase directly at brian@atlaslaw.com.