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.
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