On April 12, 2022, HUD published a memo titled “Eliminating Barriers That May Unnecessarily Prevent Individuals with Criminal Histories from Participating in HUD Programs.” In this Memo, HUD Secretary, Marcia L. Fudge, announced a department-wide review of HUD’s programs to identify needed changes to ensure HUD’s programs (public housing, RAD, MFH, Vouchers, etc.) are as inclusive as possible of individuals with criminal histories. By October 14, 2022, all relevant HUD program offices must:
- Conduct a review to identify areas where existing HUD regulations, guidance, policies, and sub-regulatory documents (including model leases) may result in creating housing barriers for persons with criminal histories
- Conduct an assessment to determine whether it is “legally permissible and practically feasible” to modify the identified policies, regulations, etc., to make such policies more inclusive for individuals with criminal histories.
This HUD memo also references the previously issued guidance (April 2016) on screening for criminal history that many housing providers are still not aware of.
HUD Guidance on Screening for Criminal History
HUD’s guidance is crucial for housing providers to understand in order to ensure that any criminal background policy being utilized does not discriminate or cause a disparate impact on a protected class.
Disparate Impact Claims
A disparate impact claim can occur when a housing provider has a facially neutral policy, but the policy has a discriminatory impact on a protected class. In April of 2016, HUD provided guidance that addresses screening for criminal history. Specifically, the guidance provided a framework that is now used in disparate impact claims.
- Evaluating Whether the Criminal History Policy or Practice Has a Discriminatory Effect
- Evaluating Whether the Challenged Policy or Practice is Necessary to Achieve a Substantial, Legitimate, Nondiscriminatory Interest
- Evaluating Whether There Is a Less Discriminatory Alternative
Exclusions Because of Prior Arrest
In this guidance, HUD quoted the Supreme Court, “The mere fact that a man has been arrested has very little if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense.” It is for that reason, HUD states that a housing provider who denies housing to a person based on arrests not resulting in conviction cannot prove that the exclusion actually assists in protecting the residents’ safety and/or property. In general, a record of being convicted of a crime serves as sufficient evidence to prove that an individual engaged in criminal conduct. That said, HUD reminds owners/agents employing such a policy that they must be able to prove that the policy or practice is required to “achieve a substantial, legitimate, nondiscriminatory interest.” HUD further states that a “policy or practice that fails to consider the nature, severity, and recency of criminal conduct is unlikely to be proven necessary to serve a ‘substantial, legitimate, nondiscriminatory interest’ of the provider.”
