NAA/NMHC’s new white paper on HUD’s recently-issued guidance on the use of criminal histories in resident screening is now available for NAA members (member login required). The white paper, “Criminal Conviction Screening Policies: Best Practices to Avoid Disparate Impact Liability,” (NAA Login Required to Access) was written by Mike Skojec, Partner at Ballard Spahr, LLP. The white paper reviews the HUD guidance, provides the historical and legal context and recommends best practices for apartment owners and operators.
HUD’s guidance seeks to end blanket exclusions of prospective residents based on criminal history in favor of a more individualized approach. While those with criminal histories are not a protected class under the Fair Housing Act, HUD has created the policy using disparate impact theory. Disparate impact allows fair housing complaints to proceed where actions have a discriminatory result on a protected class even if there was no intent to discriminate.