May a landlord deny housing based upon a prospective tenant's criminal record?

By Douglas K. Marsico, Esq.

Landlords perform criminal background checks on rental applicants to determine an applicant’s character and trustworthiness and to assist in providing a safe living environment to other tenants.  If a landlord denies housing based upon an applicant’s criminal record, is that a form of discrimination? Well, yes, of course it is. But, the question is whether it is a form of illegal discrimination.

Fair Housing laws prohibit discrimination against protected classes. These include race, ethnicity, religion, familial status and disability. Some states and localities also add gender and sexual orientation to the list of protected classes. “Criminals” or even “former criminals” are not a protected class and thus are not afforded protection as a class under the Fair Housing laws. You would hope that some common sense will prevail and a landlord would not make an adverse decision based upon a 25-year-old shoplifting charge, for example.

This is not to say that a landlord may be immune from liability in all cases where an adverse decision was upon a criminal record.  Landlords need to be consistent with running criminal background checks and on the application of the results. Landlords who inconsistently run criminal background checks on just certain individuals or rentals based upon the results in an inconsistent manner are inviting Fair Housing hot water.  Such landlords may be accused of discrimination in their application of the criminal background check policy as it pertains to certain protected classes. It is a violation of Fair Housing laws to treat a protected class differently even where there is nondiscriminatory basis (i.e. convicted felon) for the adverse decision. If an investigation yields that an African American applicant with a felony past was denied housing while a Caucasian applicant with a felony past was not denied housing, the landlord has big legal problems. Just remember as a general rule that discrimination is usually not unlawful discrimination when it is applied to everyone in the same way.

There is one more caveat. In March 2013, the Department of Housing and Urban Development issued a Final Rule to formalize a national standard to determine whether a housing practice violates the Fair Housing Act as a result of the discriminatory effect. Brett Woodburn wrote about the same in a previous article. Based upon Federal Courts’ rulings, the Final Rule provides that liability under the Fair Housing Act may be established based upon a showing that a neutral practice has a disparate impact on a protected class. This could bring into question the practice of denying housing just because a criminal background check shows past convictions, especially if those decisions to deny housing have a disparate impact on a certain protected class.

In summary, denying housing based upon a criminal record is generally not discrimination since criminals are not a protected class.

Mr. Marsico is an attorney with Caldwell & Kearns which serves as general counsel to PAR. A portion of his practice is dedicated to providing advice and counsel to real estate licensees and representing and defending real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. He routinely counsels employers on employee relations issues as one of the voices of the PAR Legal Hotline.