Mayor Ed Murray of Seattle recently formed an 18 member task force to explore and develop proposals to reduce barriers to housing faced by those with criminal records.
I represent Moco Incorporated. We are a Seattle-based consumer reporting agency specializing in tenant background checks. We asked repeatedly to be granted a seat at the table. Those requests were denied.
My purpose here is to share the perspective of someone with considerable knowledge of the tenant screening space, hoping to bring some balance to the conversation.
A study by VA New England (Homelessness in the state and federal prison system population) found that recent homelessness is 4-6 times greater among state and federal prison inmates than the general population. A reasonable interpretation of the data is that the relationship between homelessness and criminal behavior is to a degree causal – that reducing barriers to housing (and homelessness) will have a favorable impact on recidivism.
Complicating the search for solutions, however, are 1) the landlord’s duty (to themselves and their residents) to exercise care in screening prospective residents; and 2) a lack of consistency between consumer reporting and fair housing law.
The Landlord’s Duty
This is serious business. Call it wrong, and someone gets hurt.
Consider the strangulation death of Eva Dunlap Green at an apartment community operated by the Charlotte North Carolina Housing Authority – at the hands of a neighbor with a criminal history. A lawsuit resulted in a judgement in favor of the plaintiff (the estate of Ms. Green).
Our firm screened an individual who the client then denied. Within a matter of weeks, the individual was arrested, charged and convicted for the rape and murder of two young girls. The decision to deny tenancy, informed by access to the public record, may have saved the lives of several young girls at that apartment community.
Tenant screening companies are consumer reporting agencies (CRA’s – as defined and regulated by the federal Fair Credit Reporting Act – FCRA).
The FCRA prohibits reporting records of arrest filed more than seven (7) years prior to the report date. The FCRA does not limit reporting of criminal convictions. There is a provision in Washington law, however, that limits reporting of criminal convictions to seven years from the date of final disposition. This provision supersedes federal law in the State of Washington.
There is nothing in the statutes, however, specifically prohibiting landlords from doing their own research and considering records of arrest, or convictions, the date of final disposition of which exceed seven years. That said, the department of Housing and Urban Development (HUD) – who have a lead role in enforcement of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act (Act) – have long held that the Act prohibits practices that regardless of intent, have an unjustified discriminatory effect (commonly referred to as a disparate impact) on protected groups.
In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., the Supreme Court of the United States recently affirmed that such practices can form the basis of a Fair Housing Act claim.
The challenge, of course, is finding balance – solutions that taken together reduce barriers to housing without putting landlords and communities at risk.
Taking into account National Statistics on Recidivism, landlords would be irresponsible if they did not consider criminal history as part of the tenant screening process.
There is little doubt, however, that use of records of arrest and conviction can have a disparate impact on those protected by virtue of race and national origin.
Borrowing from the EEOC, then, there are two background screening practices that substantially increase the risk of a disparate impact discrimination claim.
- Taking adverse action based on records of arrest (alone).
- Taking adverse action for any and all felony convictions – regardless of the nature of the offense and when it occurred.
“Banning the box” is a concept that has gained traction (and makes considerable sense) in an employment context – where the majority of applicants are declined based on their resume or interview performance – where the objective is to identify, extend a conditional offer and screen ONLY the top candidate.
Leasing is a different story. “Banning the Box” makes no sense when 80%+ of applicants are screened and approved – sometimes on the spot. Leasing staff do not have the time, training or tools necessary to consider and decide the relevance of each record returned. Perhaps more important, doing so introduces an element of subjectivity that increases the risk of other forms of discrimination.
Align policy with current best practices, HUD’s discriminatory effects standard and consumer reporting law by:
1. Prohibiting blanket policies that deny tenancy for any and all criminal convictions;
2. Limiting denial of tenancy to convictions for specific offenses that in light of the national statistics on recidivism, the landlord (reasonably) determines represent a threat to persons or property;
3. Prohibiting denial of tenancy for convictions, the date of final disposition of which, antedate the report by less than seven years; and finally
4. Prohibiting denial of tenancy for records of arrest alone.
Taken together, these steps will lower barriers to re-entry without exposing the landlord and the community to undue risk.
It is striking to me that despite several appeals by current members of the task force, the SOCR refused to include a representative from a tenant screening company on the task force – a subject matter expert who can speak with authority to tenant screening processes and policy. It is especially telling that only three (of 18) members of the task force represent landlords and the consumer reporting industry. Unfortunate.