Tenant screening criteria that denies tenancy for any criminal conviction, regardless
of the nature of the offense or when it occurred, increases the risk of
"disparate impact" discrimination claims against the landlord.
Disparate impact is a legal theory for proving unlawful
discrimination. Tenant screening criteria that has a greater statistical impact
on a protected class (race, national origin, etc.) is said to have a disparate
impact on that class. Once a member of a protected class proves that a
policy or practice has a disparate impact on the class, the burden is shifted to
employer or landlord (for example) to prove the practice is truly relevant to
the position or tenancy (to establish the business necessity).
An individual may well be able to prove that a specific
practice (consideration of income and credit standing, for example) has a
disparate impact on a protected class. A landlord will have little
difficulty proving that things like income, credit standing and previous rental
history are applicable to the tenancy, however.
Similarly, a plaintiff may be able to prove that
underwriting criminal records (arrests & convictions) has a disparate impact on
a protected class. Odds are good that the landlord will be able to
convince the court that recent convictions for serious offenses (crimes against
persons or property and serious drug related offenses for example) are applicable to the
tenancy. Convictions for many minor offenses and offenses that occurred
long ago are a different story.
Landlords are well advised, therefore, to include in
their tenant screening criteria offenses that are clearly relevant to the tenancy and limit
consideration of those offenses to a reasonable period of time.
The good news is that it is easy to establish a specific
list of offenses, conviction of which has a "manifest relationship" to
the tenancy. There is also some precedent (in state law) for using "seven
years from date of final disposition" as a cut-off - not considering anything older
than that. Date of final disposition means the date the individual
completed their sentence and fulfilled any other obligations associated with their
sentence or release. Convicted felons who do not re-offended for seven
years from the their date of final disposition are arguably no more likely to
re-offend than the general population.
Use of active warrants is likely defensible. Use
of records of arrest, however, is likely not.
So... the bad news is that things are a bit more
complicated than in the past. But... the good news is that a well
constructed tenant screening criteria... one that limits
denials to specific offenses occurring within seven years of final disposition -
serves to mitigate the risk of a disparate impact discrimination
claim and ) deny fewer applicants good applicants.
For help developing or refining your own tenant
screening criteria, see the
Rental Criteria Worksheet the
Landlord
Page on
MyScreeningReport.com®.
MyScreeningreport.com®
is a service of Moco Incorporated.