Does Screening for Eviction Records Violate the Fair Housing Act?

Posted by Eva Wingren on April 29, 2016

We tend to think of the Fair Housing Act as covering access to housing—getting “into” housing. But it also applies to staying in that housing. In other words, it applies to evictions. A landlord may not discriminate when deciding what merits eviction any more than when deciding who to rent to.

Unfortunately, it seems that they do. At a talk hosted by the National Low Income Housing Coalition, National Housing Conference, and Coalition on Human Needs yesterday (April 28), writer and Harvard researcher Matt Desmond shared findings from his book Evicted that should give us pause.

Evictions are much more likely to happen, he said, given the same amount of rent past due, to families with children. This should be a violation of the Fair Housing Act, since family status is a protected class and disparate impact counts as well as outright discrimination. There is also evidence of racial disparities in eviction rates.

But a big question remains of how to enforce it, especially when tenants lack access to lawyers and there is a laundry list of tactics available to landlords to get a tenant to leave without going through an official eviction process. Enforcing the Fair Housing Act is tricky and resource intensive in the best of times, and paired testers, the gold standard for recognizing discrimination in rental or mortgage applications, can’t be applied to evictions. However, if we can’t prevent every eviction that violates the Fair Housing Act, we may be able to interrupt the cycle of housing instability that evictions can start.

HUD’s new guidance to landlords on avoiding a disparate impact claim when using someone’s criminal background to refuse to rent to someone may provide a model. Although people with criminal records aren't a protected class under the Fair Housing Act, blanket policies of refusing to rent to anybody with a criminal record are de facto discrimination, because of the systemic racial disparities of the American criminal justice system. In some cases, turning down an individual tenant because of his or her record can be legally justified, but HUD’s guidance states that landlords should have a policy that takes into consideration what the crime was and when it happened, as well as other factors, to better determine whether the criminal record is likely to affect the person’s ability to comply with their lease. This guidance applies to landlords in the private market as well as those receiving HUD subsidies, and is a major step toward incorporating the disparate impact standard into Fair Housing enforcement.

This applies most directly to the use of eviction records to determine eligibility for housing. Similar to criminal records, eviction has effects that follow people for their lifetimes, because many housing providers, even mission-driven ones, use a person’s eviction record when deciding whether to rent to them. And they can afford to be choosy, with subsidized housing only available to one in four people who qualify for it based on their incomes. Desmond suggested we might want to address who has access to eviction records, how long information stays on them, and how people can go about correcting misinformation in them. If we can show that protected class members are more likely to be evicted than someone with the same lease violations who is not a member of a protected class, we can start making the case that certain uses of eviction records for leasing decisions perpetuate disparate impact. This has huge potential to reduce housing barriers without expenditures in Fair Housing enforcement. 

Though Desmond found clear disparate impact in Milwaukee, lack of good national data on evictions makes it difficult to prove disparate impact at this point. HUD is in the process of releasing tools for a new Assessment of Fair Housing process that captures disparate impacts on protected classes, and asks the entities preparing the assessments to use all relevant available data. It will be interesting to see the extent to which communities and states have data available on evictions that could be used to make Fair Housing claims.

Other suggestions floated at the event also expanded on the Fair Housing Act, such as adding source of income as a protected class, striking down local laws that punish landlords who have multiple domestic violence calls from their properties, and securing a right to counsel for tenants in housing court.

Federal action on these fronts, along with building on the model HUD has created with their criminal records guidance, could go a long way toward reducing housing instability for vulnerable families.

Related Posts: The REAL Rental Housing Issue; Leveling the Playing Field; and Matthew Desmond’s “Evicted” Supports, Challenges Housing Field

(Photo credit: By Michael Klenitz via EVICTEDbook.com.

About the author more ยป

Eva Wingren is president of Young Leaders in Affordable Housing.

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