Background. In April of 2016, the HUD Office of General Counsel (Helen R. Kanovsky) issued guidance on the relationship of using criminal records as a screening tool for housing decisions to federal fair housing laws. The essence of the guidance is that reliance on criminal history as the basis for a housing decision may be a violation of fair housing law if it creates a disparate impact for individuals due to a federally protected characteristic.

Such policies should never permit the refusal of housing services based solely on arrest records, and use of criminal conviction records should be limited to crimes relating to drugs, violent crimes, property crimes, and sex crimes. Also, any such policies should have reasonable timeframes in terms of how much of a "look back" is used when determining that a person's criminal history poses a threat to the community.

Complaint filed in the United States District Court for the District of Columbia. On December 12, 2017, the nonprofit Equal Rights Center and the Washington Lawyers Committee alleged that Mid-America Apartments (Mid-America is the largest landlord in United States with more than 100,000 units in the Southeast and Southwest) policy of forbidding anyone with a "felony conviction or pending felony charge as well as certain misdemeanors or pending misdemeanor charges" from renting an apartment. The complaint alleges that the practice violates the Fair Housing Act of 1968 because it has a "disproportionate adverse impact on African Americans and Latinos."

The complaint alleges that Mid-America enforces the policy in at least 55 apartment communities with over 20,000 units. The complaint asks the court to stop the company from enforcing the policy and demands damages "that would punish Defendants for the willful, malicious, and reckless conduct alleged herein and that would effectively deter similar conduct in the future."

Take away. Based on the complaint, the company's practice goes against instructions issued by HUD, which require that any restrictions placed on applicants based on criminal history "must be tailored to serve the housing provider's substantial, legitimate, nondiscriminatory interest and take into consideration such factors as the type of the crime and the length of the time since conviction." The investigation that led to the complaint revealed that applicants who disclosed a felony conviction through the company's online application portal were not even able to submit an application for review because a felony conviction worked as an absolute bar to applying for an apartment.