Earlier this month, HUD’s General Counsel (legalese for head lawyer) issued guidance to all in the professional apartment management community concerning the use of criminal background checks in our housing operations. This guidance was issued in the wake of the U.S. Supreme Court recently concluding that “disparate impact” (more legalese, which means conduct that is neutral on its face but which has a discriminatory effect on one or more protected classes) is covered under our federal Fair Housing Act (FHA).

While not the force of law as it is not a judicial opinion or federal statute, HUD’s guidance (which is applicable to both conventional and affordable housing) strongly recommends that all leasing offices applying criminal background screening on housing applicants take a close look at those procedures. In sum, HUD takes the position that due to a higher than expected prison rate among certain protected classes (African Americans and Hispanics) when compared to their percentage of the total population in the United States, the use of certain criminal history to reject applicants out of hand may have a “disparate impact” on certain races, and as such, may violate the FHA.

While this guidance is not the end of the story, it is a part of the conversation and all professional apartment management companies need to pay attention. From my seat, I continue to see efforts like this as effectively turning criminals into a new protected class. While leasing offices certainly need to and must be inclusive and non-discriminatory in our processing of applications, as we have a level of responsibility to all our residents and staff members – there are just certain individuals who cannot be permitted to reside in our rental properties for valid safety and security reasons. HUD’s guidance will now cause us to reassess our criminal screens and take a close look at specific offenses and time bar limits.

I will address some specific recommendations in the Fair Housing Defense blog entry next week, but the point today is to put management on notice that most blanket criminal prohibitions will subject management to scrutiny.