The United States Department of Justice (DOJ) recently filed a civil action in the United States District Court for the Western District of Tennessee against an apartment development and its property management company alleging violations of sections 3604(a) and 3604(b) of the Fair Housing Act (FHA). Specifically, the complaint challenges the management company’s policy of rejecting applications for tenancy if any member of the household had a felony conviction within the past 10 years and instructed that in the event of such a conviction “consideration shall be given to favorable changes in the households’ pattern of behavior, a lapse of years since occurrence of an offense[,] and to other extenuating circumstances.” The complaint further asserts that the defendants improperly rejected the application of a black felon and issued a Letter of Banishment to the black felon, but either accepted the applications of white felons or did not issue Letters of Banishment to white felons. In the complaint, DOJ seeks injunctive relief and monetary damages.
This is not DOJ’s first involvement in an FHA case involving criminal records of potential tenants. In October 2016, DOJ filed a statement of interest in Fortune Society, Inc. v. Sandcastle Towers Housing Development Fund Corp. arguing that blanket bans of individuals with criminal records may disparately impact African American and Hispanic housing applicants. In Fortune Society, DOJ took the position that general safety and security concerns alone do not justify a screening policy that excludes any potential tenant who has a criminal conviction. DOJ noted that, while the FHA does not forbid housing providers from considering the criminal histories of applicants, categorical prohibitions that do not consider the age of conviction, the underlying criminal conduct, or what the convicted person has done in the intervening time create a substantial risk of running afoul of the FHA. The Fortune Society case remains pending.
Enforcement of the FHA is shared between the Department of Housing and Urban Development (HUD) and DOJ. DOJ takes enforcement of the FHA seriously and views the right to housing free from discrimination as one of the most fundamental rights of individuals. Enforcement of the FHA is among the responsibilities of the Housing and Civil Enforcement Section of the Civil Rights Division of DOJ. The Civil Rights Division was created by Congress in 1957 and tasked with upholding the civil and constitutional rights of all Americans, with an emphasis on protecting the rights of the most vulnerable members of society. In addition, HUD’s Office of Fair Housing and Equal Opportunity (FHEO) is tasked with implementing and enforcing the FHA. In 2016, HUD published guidance related to the use of criminal records in housing and real estate transactions. The FHEO investigates fair housing complaints and works to ensure civil rights in HUD programs.
The complaint filed in the Western District of Tennessee was signed by both the United States Attorney for the Western District of Tennessee and attorneys from the Housing and Civil Enforcement Section of the Civil Rights Division of DOJ. The filing of this complaint, as well as DOJ’s involvement in Fortune Society, signals DOJ’s continued interest in ensuring compliance with the FHA. In light of these developments, single or multi-family property owners or managers should review their housing application processes to ensure that they do not violate FHA or otherwise attract the attention of DOJ, HUD, or local United States Attorneys.