Window to the Law: Learn About New HUD Guidance

In 2015, the Supreme Court affirmed the availability of disparate impact claims under the Fair Housing Act.  And since that time, HUD has issued two key pieces of guidance related to the use of criminal history and the treatment of persons with limited English proficiency as well as steps you can take to avoid liability under the Act.

But first, what is disparate impact? 

Disparate impact occurs when a facially neutral policy or practice has an adverse impact against any group based on race, national origin, color, religion, sex, familial status, or disability when there is no legitimate, non-discriminatory business need for the policy or practice. 

HUD’s guidance on the use of criminal history, explains that minorities are incarcerated at a disproportionate rate relative to Caucasians. Therefore, reliance on criminal records by housing providers could have a disparate impact on minorities. 

To be clear, HUD’s guidance does not prohibit the use of criminal history in making housing-related decisions.  Rather, it advised housing providers to avoid overly broad criminal history policies and to ensure that any such policies achieve the fundamental interest in ensuring resident safety and protecting property. 

Here are some best practices you can implement in crafting a criminal history:

• First, have a written criminal history policy.  Any policy must be uniformly and consistently applied, and housing providersshould avoid making exceptions to their policy for one applicant and denying the same exception to another.
• Next limit the policy’s look back period to seven years or less.
• Also, never consider arrest records.  HUD’s guidance is very clear that arrest records should never be considered.
• Criminal convictions, on the other hand, do serve as evidence of criminal conduct.  But avoid blanket bans on applicants with a criminal conviction, as such blanket bans would unlikely be justifiable.
• And even where a criminal conviction exists, housing providers would be wise to allowing applicants to submit, and to take into consideration, additional information surrounding the conviction, such as the individual’s age at the time of the conviction, how long ago the conviction took place, whether the individual has undergone rehabilitative efforts since.  Allowing an applicant to submit this type of additional information may mitigate any potential disparate impact of a criminal history policy and help a housing provider defend its policy, if challenged.

The bottom line is that housing providers may continue to use criminal history, but in order to avoid liability under the Fair Housing Act, be sure to have a carefully crafted policy aimed to further your fundamental interest in the protection of persons and property.

Turning now to HUD’s guidance on the Fair Housing Act’s protections for persons with limited English proficiency, we must first acknowledge, as the guidance does, that there is a strong correlation between a person’s ability to read, write and speak English, and their national origin.  Therefore, just as with criminal history, policies or practices that consider a person’s Limited English Proficiency may have a disparate impact in violation of the Fair Housing Act.

So what are some best practices to keep in mind when dealing with clients with Limited English proficiency?

• First, be familiar with and take advantage of free or low-cost language assistance services. Failure to take advantage of these available resources will likely cause any cost based justification for not dealing with a particular individual based on limited English proficiency to fail. 
• Also, if translated documents are readily available to you, make sure to provide your clients with such documents when helpful.
• Next, enlist the assistance of multilingual staff as a resource for communicating with persons with limited English proficiency.
• Understanding that clients with limited English proficiency may need additional time during a transaction, you should allow these clients a reasonable amount of time for the individual to, for example, have documents translated.
• And finally, allow a client with limited English proficiency to bring a family member or friend along with them to help translate for the client and ensure effective communication throughout the transaction.

For decades, housing providers have been precluded from intentional discrimination under the Fair Housing Act.  Now, housing providers need to look a step beyond and avoid any unintentional discriminatory impact in violation of the Act. 

For additional information about HUD’s recent guidance, please check out these resources.

Thank you for joining me for this episode of Window to the Law.