***HUD Changes Rules with Criminal Background Checks***

HUD issued fair housing guidance this week in another effort to expand housing protection to individuals convicted of crimes.  On April 4, HUD issued a guidance document that could extend protections for individuals with criminal histories. This guidance builds on similar policies issued by HUD last year that only applied to public and federal-assisted housing.

The new guidance may prohibit the use of arrest records to deny residency.  Housing denials based on convictions may have to consider the nature and severity of the incident and often this will be based on a case by case basis. The guidance seeks to end blanket exclusions of prospective residents based on criminal history in favor of an approach that is more narrowly tailored to achieve property safety and security goals of neighbors and maintenance staff.

Those with criminal histories are not a protected class under the Fair Housing Act (FHA), HUD has crafted this policy using disparate impact theory. Disparate impact allows fair housing complaints to proceed where actions have a discriminatory result even if there was no intent to discriminate.