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Is it legal to Discriminate against Felons for Housing?

What are your rights if you’ve been denied housing due to your criminal record? Is it illegal to deny housing to a felon?

While having a felony isn’t a protected characteristic under the Fair Housing Act, landlords aren’t allowed to use blanket bans on tenants with criminal records.

Instead, landlords must evaluate a renter’s background on a case-by-case basis and apply tenant acceptance policies consistently.

Let’s take a closer look because this issue confuses landlords and tenants alike.

Is It Illegal to Deny Housing To A Felon in 2024?

Is It Illegal to Deny Housing To A Felon

It’s not illegal to deny housing to a felon unless the felony was related to drug addiction (see below).

Landlords have the right to use criminal background screening to assess the suitability of prospective tenants.

If an applicant’s criminal background risks the safety of other residents, staff, the property, or the business, landlords can legally deny their rental application.

Landlords Can’t Use Blanket Bans on Felons

A blanket ban on felons is when a landlord says they don’t rent to felons, period. Blanket bans violate the Fair Housing Act because of a type of discrimination known as disparate impact discrimination.

Because of biases in the criminal justice system, minorities make up a higher percentage of the prison population compared to their numbers in the general population.

Therefore, any policy that automatically excludes felons will have a greater effect on minorities. Hence, the disparate impact.

Disparate Impact Discrimination

The Fair Housing Act (FHA) makes it illegal to deny housing based on:

  • Race
  • Color
  • Sex (including gender identity and sexual orientation)
  • Religion
  • National origin
  • Familial status
  • Disability

Disparate impact discrimination violates FHA race, color, and national origin protections.

Landlords who knowingly or unknowingly create disparate impact discrimination through their policies could also violate the Civil Rights Act.

The United States Supreme Court ruled that the Civil Rights Act applies to any policy that creates “artificial, arbitrary, and unnecessary barriers” to housing based on “statistical disparities”.

Following guidance from the federal Department of Housing and Urban Development (HUD), landlords had to revise their tenant acceptance policies and reevaluate how they use the results of criminal background screening.

Learn more at: https://www.fairhousingnc.org/hud-criminal-background-screening/

Because landlords must apply their policies consistently (to every applicant) all felons potentially benefit from the prohibition on blanket bans.

Housing Denial Must Be Based On A Significant, Reasonable, & Non-Discriminatory Interest

Housing Denial Must Be Based On A Significant, Reasonable, & Non-Discriminatory Interest

When is it legal to discriminate against felons for housing?

While landlords can’t apply a blanket ban to ALL felons, they can deny various types of felony conviction, as long as the disqualifying felonies are listed in their tenant acceptance policy.

Landlords must be able to show that the past offense poses a legitimate potential risk to the safety of the landlord, other residents, staff, property, or the business.

For example, landlords commonly specify they don’t accept renters convicted of felonies for:

  • Violent offenses
  • Arson
  • Sex offenses
  • Fraud
  • Dealing drugs

Criminal Backgrounds Must Be Assessed On A Case By Case Basis

Before making a housing decision, landlords should carry out an individualized assessment looking at:

  • Circumstances surrounding the criminal conduct
  • Individual’s age at the time of conviction
  • How much time has passed since conviction
  • Evidence of good tenant history before or following conviction
  • Evidence of rehabilitation

It May Be Illegal To Deny Housing For Drug-Related Felonies

It May Be Illegal To Deny Housing For Drug-Related Felonies

Can you deny a tenant for criminal history related to drug addiction?

Drug addiction is classed as a disability under the Fair Housing Act (FHA).

An applicant with a drug-related felony is protected under the FHA if they are a recovering addict who has received treatment for a documented addiction.

A landlord using the results of criminal background screening to deny the housing application of a recovering drug addict could be acting unlawfully under the FHA.

Landlords must make an individualized assessment and can only deny an applicant if their pattern of behavior suggests they could be a danger to the safety of others.

Denied Housing Due To Criminal Record – What Now?

If your rental application was turned down, you’re entitled to a written notice explaining why you were rejected. You can also ask for a copy of the tenant acceptance policy that disqualified you.

Here’s a template letter you can use to request the information:

https://www.thehousingcenter.org/wp-content/uploads/2019/04/Appealing-Criminal-Background-Denial-for-Housing-Form-Letter.pdf

Once you have the information from the landlord, your local housing rights organization can help you understand if your denial was lawful.

Call the free United Way helpline on 2-1-1 to find a local housing advisor.

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