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OGC publishes guidance on use of criminal records

This week on the HUD home page, the Office of General Counsel (OGC) posted a ten-page guidance document titled “Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions.” The guidance clarifies that adverse housing actions based on an individual’s criminal history may violate the Fair Housing Act.

The new guidance states that blanket bans on the admission or continued assistance of persons with criminal records may have a discriminatory impact on members of protected classes. Denial of housing on the basis of arrests not leading to conviction cannot be shown to actually assist in protecting resident health and safety. Furthermore, blanket prohibitions based on criminal convictions may violate the Fair Housing Act, while individual conviction records may be sufficient for denial depending upon the circumstances.

OGC also posted a five-page set of frequently asked questions (FAQs) concerning the use of arrest records in housing decisions. The undated guidance is intended to address questions raised by Notice PIH 2015-19, “Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions.”

While the new guidance states that the fact of an arrest alone is not a permissible basis for making a housing decision, a record of an arrest might trigger an inquiry by a PHA into whether a person actually engaged in disqualifying criminal activity. In deciding whether to deny or terminate assistance, PHAs may consider police reports detailing the arrest, whether criminal charges were filed, and the outcome of such charges. A criminal conviction is the best evidence of a person’s involvement in criminal activity.

The FAQ document also contains sample language for a compliant admissions policy, and a discussion of the requirement to offer clients the opportunity to dispute the accuracy and relevance of criminal records.

Do you have concerns about whether or not your agency is compliant with federal fair housing law? Nan McKay and Associates can help. Contact for more information.