Disparate Impact: HUD Guidance on Criminal Background Checks – *Tester Alert*

April 4th, 2016 HUD released a “guidance” statement on liability regarding criminal background checks and applications for residential living. This issue continues to have extensive discussion and is resulting in numerous legal challenges. However, testers are now checking on places to determine violations of the HUD Guidance.

The key aspects for now are this: Do not ban all criminal activity, for all time, in residential application background checks. Additionally, arrests may not be considered as part of the background check. A policy should be consistently applied while differentiating between types of crimes.

For example, a property might ban violent felons and sex offenders, but allow, after some set time, non-violent offenders of various types.

A justification for the safety of residents based upon certain banned actions should be consistently applied – and kept in writing. No matter what, don’t act in a discriminatory fashion. When in doubt, seek legal assistance as this is an evolving issue revolving around non-intentional discrimination and may be applied differently at in each region. As always, this is not legal advice, but a word to the wise.