In the field of property management, ensuring that applicant screening is fair and unbiased is essential. A recent fair housing case illustrates the potential pitfalls of inconsistent screening practices, particularly around criminal history, and serves as a reminder of the importance of applying policies evenly across all applicants.
United States v. Dyersburg Apartments, Ltd. (W.D. Tenn.)
The Case Background: Inconsistency in Screening Standards
The case involved a housing provider’s policy of rejecting applicants with any felony conviction within the last ten years. This broad policy became a point of contention when a Black applicant was denied tenancy based on a 4-year-old felony conviction for writing a bad check and forgery, and was subsequently banned from property, preventing him from visiting his children. In contrast, other White applicants with criminal histories were approved. This discrepancy raised questions regarding the fair application of screening standards and prompted HUD to investigate the property management’s practices.
Unequal Treatment and Comparator Evidence
The focus of this case isn’t whether the housing provider’s screening policy is discriminatory or reasonable, but rather whether it was being applied consistently. HUD’s investigation centered around “comparator evidence,” which involves examining whether applicants of different protected classes are treated similarly. In this case, two White applicants with felony convictions within the last ten years were allowed to move into the property. While management later discovered that one of these individual’s criminal records didn’t initially include this disqualifying offense (for sexual battery), he was not subsequently banned from the property as the Black applicant allegedly had been. Management seemed to be aware of the other White applicant’s disqualifying offense, and she moved in without issue. This alleged discrepancy highlighted a possible inconsistency in applying screening criteria and raised fair housing compliance concerns.
Lessons in Documentation and Policy Consistency
One key takeaway from this case is the critical need for property managers to document every decision regarding applicant screening and residency eligibility. Maintaining thorough records of why certain decisions are made can protect management from claims of bias or discrimination. This case demonstrates that treating people differently, even if no discriminatory bias was involved, can lead to allegations of discrimination, which is why documenting a housing provider’s decisions and actions is crucial. Inconsistent application of policies can be interpreted as evidence of discrimination, even if no discrimination was intended.
Staying Updated on HUD’s Guidance
HUD’s stance on criminal history screenings is evolving, and property managers must stay informed about new guidance to ensure their policies remain compliant. Regular policy reviews help to ensure that screening criteria align with current fair housing standards and reflect best practices in nondiscriminatory decision-making. This is particularly relevant as federal and state policies increasingly limit the criteria housing providers can use in criminal background checks.
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