Don’t refuse to rent based on criminal record until your read this

The DC Human Rights Act includes protections for an applicant’s criminal record.

One of the things the District has gotten right is establishing, maintaining and expanding one of the most protective Human Rights laws in the nation. I am very proud to live in a place where wrongful discrimination, of any kind, is simply not tolerated. Did you know that the DC Human Rights Act also protects the criminal record of rental housing applicants?

In DC, as in other jurisdictions, anti-discrimination laws apply to employment, public accommodations, education and of course, housing.  Under Federal Law, people are protected in these areas against discrimination based on certain characteristics such as: race, age, gender, national origin, religion, sexual orientation, disability, etc.

However, DC law extends protections to additional characteristics like political affiliation, personal appearance and source of income, among others.

So in DC, you can’t refuse to rent to someone because he is a member of the Green Party, with a scruffy neck beard, wearing a stormtrooper costume bought by his parents.

But, what if a Landlord wants to consider criminal record as part of the application process? Does that run afoul of the comprehensive DC Human Rights Act?

Until recently, Landlords were allowed to deny applicants based on their criminal conviction and/or arrest record.

As of mid-2017, that is no longer the case. If you are a housing provider, and you have not already adjusted your intake process to comply with the new requirements, here is what you need to know.

The Fair Criminal Record Screening for Housing Act of 2016, which took effect in April 2017, makes it unlawful for a Landlord to even ask an applicant about arrests or prior convictions until after a “conditional offer” of housing is made. The statute defines a conditional offer as an offer to rent conditioned on a subsequent inquiry into an applicant’s criminal record (or other permissible criteria). Additionally, a landlord must disclose in writing, before accepting an application fee, what the eligibility criteria are.

So, you can’t even ask Mr. Stormtrooper about his criminal record in the application. You must first tell him in writing that you are going to consider criminal history, then give him an offer that says the apartment is his, if he passes a criminal background check.  Only at that point can a you see his record.

Only some criminal convictions or currently pending allegations may be considered by the landlord.

Even if your application process complies with the law, you can’t consider all arrests or convictions.  It is only permissible to consider: currently pending criminal allegations and convictions within the last seven years.  Moreover, the landlord may only consider certain types of convictions/pending allegations.  48 of them to be prescise. In broad strokes the covered crimes are different types of: arson, assault, kidnapping/human trafficking, murder, drug offenses, burglary, robbery, sex crimes, and fraud.  If you want to the the whole list, it is written into the statute here.

Where does that leave us with Mr. Stormtrooper? Well let’s say he has a three (3) year old assault conviction for his part in a nerd melee that broke-out in line to see The Force Awakens. Provided you disclosed the eligibility criteria in writing before accepting an application fee, and made him a conditional offer contingent on a background check, that’s it, right? Assault is an identified offense and the conviction is within the 7 year limitation period, he can now be denied and sent back to his parents basement, right?

Nope. Not yet.

You still can’t deny him unless it achieves a “substantial legitimate non-discriminatory interest.”

What the heck does that mean?

The statute sets out a six (6) factor test, requiring consideration of the  nature and severity of the offense, age of the applicant at the time, how long it has been, other mitigating information from the offender, and how the offense, if it reoccurred, would affect the landlord, other tenants or the property.

Now can we finally make a decision? Yes. We can.

I am not going to go through the exercise of applying the factors to Mr. Stormtrooper’s three (3) year old conviction for laying the smack-down to a line jumper.  But, you can get a sense of how complex, convoluted and subjective it can be to legally deny an applicant for his criminal background.

If you plan to consider past crimes  as a determining factor in whether to rent to someone, your application, disclosures, and decision making model must be on point. For an evaluation of your rental application documents and decision making process contact me or schedule an appointment now.



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