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Council Affirms Federal Standards for Criminal History in Tenant Screening

SEATTLE – Council unanimously adopted Resolution 31669 yesterday, which affirms federal guidance addressing how landlords screen applicants based on their criminal history.  The United States Department of Housing and Urban Development (HUD) has recommended using individualized tenant assessments, which give housing applicants an opportunity to explain the circumstances of their prior arrest or conviction and what they’ve done to rehabilitate.

HUD determined that it could be a Fair Housing Act violation if landlords categorically exclude anyone with a criminal record because it could have a disparate impact against racial minorities. In Washington State, African Americans are four percent of the population but account for 18 percent of the state’s prison and jail population. Landlords should only exclude people from housing based on criminal conviction history when the past criminal conduct indicates a demonstrable risk to resident safety or property. Council upheld HUD guidance that landlord screening should consider factors like:

  • The nature and severity of the crime;
  • The conduct underlying the conviction;
  • The length of time since conviction and/or release from incarceration;
  • The age of the individual at the time of conviction;
  • What the convicted person has done since the conviction; and
  • Evidence of rehabilitation.

“People with criminal records have served their time and deserve an opportunity to get back on their feet,” said Councilmember Lisa Herbold, the resolution’s sponsor and chair of the Civil Rights, Economic Development, Utilities and Arts committee. “While legislation establishing clear screening rules for Seattle landlords is forthcoming, it’s important that all housing providers understand HUD’s advice in the meantime because it’s helps both people seeking housing, and also protects landlords from fair housing complaints.”

The resolution also discourages landlords from excluding a person from housing on the basis of arrests without conviction because an arrest alone does not provide proof of crime, nor can a landlord determine a potential risk to resident safety and protections of property.

Nick Straley of Columbia Legal Services said, “This resolution demonstrates the Council’s recognition that promoting housing opportunities for people who have paid their debt to society protects public safety. Categorical bans on all people with criminal records is bad policy, increases recidivism rates and violates anti-discrimination laws. The resolution simply requires that housing providers treat people as individuals and not base housing decisions on unsupported generalizations or stereotypes.”

Council also endorsed Seattle Office of Housing guidelines that landlords should consider when selecting tenant screening agencies. Unclear, uninformed, or inaccurate information could be used to decline tenants.  The suggested methods for selecting screening agencies would make it more likely that landlords would use consistent and accurate information to consider a tenant, preventing future fair housing claims.

Efrem McGaughey, a formerly incarcerated individual and member of the Tenants Union of Washington State, said, “By affording formerly incarcerated people who are working to change their lives a chance to find housing without facing prejudice, we are strengthening our community as a whole. The long term results will increase contributing members to our society, more filled apartments for property owners, and more stability for people who have faced oppression and homelessness.”

“As an African American woman who knows the strict background process of obtaining safe and affordable housing, I am concerned about landlords who discriminate based on a person’s previous criminal past. Because of the systemic racism in the criminal justice system, people of color are grossly over-represented among people with a criminal record,” said Shelby Powell, a member of Washington CAN!. “When landlords discriminate against people with a criminal record, it disproportionately impacts families of color and furthers the disenfranchisement of communities of color. Washington CAN! is glad that the City Council passed this resolution and looks forward to the passage of an ordinance.”

Council also endorsed Recommended Best Practices to Do and Not Do in Drafting and Implementing a Criminal Conviction Screening Policyadapted from the National Multifamily Housing Council’s white paper, Best Practices to Avoid Disparate Impact Liability. 

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