Will People with Criminal Records Become the Next Protected Class?

Over the past few years, we’ve seen an increase in restrictions placed on the use of criminal records to make rental decisions. With the concerns surrounding COVID-19, many local and state correctional facilities have released prisoners early, and many of them will be searching for housing. Could previously those with criminal records become a protected class? If so, what would change for the rental housing industry?

The current constraints on criminal record screening vary drastically. On the lowest end of the spectrum, some local governments only dictate when a criminal report can be processed (generally once a conditional offer is extended to the applicant) and the procedure after the applicant is denied. Some areas restrict the amount of time the criminal records can go back. For example, in Cook County, Illinois, landlords and property managers can only consider the past 3 years of criminal records.

The most extreme case of criminal record restrictions is in Seattle, Washington, where property owners are completely prohibited from considering criminal records, with the exception of screening through the National Sex Offender Registry.

If people with a criminal record become a new protected class, it’s likely that criminal record screening would become useless or even considered discriminatory. However, that raises a valid question: if property owners and managers are discouraged or prohibited from criminal record screenings, what are the liabilities?

Will People With Criminal Records Become The Next Protected Class

Property owners and managers have some legal responsibility for the safety of their tenants, and this goes beyond keeping the premises habitable and maintained. For example, you could be held liable if a renter commits a crime on the property or against another renter. If you’re unable to screen an applicant’s criminal records due to legal restrictions, would your property still be held liable?

While further restrictions on criminal records and the industry impact are still all up in the air, there are a few things you can do now to prepare for the future.

Review your written lease and rental criteria

There’s no question that the rental housing landscape is changing, so it’s important that your leasing criteria adapts along with it to prevent the possibility of illegal or outdated practices. Here are some things you should keep in mind while reviewing it:

  • Avoid making one set of rental criteria and applying to all of your properties:
    Your properties may be in different locations or cater to different types of tenants. Make sure that your policies are appropriate for each individual property and make any needed modifications.

  • Create clear leasing standards for all decisions:
    What are your standards for accepting an applicant or denying them? Have these clearly written out and make sure to also establish criteria for conditional acceptances.

  • Avoid creating strict, black and white rules that don’t allow applicants to give more explaination or explain:
    This would include adding a clause like “no felonies.” Stating no felonies across the board doesn’t take into consideration the actual conviction in relation to housing. Instead, state something more specific, like “no violent crime convictions.”

  • Base your rental decisions on objective information rather than subjective information:
    Using subjective information like your tenant’s social media presence, how clean their car is or how they look puts you at risk of potential discrimination claims. Objective information, like tenant screening reports, is the best way to make an unbiased, well-informed decision.

  • Keep an eye on rental housing laws affecting your property:
    As we mentioned, there have been many restrictions placed on using criminal records for rental decisions over the past few years, and this trend is likely to continue. As laws change all the time, it’s possible to go from having a completely legal lease to one that’s in violation of the latest regulation.

Make sure your rental criteria is being applied equally

This is one of the areas you should be most proactive, as it applies to potential discrimination cases. If you run a property management company, make sure to train your leasing staff on your rental criteria frequently, especially if you’ve made changes. All rental criteria should be written and readily available should an applicant or staff member request it. If an applicant asks about it, be transparent about your rental criteria and it factors into your final decision.

Have trust in your leasing process

It’s important to have faith in your leasing process and avoid bending the rules to make an applicant fit them. Bending the rules defeats the purpose of creating leasing standards in the first place, but even worse, it could be seen as discriminatory. If it’s appropriate, you can conduct a formal re-review of your standards. Are they effective? If not, make the necessary changes and apply the new standards to all applicants going forward.

We can’t say for certain that criminal history will become a protected class, but it’s essential to be proactive. By reviewing your rental criteria now with the possibility of further restrictions to criminal record screenings in mind, you can potentially save yourself some time and legal hassle in the future.

Landlords Property Managers Contact TSCI