Promo version with 3 free background checks now available by installing Real Safe World

Install Real Safe World and get your free checks now!

Download onApp Store   Get it onGoogle Store

Why all other criminal history background checks are a violation of the Fair Housing Act

In 2015 in the Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. the supreme court ruled that disparate impact claims are cognizable under the Fair Housing act. The following are excerpts from the court’s opinion written by Justice Kennedy:

• This dispute comes to the Court on a disparate-impact theory of liability. In contrast to a disparate-treatment case, where a "plaintiff must establish that the defendant had a discriminatory intent or motive," a plaintiff bringing a disparate-impact claim challenges practices that have a "disproportionately adverse effect on minorities". Pag
• Justice Kennedy: “The Court holds that disparate-impact claims are cognizable under the Fair Housing Act”
• Congress specifically intended to include disparate impact liability in a series of amendments to the Fair Housing Act that were enacted in the year 1988. Justice Kennedy: "[r]ecognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment."

Courts and academia have repeatedly determined that Criminal History Background Checks create a disparate impact on people of color:

• “courts have ruled that criminal history background checks can create disparate impact, which is when a policy or practice disproportionately impacts a certain group of people. This can happen even if the policy was not intended to target a protected group.” 
• US HUD: A housing provider may also face liability for a criminal background screening policy that creates an unjustified discriminatory effect, also known as a disparate impact, on protected classes.
• “While persons with criminal records are not a protected class under the Act, HUD stresses that criminal history-based barriers to housing have a statistically disproportionate impact on minorities, which are a protected class under the Act, and as such, creating arbitrary or blanket criminal-based policies or restrictions could violate the Fair Housing Act ("FHA" or "Act").“ NAR, Fair Housing Act: Criminal History-Based Practices and Policies, January 8, 2020

According the US Department of Justice Civil Rights Division a disparate impact claim over criminal history background checks will have 3 Tests to determine a disparate impact fair housing violation:

1. Has the plaintiff provided evidence that demonstrates that the criminal history policy or practice actually or predictably results in a disparate impact. If True then test 2 kicks in and the defendant must prove: 
2. The housing provider must show that the policy practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest of the housing provider, and further, that the policy or practice achieves that interest. If True then the plaintiff must prove that 
3. the housing provider's interest could be served by another practice that has a less discriminatory effect. If True then the defendant has committed a violation of fair housing.
   
   The 3 tests citied from DIJ civil rights division: “Courts have adopted a three-part test to determine whether a recipient’s policy or practice violates the Title VI disparate impact regulations. First, does the adverse effect of the policy or practice disproportionately affect members of a group identified by race, color, or national origin? Some courts refer to this first inquiry as the “prima facie” showing. If so, can the recipient demonstrate the existence of a substantial legitimate justification for the policy or practice? N.Y. Urban League, 71 F.3d at 1036. A violation is still established if the record shows the justification offered by the recipient was pretextual. See Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993) (citing Georgia State Conf. v. Georgia, 775 F.2d1403, 1417 (11th Cir. 1985)). Finally, is there an alternative that would achieve the same legitimate objective but with less of a discriminatory effect? If such an alternative is available to the recipient, even if the recipient establishes a justification, the policy or practice will still violate disparate impact regulations.” US DOJ, Civil Rights Division, Legal Manual, Section VII – Proving Discrimination – Disparate Impact.