What is Disparate Impact and How it affects Landlords and Managers

greboredo • December 18, 2019

Can you be discriminating against tenants not knowing it? Can you deny a tenant with a criminal record?

The Fair Housing Act does not specifically deny a landlord the right to reject an applicant based on a prior conviction; however, HUD has issued a statement saying a blanket policy to deny felons can have an impact on minority populations under “disparate impact.”

What is disparate impact? It’s an act of discrimination that may not harm a single individual under the Fair Housing Act but is deemed harmful to a minority group overall. According to HUD, some minority communities have a higher percentage of members convicted of a felony, and that makes blanket policies against all felons discriminatory under the Fair Housing Act.

“Unfortunately, it doesn’t matter if a rental policy purposely discriminates or not, however,” says Grant. “With HUD’s recommendations in hand, a law firm can file a lawsuit. And even if a property management company has done nothing wrong, it’s always expensive for a brokerage to defend itself in court.”

Things to consider when developing an in-house rental policy

Overall impact

Does the policy have a disparate impact – an action that may not discriminate against a specific applicant yet still impact a group protected under the Fair Housing Act? Is there a distinct impact on a group of people because of their race or national origin, for example? HUD recognizes that this is fact specific; however, it points to several Department of Justice statistics showing that blanket denials based on criminal history have a significant impact on African Americans and Hispanics.

Justified policy

A housing provider must show that its screening policy is justified, which HUD defines as “necessary to achieve a substantial, legitimate, nondiscriminatory interest.” The policy can’t be speculative or hypothetical, meaning evidence must exist that supports the screening policy. While protection of other residents’ safety and their property may be considered, the housing provider must prove, through “reliable evidence,” that the policy serves that purpose.

Alternatives

Is a less discriminatory alternative available? Examples will depend on the details of the applicant’s background. However, HUD mentioned the length of time that has passed since an applicant’s conviction, a good tenant rental history before or after the conviction, and the circumstances surrounding the criminal conduct.

Click here to watch a video from Juana Watkins from Florida Realtors with more information on this subject

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