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Can Landlords Discriminate Against Criminal Tenants?

Most people recoil at the idea of discriminating against people and probably just as many presume that existing laws prohibit discrimination. What many do not realize is that the laws against discrimination, for the most part, only cover those in so-called “protected classes.” The typical protected classes are, as one may expect, based on race, gender, national origin, religion, age (over 40), and disability. Needless to say, it is unlawful for a landlord to discriminate against prospective tenants on the basis of any of these. Aside from these protected classes, can a landlord discriminate in choosing his or her tenants on the basis of other reasons?

Obviously, a landlord generally wants to create a safe environment for his or her tenants and the others who live in the vicinity of the landlord’s property. Although seemingly responsible, may a landlord attempt to achieve the goal of safety by discriminating against potential tenants on the basis of their criminal records? As criminals or former criminals are not among those within the protected classes described above, discrimination against people with criminal records is legal.

Of course, if a landlord elects to establish checking potential tenants’ criminal backgrounds as part of his or her vetting process, he or she must do so for all applicants. In other words, the landlord cannot check the criminal backgrounds of black applicants while opting not to check the criminal backgrounds of white applicants.

Finally, it should be noted that the Department of Housing and Urban Development has established a new rule regarding policies that have disparate discriminatory effect on a protected class. A landlord will be in violation of the Fair Housing Act if he or she enacts a policy that has a disparate discriminatory impact on a protected class, even if that policy is seemingly lawful on its face. For example, if a landlord enacted a policy that prohibited all tenants from covering their faces when entering the building, it might be considered a violation of the Fair Housing Act because it had a disparate discriminatory effect on Muslims.

In sum, landlords, at this point, may legally use criminal backgrounds to exclude applicants as part of their vetting process when choosing from potential tenants as long as they apply the same standards to all of their applicants, as discrimination against former criminals is not yet an unlawful form of discrimination.

Originally published in The Legal Intelligencer Blog on December 2, 2013 and can be found here.

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