Criminal background checks: What is legal, what will get you in trouble

CPMG_Logo

Discrimination in and of itself is not illegal. Where landlords face penalties is when discrimination is not practiced across the board. For example, if your company consistently runs background checks on every applicant and denies housing to all applicants with criminal convictions you are practicing a form of discrimination that currently has no consequences. However, if your company only runs background checks on people of color and rents to a white person with a similar criminal history, you face penalties and possible lawsuits under the Fair Housing Act which protects certain classes of people from discrimination. Currently those classes are defined as: race, ethnicity, religion, familial status and disability. Some states and municipalities also include gender and sexual orientation. These additions fluctuate across the Metro Atlanta area so check with your local ordinances.

There is confusion in the housing industry about whether new rules will create liability when discriminating against those with criminal histories. While persons with criminal histories are not a protected class, people of color are disproportionately represented in the group of people with criminal histories. Through this door, landlords may face liability. There are no current rulings to clarify this, but it may well come up soon. Check back for further updates.

How do you protect yourself and your property?

1) Be consistent with your background checks. Perform them on all applicants, or on none.
2) Be consistent with your denials. If you approve a white male applicant who has a prior drug conviction, you must approve all applicants with drug convictions.
3) Set clear guidelines. Set a timeframe for allowing convictions and be consistent across the board with that timeframe.
If you put in policies for consistent handling of applicants and train your staff on these policies, you put in place the needed documentation for protection if and when the law changes.