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VAMA Member Resources and Publications: VAMA Member News & Updates

Criminal Screening & Disparate Impact - Guidance Now Available!

Tuesday, May 10, 2016  
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NAA/NMHC’s new white paper on HUD’s recently-issued guidance on the use of criminal histories in resident screening is now available for VAMA members. The white paper, “Criminal Conviction Screening Policies: Best Practices to Avoid Disparate Impact Liability,” was written by Mike Skojec, Partner at Ballard Spahr, LLP. The white paper reviews the HUD guidance, provides the historical and legal context and recommends best practices for apartment owners and operators.

“Criminal Conviction Screening Policies: Best Practices to Avoid Disparate Impact Liability,” provides a detailed analysis of HUD’s recent fair housing guidance on criminal screening. HUD’s new policy seeks to extend protections for individuals with criminal histories by ending blanket exclusions of prospective residents based on criminal history in favor of a more individualized approach that is more narrowly tailored to achieve property safety and security goals.

While those with criminal histories are not a protected class under the Fair Housing Act, the HUD guidance relies on disparate impact theory. As a result, the white paper addresses a number of legal and operational concerns raised by the guidance. It explains the background behind the legal theories involved and raises potential conflicts between the guidance and legal precedent, most notably the Inclusive Communities Supreme Court case.  The paper further discusses the authority of agency guidance and the role it plays in legal determinations. Finally, it analyzes each of HUD’s recommendations and policy interpretations and indicates best practices to avoid liability under the Fair Housing Act.

In addition, the paper specifically identifies elements that contribute to successful compliance operations. These include developing written policies and uniform procedures for criminal history screening. Policies should be well-justified and document the legitimate business needs for a firm’s criminal screening efforts. And importantly, staff must be appropriately trained in fair housing compliance and how to execute criminal screening policies.

Without question, President Obama has made no secret of his goals to reduce barriers to housing, employment and more for formerly incarcerated individuals. As part of this initiative, on April 29 he announced the establishment of a Federal Interagency Reentry Council, and in the area of multifamily housing specifically, he has continued to push to extend protections for individuals with criminal histories.

NAA/NMHC will continue to seek additional clarification about the reach of disparate impact liability and HUD’s enforcement efforts. We also remain focused on educating congressional leaders and Administration officials about the challenges that the multifamily industry faces as we strive to provide residents with safe and secure apartment communities.  

In the meantime, keep an eye out for specifics on our next webinar in the coming weeks focused on the new criminal background screening white paper. Please click here to read the white paper.


The Virginia Apartment Management Association
An Affiliate of the National Apartment Association
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Richmond, VA 23294
(804) 756-VAMA
info@vamaonline.org


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