The National Apartment Association has just released a white paper titled Criminal Conviction Screening Policies: Best Practices to Avoid Disparate Impact Liability and it is a valuable resource for management companies evaluating their screening processes in the wake of HUD’s guidance last month. The white paper is divided into two parts: Part I deals with how to design criminal conviction policies so they are not susceptible to disparate impact claims of discrimination, and Part II explains how the concept of disparate impact liability emerged under the FHA and why HUD’s guidance has made screening policies a subject of increased interest for housing providers and advocacy groups.
This is truly a good resource, but as they write in the conclusion, the thinking on this issue is sure to evolve over time:
The analysis is admittedly an early assessment of the intersection between criminal screening policies and the HUD disparate impact rule approach. The way both HUD and the courts treat these types of disparate impact claims may (and, indeed, is likely to) evolve over the coming years as courts provide precedent for interpretation of the HUD Guidance and as HUD or Congress enacts further clarifying guidance, regulations, rules or statutes.
In the meantime, here’s a handy table of Do’s and Don’ts they provided in their introduction:
Here’s a link to the full PDF version of the paper.