On April 4, 2016, the U.S. Department of Housing and Urban Development (HUD) issued new guidance stating that blanket bans on applicants with criminal histories likely violate the Fair Housing Act. Without an individualized assessment of each applicant’s circumstances, HUD says that such bans are likely to have a harsher, unjustified effect on people of color, who are more likely to have come into contact with the criminal justice system. The HUD guidance also makes clear that landlords cannot use mere arrests to deny applications.

The HUD guidance supports the ground-breaking litigation position the Firm has taken on behalf of the Fortune Society in its litigation against a New York City landlord and management company. In that case, which was filed in October 2014 and is now pending before the U.S. District Court for the Eastern District of New York, the Fortune Society alleges that Sandcastle Towers has a blanket ban against applicants with any convictions. That policy would have the effect of rejecting applicants whose infractions are decades old or relatively minor. In a New York Times article on the guidance, John Relman is quoted as saying that “[t]he agency in charge of interpreting the Fair Housing Act agrees with us, and that will have a lot of weight” in the Fortune Society litigation. National Public Radio also covered the HUD guidance here.

Blanket bans based on criminal or arrest history are yet another obstacle to reintegration for people of color returning home from jail or prison. The Fortune Society litigation and the HUD guidance shine a bright light on pervasive practices around the country that disproportionately exclude African-American and Latino applicants from the rental market.

Earlier guidance by HUD in November 2015 directed the country’s 3400 public housing agencies not to use arrest records in tenancy decisions.

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