Banning Criminal Background Checks Puts Residents and Housing Providers at Risk

In this session, policymakers in Olympia are considering Senate Bill 6490, legislation intended to limit the use of criminal history in tenant screening.

Criminal history is important for resident screening. An individual’s criminal history is an additional data point that provides context about the potential resident’s future behavior. This is particularly important if an applicant has a long criminal history based on untreated behavioral conditions. Private housing providers are not equipped to provide the necessary services to assist residents with ongoing behavioral problems.

Longstanding drug addiction and concurrent criminal activity pose a danger to rental communities and their residents. Consider Seattle as an example, which recently instituted a ban on criminal records checks. The law is relatively new, and no official reporting has been completed, but dozens of anecdotes have already begun to surface.

One recent story is that of Nicholas W., who rented an apartment near Pioneer Square. Nicholas was screened pursuant to the lawful screening guidelines in the City of Seattle, which did not include any review of his criminal history because it was then, and is still, prohibited.

In November 2019, Nicholas stabbed a guest in the chest after a dispute over a telephone. At the time of his tenancy, Nicholas had a warrant for his arrest from California for felony robbery, he also had a warrant for his arrest from Seattle Municipal Court for theft. He was a fugitive in California.

If the apartment community was legally able to screen him for criminal history, they would have, at a minimum asked for more information.

Washington Already Benefits from National Guidelines for Criminal History

The HUD guidance sufficiently balances the needs of private housing providers and tenants with a criminal history. In 2016, HUD released guidance that applies the theory of disparate impact analysis to the use of criminal history screening policies.  The guidance extended the 2015 Supreme Court decision Texas Dept. of Housing and Urban Development v. Inclusive Communities to the use of criminal history screening in rental housing. 

Under this case and the HUD guidance, a criminal history screening policy may be discriminatory, when that policy disproportionately affects certain protected classes even though on its face it treats every applicant equally.  In this case, individuals of color are disproportionately represented in the criminal justice system, because of bias policing and disparate sentencing guidelines that provide longer sentences for crimes individuals of color tend to be arrested for and convicted of more.  Any tenant screening policy that includes criminal history must achieve a substantial, legitimate, non-discriminatory interest.

Therefore, HUD’s Guidance provided three basic recommendations:

• First, criminal history screening policies that exclude individuals based on a prior arrest without a corresponding conviction will likely lead to a finding of disparate impact.
• Second, blanket prohibitions on any person with a criminal record without consideration of the underlying conduct will likely lead to a finding of disparate impact. (i.e. no blanket bans because of criminal history or for specific crimes).
• Finally, third, any criminal history screening should consider the nature, severity, and recency of criminal conduct of the applicant to support the substantial, legitimate, non-discriminatory interest.

This policy has been broadly accepted because shortly after it was published, the Attorney General of Washington began testing private housing providers.

We urge state policymakers to preserve housing providers’ ability to review criminal records under the comprehensive HUD guidelines.