California targets unlawful crime-free housing policies

California’s Office of the Attorney General (OAG) is warning local governments about housing policies that conflict with state and federal anti-discrimination laws.

Several of the state’s local Crime-Free Housing Policies violate fair housing laws by targeting members of protected classes. The OAG is calling on local jurisdictions to either amend or repeal these policies, including any training programs or materials which unfairly target protected classes.

This guidance is a follow-up on a notice from the U.S. Department of Housing and Urban Development (HUD) which states that seemingly neutral Crime-Free Housing Policies can violate the federal Fair Housing Act (FHA) when they have a discriminatory effect and are “not supported by a legally sufficient justification.”

California’s fair housing law is more extensive than federal law in providing consumers equal status and protection. California prohibits discrimination in the sale or rental of housing accommodations based on an individual’s:

• race;
• color;
• religion;
• sex;
• gender;
• gender identity or expression;
• sexual orientation;
• familial or marital status;
• disability;
• genetic information;
• national origin;
• source of income;
• veteran or military status;
• ancestry;
• citizenship;
• primary language; or
• immigration status. [Calif. Government Code, §§ 12955; Calif. Civil Code §§51 et. seq.; Calif. Government Code §12955; DRE Reg. §2780 and §2781]

However, as noted by HUD and now the OAG, even when a landlord follows the letter of the law, discriminatory effects may occur when they selectively refuse to rent to a tenant based on their criminal history.

While a landlord may consider criminal activity in their screening of tenants, landlords are prohibited from enforcing blanket bans against prospective tenants or evicting tenants due to a criminal record.

Editor’s note — Assembly Bill 1418 is currently being considered in California’s legislature. This bill prohibits local governments from encouraging landlords with their crime-free housing policies to perform a criminal background check on a tenant or prospective tenant. Stay tuned for updates by following firsttuesday’s Legislative Gossip page.

Critically, landlords may not apply their crime-free policies in a discriminatory manner. For example, a landlord who only screens tenants for criminal history when they are a certain race, age, sex or other protected class is considered intentional discrimination.

Implicit discrimination is overtly discriminatory

Though tenants with a criminal history are not a protected class under fair housing laws, criminal record-based housing restrictions are used to disparately impact racial minorities — a protected group. Denying applicants who have any criminal record disproportionately impacts racial minority and low income groups which are convicted and incarcerated at higher rates — a discriminatory effect in violation of fair housing laws.

Thus, even when a landlord is not being explicitly discriminatory, housing restrictions based on a tenant’s criminal history are violations of California’s Fair Employment and Housing Act (FEHA) and the federal Fair Housing Act (FFHA), which separately expose a landlord to civil liability. This is a form of unintentional, or implicit discrimination everyone needs to learn to observe. [Gov C §12900, et seq.; 42 United States Code §3601, et seq.]

Further, landlords cannot refuse to rent to prospective tenants or evict existing tenants they suspect of having gang affiliations or who “appear” to be involved in criminal activity. Such a screening practice encourages arbitrary and unlawful housing discrimination on the basis of race, ethnicity, family composition, gender and appearance. [Castaneda v. Olsher (2007) 41 C4th 1205]

Editor’s note — The only exception to these guidelines occurs when a tenant has a conviction for the manufacturing or distribution of controlled substances. Here, a landlord may deny housing based on a conviction for drug manufacturing or distribution — though not based on a conviction for possession — without violating fair housing laws. [42 USC §3607(b)(4)]

Thus, landlords who impose blanket bans on applicants with any criminal record are subject to civil penalties and tenant money losses for housing discrimination.

Related article:

Landlord liability and criminal activity

Reporting suspected housing discrimination

California’s Civil Rights Department (previously the Fair Employment and Housing Department) is the agency which enforces anti-discrimination housing law. [Gov C §§12901, 12903, 12930, 12935]

Any individual who feels they have been discriminated against may file a complaint with the Department. The Department investigates the complaint to determine any wrongful conduct. When grounds exist, the Department then seeks to resolve the situation through discussions with the individual against whom the complaint is made. [Gov C §12980]

When the Department believes a discriminatory practice has occurred, it will first attempt to reach a resolution through the Department’s mandatory dispute resolution division. The dispute resolution is provided without charge to either party. However, when the dispute cannot be effectively resolved, the Department will file a civil action on behalf of the individual who was discriminated against in the county where the discriminatory conduct is alleged to have occurred. [Gov C §12981]

Read more in the RPI ebook: Implicit Bias, Office Management & Supervision, Agency, Fair Housing, Trust Funds, Ethics and Risk Management.