Tenant Screening – Fair Housing

Tenant screening is a process used primarily by residential landlords and property managers to evaluate prospective tenants. The purpose of the tenant screening process is to assess the likelihood the tenant will fulfill the terms of the lease or rental agreement. The process culminates in a decision as to whether to approve the applicant, approve the applicant conditionally (such as requiring an increased deposit or cosigner) or deny tenancy.

Title VIII of the Civil Rights Act of 1968 (Fair Housing Act) prohibits discrimination in the sale, rental and financing of dwellings based on race, color, religion, sex or national origin. Title VIII was amended in 1988 (effective March 12, 1989) by the Fair Housing Amendments Act, which expanded coverage of the Fair Housing Act to prohibit discrimination based on disability or familial status (presence of child under age the of 18, and pregnant women).

tenant verification

State law often expands protections guaranteed under Title VIII.  Washington law, for example, prohibits discrimination based on marital status, sexual orientation and domestic violence victim status.

Violating (or even being accused of violating) state or federal fair housing law in your tenant screening process can be disastrous – in terms of the time and expense associated with responding – as well penalties that may be assigned.  So it is important that there is nothing in your tenant screening process that is (or ideally may be perceived as) discriminatory – that treats protected individuals differently than others.

The tenant screening process begins with the Application to Rent.

The Application

As a rule, there should be nothing in the rental application that directly solicits information regarding membership in a protected class.  Asking an applicant where they were born, for example, might elicit information regarding national origin.  Asking applicants and co-applicants whether they are married goes to marital status.  Similarly, charging married couples a lower application (background screening) fee may run afoul of marital status or sexual orientation protections.

Tenant Screening Report

Background checks (tenant screening reports) are a critical component of the tenant screening process.  There should be nothing in your screening reports that associates the applicant with a protected class.  Some tenant screening companies will return “protection orders” granted to victims of domestic violence as part of a civil records search.  Bad idea – certainly in the State of Washington (for example) where victims of domestic violence are specifically protected under RCW 59.18.580.  Records of arrest are a bad idea as well, since it is well established that reliance on records of arrest has a disparate impact on protected individuals.

Few would dispute the business necessity of considering convictions for serious offenses – but convincing a jury of the business necessity of considering records of arrest (alone) will be much more difficult.

Considering minor (or unrelated) convictions, or convictions that occurred long ago may also be problematic – in terms of the disparate impact discrimination exposure.  So it is advisable to limit your criminal search parameters to convictions for specific (serious) offenses, the dates of final disposition is more than 7 years old – a limit commonly found in state law.

The bottom line is if you cannot use the information, you do not want it in your file.  If your tenant screening company returns information you cannot use, ask them to stop.

Your Criteria

It is important to craft and carefully follow criteria that does not discriminate – directly or indirectly (under the disparate impact legal theory).  Well-crafted criteria applies thresholds to objective credit, public records, rental and employment data to arrive at a decision whether to approve, approve conditionally or deny tenancy.

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