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Alert: Renewed Criminal Screening Testing

Posted By: Eric Garduño Advocacy News ,
The information included in this post is for informational purposes only and is not intended to be legal advice. For specific legal advice regarding your company's policies and procedures, please consult your attorney.
Some BAAA members report that they are again receiving phone calls from an individual who could be part of a group that is testing whether apartment communities are applying applicant screening for criminal history in a disparate manner.  
FAA sent an Urgent Regulatory Alert to members in November that describe this practice:
“. . . lawsuits are alleging that an individual who is a convicted felon called an apartment community to inquire about renting. During the call, he disclosed his felony conviction background and, he alleges, the apartment community staff stated over the phone that his criminal background would result in an automatic denial of the application.”
The full details of the FAA advisory are available on the BAAA Advocacy Blog.
The National Apartment Association has provided detailed guidance on this issue, NAA's Criminal Conviction Screening Policies: Best Practices to Avoid Disparate Impact Liability. An important excerpt from this document that members should be aware of is a list of recommended best practices that include:
Have a Policy: Develop a written policy that clearly states the legitimate concerns of the housing provider that justify the screening, including how many years back the screening will go, the types of crimes that will pose the highest amount of concern, and why they do.
Determine Legitimate Interests: Engage in thoughtful deliberations about what are the
“substantial, legitimate, nondiscriminatory” interests that motivate the need for criminal screening. Concerns about the health and safety of residents and employees as well as the safety of the property will be significant concerns. Record these concerns in writing the policy and tie them to how the screening is structured.
No Automatic Conviction Exclusions: Do not have a policy that automatically excludes any and all individuals just because of a prior criminal conviction. Ignore Arrests: Do not have a policy that factors the existence of a prior arrest into consideration for denying an applicant.
Apply Policy Equally and Consistently: Apply the background check and policy to each and every applicant consistently. Do not make subjective determinations to only apply screenings to certain individuals, which would only result in exposure to claims of inconsistent and discriminatory treatment.
Individually Assess Records and Conduct: If pending criminal charges or arrests are considered at all, only look at the underlying conduct to determine if it is inconsistent with the legitimate concerns expressed in the policy. Likewise, for actual convictions, if you decide to have individual screening on every denial, individually assess the nature and severity of the offense, as well as when it occurred and the underlying facts giving rise to it to determine if it provides a basis for exclusion under the screening policy. Consider mitigating factors and evidence of rehabilitation through statements or documentation put forward by the applicant.
Narrowly Tailor Inquiries: When asking applicants questions about their criminal convictions, limit questions to those related to legitimate interests and concerns as stated in the screening policy.
Train Staff: Provide detailed training to local management and staff to know how to communicate the policy and effectively apply it in a consistent and unbiased manner.”
The NAA guidance provides more background and details on additional best practices concerning specific aspects of criminal background screening. You are strongly encouraged to review this document in its entirety to ensure your criminal screening practices conform with this guidance.