Do Not (Re)Enter: The Rise of Criminal Background Tenant Screening as a Violation of the Fair Housing Act

Oyama, Rebecca
Michigan Journal of Race and Law

Increased landlord discrimination against housing applicants with criminal histories has made locating housing in the private market more challenging than ever for individuals with criminal records. Specifically, the increased use of widely available background information in the application process by private housing providers and high error rates in criminal record databases pose particularly difficult obstacles to securing housing. Furthermore, criminal record screening policies disproportionately affect people of color due to high incarceration rates and housing discrimination. This Note examines whether the policies and practices of private housing providers that reject applicants because of their prior criminal records have an unlawful, disparate impact on racial minorities by denying such individuals the benefits of housing in violation of the federal Fair Housing Act, 42 U.S.C. § 3600, et. seq. The author compares existing enforcement guidance under Title VII employment discrimination law and suggests solutions for balancing the concerns of private housing providers and strong policy reasons behind increasing access to private housing for individuals with criminal records.