Ensure fair housing background checks

In 2016, the Department of Housing and Urban Development (HUD) issued guidance on the use of criminal records by providers of housing under the federal Fair Housing Act.[1] In 2022, HUD issued an additional memorandum on how criminal background screening policies and practices can violate the Fair Housing Act’s requirements. The memorandum noted that while the U.S. population is about 13 percent Black, Black people account for about 27 percent of all arrests and that Black males have an incarceration rate nearly six times higher than White non-Hispanic males. The incarceration rate of Hispanic/Latino people in state prisons is 1.3 times the rate of White non-Hispanic people. The memorandum expressed concern that background check reports were “often inaccurate, incomplete, or have no relationship to whether someone will be a good tenant.” It also noted that the use of algorithms to screen and reject applicants may contain racial or other prohibited biases.[2] While HUD has explained the requirements of the Fair Housing Act, additional action is needed.

In February 2023, the FTC and CFPB requested stakeholder comments on how the use of criminal and eviction records and algorithms in rental housing impacts individuals, families, and underserved communities.[3] Given that an estimated 44 percent of individuals in jail and 37 percent in prison have a mental health condition and 63 percent and 58 percent, respectively, have a substance use disorder,[4] the widespread and largely unregulated use of criminal and arrest background checks as part of the rental screening process makes it much harder for individuals with these conditions to find housing after they are released. The FTC and CFPB should move forward expeditiously with rulemaking to tackle this long-standing problem.