The Harder they Fall:How the indiscriminate use of unlawful detainer records in rental housing admissions causes a disparate impact on women, people of color, and families with children

Eric Dunn, Staff AttorneyNorthwest Justice Project401 Second Ave. S., Ste. 407Seattle, Washington 98104Tel. (206) 464-1519, ext. 234EricD@nwjustice.org

Fair Housing in Washington“It is an unfair practice for any person … because of sex, marital status, sexual orientation, race, creed, color, national origin, families with children status, honorably discharged veteran or military status, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal … to discriminate against a person in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection therewith…”

RCW 49.60.222(1) (Wash. Law Against Discrimination)See also 42 USC § 3601 et seq. (Fair Housing Act)

Disparate Treatment“Classic” form of discrimination

Treating a person less favorably than others due to membership in protected class

Key is discriminatory intentOn Montgomery

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Disparate Impact “Outwardly neutral practice” that causes “a significantly adverse or disproportionate impact on persons of a [protected class].” Pfaff v. HUD, 88 F.3d 739, 745 (9th Cir. 1996)

A tenant-selection policy that causes a disparate impact on a protected class is unlawful unless justified by a “compelling business necessity”Discriminatory intent (or lack thereof) not an issue

Rental applications are commonly denied due to criminal or UD records

Does the denial of housing to applicants with criminal or eviction records cause a disparate impact on members of any protected class?

Criminal Records: Racial Disparities African-Americans are 12.9% of U.S. population

2000 US CensusAfrican-Americans are arrested and incarcerated at rates disproportionate to their numbers About 27% of persons arrested each year FBI Uniform Crime Reports, 2003

Make up 45% of U.S. prison population Sourcebook of Criminal Justice Statistics, 2000

8.2 times more likely to be incarcerated than whites More than 9 times more likely in Washington Human Rights Watch, Punishment and Prejudice: Racial Disparities

in the War on Drugs, Vol. 12, No. 2(G) (May 2000)

Denying housing to people with criminal records causes a disparate impact on African-Americans

Race Disparities: Factors African-Americans more than 70% more likely to be searched by police than Whites

Latinos 50% more likely to be searchedAfrican-Americans 62% more likely to be imprisoned for felony drug offenses (than similarly-situated Whites)

Also, focus on crack cocaine has racial impactAfrican-Americans get harsher treatment in:

Conditions on pre-trial release (bail) Legal financial obligations & asset forfeitures

*Task Force on Race & Crim. Just. Syst., “Preliminary Report on Race and Washington’s Criminal Justice System” (2011)

Is the denial of rental housing to applicants with criminal records justified by a compelling business necessity?

What makes a good tenant?Ability to afford rent, utilities, etc.

Amount and stability of income, assetsOther obligations are manageableCredit history

Behavioral suitabilityApplicant not likely to damage the premisesApplicant likely to follow basic rulesApplicant likely to coexist well with neighbors

Common justifications given for rejectingrental applicants with criminal records…

A person with a criminal record:

May pose a danger to the landlord or neighbors

Could engage in criminal activity at the property

Could damage the physical premises

Then again, so could a person with no criminal record…

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After 5 Years, Offenders No More LikelyThan Non-Offenders to Be Re-Arrested(Kurlychek, et al. “Scarlet Letters & Recidivism: Does An OldCriminal Record Predict Future Criminal Behavior?,” 2006)

Criminal Records: A Poor ProxyThe disproportionate representation of African-Americans and Latinos among Washington’s incarcerated population not a product of higher rates of crime commission.Task Force on Race and the Criminal Justice System,

“Preliminary Report on Race and Washington’s Criminal Justice System” (2011)

“[T]he significant racial disparities in arrest rates are not fully warranted by race or ethnic differences in illegal behavior.”--Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir. 2010)*

Criminal history: factors What was the offense? How does the offense relate to housing? How long ago did the offense occur? What were the surrounding circumstances?

Age of offender Drug/alcohol use

Have conditions changed? Has the applicant become less-likely to commit similar offenses in the present/future?

Answers: Whether the denial of a rental applicant on the basis of a criminal record is justified by business necessity depends on the specific circumstances, and can only be determined on a case-by-case basis.

A housing provider that denies applicants based on criminal records, without making case-specific determinations, probably violates the Fair Housing Act.

Does a residential landlord who rejects applicant based on eviction (i.e., unlawful detainer) records cause a disparate impact on (members of) any protected class?

Empirical Studies (1)Milwaukee, Wisc. 2009: low-income African-American women, especially those who were single mothers, tended to face eviction at disproportionately higher rates.

Desmond, Matthew, “Eviction and the Reproduction of Urban Poverty,” Paper presented at the American Sociological Association Annual Meeting, Hilton San Francisco, San Francisco, CA, Aug 08, 2009

Oakland, Cal. 2002: 78% of “30-day no cause” evictions were issued to “minority households”

Empirical Studies (2) Chicago, Ill. 1996:

72% of defendants appearing in eviction court were African American, 62% were women

Philadelphia, Penn. 2001: 83% of tenants facing eviction were “nonwhite,” 70% were “nonwhite women”

Other studies in Baltimore, NYC, and LA “have shown that those who are evicted are typically poor, women, and minorities.” Hartman, Chester & David Robinson, “Evictions: The Hidden Housing

Problem,” 14 Housing Policy Debate 461 (2003)

Eviction Demographics: King County

King County Eviction Data A 2010 Study by students in the UW-Bothell Policy Studies Program* found that:A moderate negative relationship exists between the percentage of White tenants in a zip code area and that zip code area’s UD rate

A moderate positive relationship exists between the percentage of non-White tenants in a zip code area and that zip code area’s UD rate

Strongest Correlations: Black, Multi-Racial tenants

*Gehri, Leah M., John Lee, Logan Micheel and Damian Rainey,“Tenant Screening Practices: Evidence of Disparate Impact in King County, Washington,” March 16, 2010

Can the denial of rental applications based on unlawful detainer records be justified by a compelling business necessity?

Possible justifications

Unlawful detainer record may demonstrate:That the applicant is financially irresponsibleThat the applicant may be indifferent to or contemptuous of tenancy obligations

The applicant may be unable to take proper care of rental premises

That the applicant may be disagreeable toward neighbors

Eviction RecordsEviction filings detected through SCOMIS

Data entered by court clerk upon case filingCircumstances, case outcome seldom considered

UD Records: Factors

What was the basis for the UD? Nonpayment? Lease violation? No cause? Allegations in complaint, eviction notices

What were the surrounding circumstances? How was the UD resolved?

If judgment, was it on merits or by default? Any post-judgment proceedings?

Evidence of changed circumstances?

Rule: denial of rental housing based on eviction filings

In Washington, a landlord probably has a compelling business necessity to deny a residential housing application based on a prospective tenant’s eviction record if, and only if:On a case-specific analysis of all relevant factors, a

reasonable landlord would find that the applicant presents an undue risk of defaulting in rent or violating some other material term of the tenancy

Otherwise, such a denial likely violates the Fair Housing Act due to causing a disparate impact on the basis of race, gender, and families with children!