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It's easy to talk about some aspects of housing discrimination.

However, some topics are trickier, and less likely to inspire sympathy.

Everyone's at least heard rumors of landlords who won't rent to people of certain races, or discourage families with children to apply. All of those forms of discrimination are illegal under America's Fair Housing Act, which prohibits refusing housing on the basis of race and color, national origin, disability, familial status, religion and sex.

Not listed among those protected classes: people with a past criminal conviction.

"A lot of people have criminal convictions," said Roger Dyer, a Columbia-based housing lawyer. "Like with jobs, some landlords are going to be more sympathetic — perhaps because of personal experience — than some others, who might (have) more of a blanket policy (against renting to people with prior convictions)."

The issue came up during an Aug. 5 Safe and Affordable Housing Task Force meeting in Fulton, when homeless shelter Our House's Executive Director Misty Dothage noted many of her clientele struggle to find housing due to a criminal record.

Whether publicly or quietly, many local landlords and property managers automatically refuse applicants who have a criminal record, local probation and parole Tom Powell said.

"There's a big gap in Callaway County for the people I serve," Dothage said. "It's hard for me when I've worked with someone until they're an ideal tenant but because of their past they can't go anywhere."

It may be easy to sympathize with landlords who are wary of renting to ex-offenders and thus introduce a blanket policy declining to do so.

But research indicates such policies are harmful to society at large — and potentially prohibited under recent guidance from the U.S. Department of Housing and Urban Development.

Net negative

Dyer said he regularly hears from ex-offenders who have trouble finding a place to rent.

"I think as a result of that, a lot of them end up getting aligned with some of the shadier landlords because they don't have as many options," he said. "In Missouri, it's pretty easy to find that info out with a quick CaseNet search."

Others end up sleeping rough. A 1995 Canadian study showed unstable housing and homelessness make people more likely to re-offend. There's evidence the opposite is true, too. A program in the state of Washington providing housing to high-risk, recently discharged offenders lowered new convictions among participants.

Additionally, the consequences of a past conviction extend beyond the ex-offender to his or her family.

"Who suffers is the children," Powell said. "The adults may not have made good choices, but the children go place to place to place. There's no stability for them."

Lastly, blanket policies don't take into account important factors, such as how long ago the conviction was or how severe.

HUD guidance

In 2016, HUD issued guidelines against rejecting people based solely on criminal history.

"Basically, criminal history or being a convicted felon isn't a protected class," Dyer said. "But, convictions in general tend to disproportionately impact black and Hispanic males."

The Fair Housing Act doesn't just prohibit direct discrimination, but also policies that affect people from a protected class to a greater degree than the general population. HUD pointed out study after study has shown African Americans and Hispanics are arrested, convicted and incarcerated at higher rates than white people.

"(Those policies) aren't illegal but because of the fact research shows the criminal laws disproportionately impact certain people, there's an argument to be made that a blanket policy will disproportionately impact certain classes of people more than others," Dyer said.

Renters who believe they were rejected solely on the basis of criminal history have legal recourse, he said.

"The Missouri Human Rights Commission may have actually litigated some of those cases, and I know HUD does," he said. "They will investigate those if someone makes a report that they think they've been discriminated against because of a policy. They'll potentially file a lawsuit, or depending on how many victims are involved it could get sent to the Attorney General's office."

It's not as straightforward as other types of housing litigation. The plaintiff's lawyer must prove the landlord's policy has a disparate impact on a protected class, something that requires statistical analysis and other tools. The landlord will have a chance to prove whether their policy is necessary or justified — for example, to protect other residents or the property. That's not as simple as it sounds, according to HUD.

"Bald assertions based on generalizations or stereotypes that any individual with an arrest or conviction record poses a greater risk than any individual without such a record are not sufficient to satisfy this burden," the HUD states.

Even housing providers with policies excluding individuals with only certain types of convictions — for example, sex offenses — may not be in the clear.

"A housing provider must show that its policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety and/or property and criminal conduct that does not," HUD stated. "A policy or practice that fails to take into account the nature and severity of an individual's conviction (or how long ago it was) is unlikely to satisfy this standard."

There's one exemption: The FHA explicitly doesn't prevent declining housing because of a conviction for the illegal manufacture or distribution of a controlled substance. (Certain types of landlords, such as landlords who occupy a building with four or fewer units, are exempt from the FHA altogether.)

If a landlord fails to convince the courts the policy is warranted, they may be subject to a fine or even monitoring by a watchdog group, Dyer said. Potentially discriminatory policies may be reported to HUD via bit.ly/2YMEDJX.

Landlord rights

Dyer said it's reasonable and permitted to take a potential renter's criminal history into account before handing over a lease.

"I think it's fine to take that into consideration, but there are certain things they need to look at," Dyer said. "Sometimes the charge itself may not say a whole lot. It's fine to inquire about that sort of thing and do CaseNet searches, but they really should do that after looking at other qualifying factors."

Things like rental history, what rehabilitation the person has gone through, whether they're employed and their recent track record of responsibility may say more about the applicant than their criminal record, Dyer said.

When it comes to looking at the applicant's criminal record, Dyer suggested the landlord should go through a checklist that takes into account factors including the severity of the crime, when it happened, whether the applicant has re-offended, the applicant's age at the time of the conviction, evidence of rehabilitation efforts and so on.

"If, after that, the landlord has concluded the person poses a potential risk or there's concerns of drug use, they probably want to note the reasons they made that decision in case someone files a lawsuit," he said.

To read HUD's full guidance, visit bit.ly/2H3SWPp or talk to a lawyer.

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