The first thing to keep in mind is that the simpler or more blanket the criminal history screening policy is, the greater the chance a claim of disparate impact discrimination will be levied. Basically, if your policy is that “if you’ve ever been convicted, you can’t live here,” it will be viewed as too restrictive and eliminate many people. The Basics of Criminal History Policies
Let’s consider the following four basic things that initially should be considered when creating a property’s criminal history screening process and policies.
1. Breakdown of criminal offenses
IF YOUR POLICY IS THAT “IF YOU’VE EVER BEEN CONVICTED, YOU CAN’T LIVE HERE,” IT WILL BE VIEWED AS TOO RESTRICTIVE.
2. Lookback periods
3. HUD considerations
4. Appeals process
Breakdown of Criminal Offenses Having an objective policy that breaks down criminal offenses based on seriousness and assigns each of them a specific lookback period will aid in showing that your policy has been carefully crafted to be the least restrictive possible. Remember, not all criminal offenses carry the same weight and should be treated accordingly—for example, the difference between a misdemeanor and a felony offense. Lookback Periods Lookback periods need to be balanced and not overly restrictive as well. Criminal justice statistics show that an ex-offender who has gone beyond seven years after release is no more likely to commit another crime than anyone else, including people who have never had a conviction. So, based on this, seven years is the gold standard for lookback periods. The American Apartment Owners Association limits searches to 7 years. You may be able to push that to 10 years, but any more raises your risk if challenged in a disparate impact lawsuit. Also, keep in mind your specific state requirements as they may also limit your lookback period.
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