NAA White Paper: Criminal Backgroud Checks

Criminal Conviction Screening Policies: Best Practices to Avoid Dipsarate Impact Liability
NAA White Paper

May 2016

The Department of Housing and Urban Development (HUD) recently issued Guidance discussing how a criminal conviction screening policy could violate the Fair Housing Act under disparate impact theory. This white paper reviews the new HUD Guidance, relevant case law and offers best practices.

Executive Summary: In June 2015, the Supreme Court officially recognized disparate impact theory as a method for bringing a lawsuit under the Fair Housing Act (FHA). Disparate impact theory has long been used in other contexts, like employment law, to attack practices or policies that are not overtly discriminatory, but instead are seemingly race-neutral yet actually have disproportionate discriminatory effects on particular protected classes, like a certain race. Disparate impact theory is grounded in the idea that although policies are no longer explicitly discriminatory, statistical disparities between different races can nevertheless show that a policy has a negative discriminatory effect-even if unintended.

Click here to read the entire NAA white paper.