Apartment owners must be mindful of ‘Ban-the-Box’ job application form campaigns.
Emboldened by a recent uptick in the adoption of state and local laws that curb employers’ ability to screen potential hires, criminal rights activists are ramping up efforts to impose similar restrictions on rental housing providers.
Apartment owners and operators should be mindful of the trend, which is increasingly gaining support among state and local lawmakers whose constituents are demanding that fair housing and employment protections be extended to convicted criminals.
Over a decade has passed since criminal rights advocates successfully lobbied for the passage of a Hawaii law that limits the ability of employers to determine whether job applicants have criminal records. Under the law, employers are prohibited from asking applicants whether they have been convicted of a crime until after an initial assessment of the person’s qualifications has been conducted, such as a first interview. Passed in 1998 with little fanfare and outside attention, the law effectively prevents government and private-sector employers throughout the state from screening out job applicants with criminal records.
It wasn’t until 11 years later that the law was replicated, in part, by Minnesota. In 2010, three states—Massachusetts, Connecticut and New Mexico—adopted similar laws. Of those, only Massachusetts, like Hawaii, imposes these restrictions on both government and private sector employers.
On “fill-in-the-blank” job applications, employers often require applicants to indicate whether they have been convicted of a crime. Applicants who have may then be instructed to check a “yes” box provided on the application. Proponents of these measures have subsequently coined the initiative to enact similar laws in all 50 states as the “Ban-the-Box” campaign. Leading this charge is the Oakland, Calif.-based non-profit organization All of Us or None—a group of formerly incarcerated individuals “determined to win full restoration of [their] civil and human rights,” according to its website.
The momentum with which “Ban-the-Box” proposals are being introduced and debated in the chambers of state legislatures nationwide is quickly growing. Not including the above mentioned states, since 2009, lawmakers in at least five states—Illinois, Maryland, Nebraska, New Jersey, New York and Rhode Island—have introduced, but failed to pass, “Ban-the-Box” legislation. Local lawmakers, too, are increasingly considering, and in some cases adopting, such measures. In fact, at least 30 cities and counties in 17 states have enacted “Ban-the-Box” laws that apply to government hiring decisions.
Discontented with the application of these laws solely to the realm of government and private employment, All of Us or None says the legislative successes it has achieved thus far will allow it to “challenge the many ‘boxes’ on a variety of applications,” including rental housing applications. According to the Reentry Council of San Francisco—an organization dedicated to the societal reintegration of individuals exiting correctional facilities—four cities and one county in two states, Illinois and Wisconsin, currently “prohibit discrimination against individuals with an arrest or criminal conviction record in housing.” To varying degrees, similar measures have garnered the support of Human Rights Commissioners in the cities of San Francisco and Seattle and state legislators in Illinois and New York.
Debate Over Societal Re-Integration
“Ban-the-Box” proponents maintain that formerly incarcerated individuals are routinely dismissed outright as candidates for jobs and housing because of prior criminal convictions. They say that stable housing and employment is the key to the successful societal re-integration of ex-offenders. Opponents argue that the provision of transitional employment and housing for ex-offenders is the job of the government, not private employers and housing providers.
Statistics show that more than one quarter of all convicted felons in the United States were arrested for “property crimes,” which include arson, vandalism and burglary, while more than one third violated drug laws. The extension of employment and fair housing protections to convicted felons could subject apartment owners and operators to legal liability and adversely affect insurance rates, property values and the safety of their employees and residents.
Christine Young-Gertz, Government Affairs Director for the Apartment Association of Greater Philadelphia, says that policies aimed at restricting the ability of employers and rental housing providers to conduct criminal background checks on potential employees and apartment residents place children in the most danger.
“Our laws require criminal record checks for all school employees, including the individuals who bus them to and from school,” Young-Gertz says. “How could we possibly justify allowing them to return home each day to an apartment community that has been prohibited from taking the same kind of precaution?”
The City of Philadelphia adopted a “Ban-the-Box” law in April, prohibiting “city agencies” and private employers with 10 or more employees from making inquiries before or during an initial job interview that aim to determine whether an applicant has a criminal record. While the law applies only to employment decisions, organizations like All of Us or None view the city’s adoption of this measure as a crucial first step toward eventually applying its restrictions to providers of private rental housing.
Rental Housing Seeking Exemptions
Of those city- and state-level measures currently being drafted or considered, a bill introduced and pending consideration in the Illinois General Assembly is particularly vague and alarming. That measure, Illinois HB 1565, proposes simply to amend the state’s Human Rights Act to make it a “civil rights violation” for residential rental property owners to “inquire into any arrest record of a renter,” or to refuse to rent to an individual “because he or she has an arrest record.” Similarly, at least two measures under consideration in the New York State Legislature would prohibit an owner of residential rental property from refusing to rent to an individual on the basis that the person was involved in a “summary proceeding.”
Neither the Illinois nor the New York bills provide exemptions to restrictions in the measures that would enable a rental property owner to exercise any level of discretion to determine whether prospective residents’ previous criminal convictions or involvement in summary proceedings would constitute a risk to the safety and security of the property, its residents and employees.
In an attempt to permit rental property owners to exercise the type of discretion that is clearly lacking in these bills, Seattle’s Human Rights Commission has, for example, drafted a “Ban-the-Box”-type ordinance, which, if enacted, would provide exclusions to restrictions imposed on an owner’s ability to deny occupancy to a prospective resident who has been convicted of a criminal offense. Those include instances where there exists a “direct relationship between the conviction and occupancy,” as well as “situations where occupancy would involve unreasonable risk of substantial harm to the property or to the safety of individuals or the public.”
However, given the draft proposal’s absence of clearly defined parameters that owners can work within to determine what exactly constitutes either a “direct relationship” or an “unreasonable risk of substantial harm,” the possibility that an owner’s judgment would be challenged in court seems likely.
When considering “Ban-the-Box”-type proposals, state and local lawmakers should weigh federal mandates that restrict providers of publicly subsidized housing from refusing to rent to certain “drug criminals” and “lifetime” sex offenders. Consideration should likewise be given to additional such mandates that further require providers of public housing to “establish standards that prohibit admission” of prospective renters based on previous criminal convictions.
NAA affiliates and their legislative representatives should be mindful of state and local legislative efforts to adopt “Ban-the-Box”-type laws in their respective jurisdictions. While perhaps well intentioned, if adopted, such measures could potentially jeopardize the security of their members’ investments and the safety of apartment employees and residents.
Erik Taylor is NAA’s Manager, State & Local Government Affairs and can be reached at erik@naahq.org or 703/797-0672.