On January 21, the Oakland City Council voted unanimously to adopt the Fair Chance Access to Housing Ordinance, which bans housing providers from inquiring about, requiring disclosure of or making housing decisions based on an applicant’s criminal history. Oakland is the first city in California to approve such an overly restrictive mandate, which includes prohibitions against:
- Treating aggrieved parties differently by requiring a higher security deposit to manage risk;
- Failing to permit close family members as occupants in the rental unit;
- Applying screening standards to changes in tenants or sublets in existing lease agreements; and
- Retaliation.
The law requires rental housing providers to disclose the new law’s requirements to applicants in their application materials, websites and at any locations under their control that are frequently visited by applicants. The ordinance also may invite privacy concerns as it requires housing providers to maintain a record of any criminal history data obtained for any applicant for a period of at least three years.
The Fair Chance Access to Housing Ordinance covers both public and private housing with exceptions for housing providers to comply with Federal or State law. For example, federal law requires federally assisted housing providers to automatically exclude applicants that are dangerous sex offenders (42 U.S.C. Sec. 13663(a)) and individuals convicted of manufacturing methamphetamine on the premises of federally assisted housing (24 C.F.R. Sec. 982.553).
Even considering the exceptions, the ordinance maintains stringent requirements even for denials based on the applicant’s appearance on the lifetime sex offender registry. The provider must first disclose the screening criteria in writing during the application process and may only consider the registry information after the owner otherwise qualifies the applicant and provides the applicant with a conditional lease, contingent on the applicant’s ability to pass the requirement.
While Oakland might be the first city in California to enact a ban on criminal screening, it is certainly not the last to consider such restrictions. The Alameda County Fair Chance Housing Coalition, funded by the Chan Zuckerberg Initiative, plans to advocate for similar ordinances in the surrounding cities of Berkeley, Emeryville and Alameda County. The coalition, led by Just Cities and The Dellums Institute for Social Justice, has a mission to “… ensure that formerly incarcerated residents aren’t boxed out of housing and have a stable and healthy life upon release.”
It is critical to educate policymakers and advocates alike that restrictions on screening interfere with housing providers’ ability to protect apartment residents, employees and their communities and properly manage risk. Additionally, these laws and applicable regulations leave housing providers vulnerable to potential legal liability under tort laws and disparate impact theory. Housing providers must remain vigilant about proposals to limit the use of criminal background checks in the housing context, as reentry advocates are ramping up their efforts at all levels of government.
The National Apartment Association (NAA) continues to work with its affiliates to oppose efforts to prohibit housing providers from evaluating a prospective resident's criminal history as part of the overall screening process. To better assist the affiliate network in their advocacy efforts, NAA has created an issue backgrounder, talking points and a 50-state statutory chart with a local supplement on criminal screening policy and other issues related to resident screening should legislation be considered in your area. If this becomes an issue in your area or for more information on NAA’s resources, contact NAA’s resident screening policy expert, Jodie Applewhite.