Earlier this year, a white female and a black female each inquired about apartments in properties across the Washington, D.C., metro area. These two women each told the housing provider with whom they were speaking that they had a criminal background and each detailed the same background.

Of the properties these two women each went to or called, 47% of the time the white woman received favorable differential treatment from the housing provider.

That’s according to the new Unlocking Discrimination report from the Washington, D.C.–based Equal Rights Center (ERC), which sent pairs of white and black women to multifamily properties earlier this year.

The impetus for authorizing the report, says Kate Scott, the ERC’s director of fair housing, was the increased national attention for reforming the criminal justice system, in conjunction with the U.S. Department of Housing and Urban Development’s (HUD's) issuance of guidance in April on the application of Fair Housing Act standards to the use of criminal records by housing providers.

HUD stated that a Fair Housing Act violation occurs when a housing provider treats individuals with comparable criminal histories differently because of race (or some other protected characteristic). Here’s an excerpt: “While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history–based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another.”

The guidance, the National Association of Realtors Legal Affairs Department notes, “does not preclude housing providers from crafting criminal history–based policies or practices, but the guidance makes evident that housing providers should create thoughtful policies and practices that are tailored to serve a substantial, legitimate, and nondiscriminatory interest of the housing provider, such as resident safety or the protection of property.”

Multifamily operators who have criminal-background policies based on arrests alone, and not actual convictions, will not be able to successfully claim that such a policy assists in achieving the substantial, legitimate, nondiscriminatory interest of protecting resident safety and/or property, the ERC report states.

While working for the ERC, Scott, says it’s common to hear that “criminal record–screening policies are used as proxies for race discrimination. That was one of the core things [we] were trying to get to the bottom of.”

After the two testers went through extensive training, each was sent into the field and instructed to pose as a single woman looking for a one-bedroom or studio apartment for herself. The testers were also told to disclose that they had a conviction or arrest in their criminal backgrounds. They were also to ask the leasing agent with whom they interacted how such a disclosure might affect their application.

Of the 60 tests, 13 were deemed inconclusive for one of several reasons, including one of the testers not making contact with a housing provider despite numerous attempts. Of the 47 tests from which the results were drawn, 20 (42%) displayed no findings in regard to differential treatment, meaning the black and white testers received similar treatment.

Twenty-seven tests displayed some sort of differential treatment. In five tests (11%), an agent engaged in differential treatment that favored the black tester. In 22 tests (47%), an agent engaged in differential treatment that favored the white tester.

The ERC broke down differential treatment into three categories. In one, agents provided the matched pair of testers with different information or quality of service. In another, agents reacted differently when the testers disclosed their criminal records. And lastly, agents speculated about the impact that testers’ criminal records would have on their chances of a successful application.

“The most common form of differential treatment was that one tester got different information about a criminal information record screening policy than the other tester did” based on their race, Scott says. “We were careful with the structure of the test to ensure that that could be the only explanation for the difference in treatment.”

The ERC report found that due to policies like blanket bans on any applicant with a felony conviction on their record, “testing alone documented 4,646 housing units in the greater Washington region that are unavailable to individuals with any felony conviction from any point in time, and to many individuals with a misdemeanor conviction.” And since there is racial disparity in the criminal legal system, this disproportionately limits housing opportunities for African American applicants compared with white applicants, which is in violation of the Fair Housing Act.

Courtesy National Association of Realtors Legal Affairs Department
Courtesy National Association of Realtors Legal Affairs Department

“There are a lot of stereotypes that people hold about people that have gone to prison or have a criminal record, and housing providers need to be very careful that those aren’t sneaking into their policies,” Scott says.

The ERC issued recommendations at the end of its report for housing providers and the country at large. A major help to limit this type of discrimination, Scott says, would be to reform the criminal justice system. “The prevalence of the problems we made clear through the testing is very directly related to the increase in incarceration and arrests,” she says.

For housing providers, the ERC recommends additional training at all levels with respect to legal issues. “It was clear to us through the testing that they really don’t understand how the criminal legal system works and that they need additional information in order to implement policies that may be legal,” Scott says.

She is hoping that HUD will issue additional guidance to housing providers about how they can best comply with the Fair Housing Act when it comes to these matters.

“It’s not like there’s a raving racist on the other end of the phone or from the housing agent,“ Scott says, “but the end result is that one tester walked away from the experience thinking, in many instances, that they would have had a chance with a successful application at a housing location, and the other tester would have been provided information that led them to believe that they didn’t have a chance there.”

To read the full report, click here.