Presented to Tacoma Fair Housing Conference, Tacoma, Wash. on April 19, 2012

1. The Harder they Fall:
How the indiscriminate use of unlawful detainer records
in rental housing admissions causes a disparate impact
on women, people of color, and families with children

2. Eric Dunn, Staff Attorney
Northwest Justice Project
401 Second Ave. S., Ste. 407
Seattle, Washington 98104
Tel. (206) 464-1519, ext. 234
EricD@nwjustice.org

3. Fair Housing in Washington
“It is an unfair practice for any person … because
of sex, marital status, sexual orientation, race,
creed, color, national origin, families with children
status, honorably discharged veteran or military
status, the presence of any sensory, mental, or
physical disability, or the use of a trained dog
guide or service animal … to discriminate against
a person in the terms, conditions, or privileges of a
real estate transaction or in the furnishing of
facilities or services in connection therewith…”
 RCW 49.60.222(1) (Wash. Law Against Discrimination)
 See also 42 USC 3601 et seq. (Fair Housing Act)

4. Disparate Treatment
“Classic” form of discrimination
 Treating a person less favorably than others due to
membership in protected class
 Key is discriminatory intent
On Montgomery between
Linden and Norton.
2843 Montgomery St.
2 MONTHS RENT FREE!!
Lovely 2 bedroom and 1
bath house. Large living,
dining room, laundry
room, and a large porch
perfect for the summer.
Partially fenced yard.
Pets ok with extra
deposit. Owner pays
garbage. No section 8.
Good credit required. One
year lease required.

5. Disparate Impact
 “Outwardly neutral practice” that causes “a
significantly adverse or disproportionate impact
on persons of a [protected class].”
 Pfaff v. HUD, 88 F.3d 739, 745 (9th Cir. 1996)
A tenant-selection policy that causes a disparate
impact on a protected class is unlawful unless
justified by a “compelling business necessity”
Discriminatory intent (or lack thereof) not an issue

6. Rental applications are commonly
denied due to criminal or UD records

7. Does the denial of housing to
applicants with criminal or eviction
records cause a disparate impact on
members of any protected class?

8. Criminal Records: Racial Disparities
African-Americans are 12.9% of U.S. population
 2000 US Census
African-Americans are arrested and incarcerated at
rates disproportionate to their numbers
 About 27% of persons arrested each year
 FBI Uniform Crime Reports, 2003
 Make up 45% of U.S. prison population
 Sourcebook of Criminal Justice Statistics, 2000
 8.2 times more likely to be incarcerated than whites
 More than 9 times more likely in Washington
 Human Rights Watch, Punishment and Prejudice: Racial Disparities
in the War on Drugs, Vol. 12, No. 2(G) (May 2000)
Denying housing to people with criminal records
causes a disparate impact on African-Americans

9. Race Disparities: Factors
African-Americans more than 70% more likely to
be searched by police than Whites
 Latinos 50% more likely to be searched
African-Americans 62% more likely to be
imprisoned for felony drug offenses (than
similarly-situated Whites)
 Also, focus on crack cocaine has racial impact
African-Americans get harsher treatment in:
 Conditions on pre-trial release (bail)
 Legal financial obligations & asset forfeitures
*Task Force on Race & Crim. Just. Syst., “Preliminary Report on
Race and Washington’s Criminal Justice System” (2011)

10. Is the denial of rental housing to
applicants with criminal records
justified by a compelling business
necessity?

11. What makes a good tenant?
Ability to afford rent, utilities, etc.
 Amount and stability of income, assets
 Other obligations are manageable
 Credit history
Behavioral suitability
 Applicant not likely to damage the premises
 Applicant likely to follow basic rules
 Applicant likely to coexist well with neighbors

12. Common justifications given for rejecting
rental applicants with criminal records…
A person with a
criminal record:
May pose a danger to the
landlord or neighbors
Could engage in criminal
activity at the property
Could damage the
physical premises
Then again, so could a person with no criminal record…

13. After 5 Years, Offenders No More Likely
Than Non-Offenders to Be Re-Arrested
(Kurlychek, et al. “Scarlet Letters & Recidivism: Does An Old
Criminal Record Predict Future Criminal Behavior?,” 2006)
13

14. Criminal Records: A Poor Proxy
The disproportionate representation of African-
Americans and Latinos among Washington’s
incarcerated population not a product of higher
rates of crime commission.
 Task Force on Race and the Criminal Justice System,
“Preliminary Report on Race and Washington’s Criminal
Justice System” (2011)
“[T]he significant racial disparities in arrest
rates are not fully warranted by race or ethnic
differences in illegal behavior.”
--Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir. 2010)*

15. Criminal history: factors
 What was the offense?
 How does the offense relate to housing?
 How long ago did the offense occur?
 What were the surrounding circumstances?
 Age of offender
 Drug/alcohol use
 Have conditions changed?
 Has the applicant become less-likely to commit
similar offenses in the present/future?

16. Answers:
 Whether the denial of a rental applicant on
the basis of a criminal record is justified by
business necessity depends on the specific
circumstances, and can only be determined
on a case-by-case basis.
 A housing provider that denies applicants
based on criminal records, without making
case-specific determinations, probably
violates the Fair Housing Act.

17.  Does a residential landlord who rejects
applicant based on eviction (i.e.,
unlawful detainer) records cause a
disparate impact on (members of) any
protected class?

18. Empirical Studies (1)
Milwaukee, Wisc. 2009: low-income African-
American women, especially those who were
single mothers, tended to face eviction at
disproportionately higher rates.
 Desmond, Matthew, “Eviction and the Reproduction of
Urban Poverty,” Paper presented at the American
Sociological Association Annual Meeting, Hilton San
Francisco, San Francisco, CA, Aug 08, 2009
 Oakland, Cal. 2002: 78% of “30-day no
cause” evictions were issued to “minority
households”

19. Empirical Studies (2)
 Chicago, Ill. 1996:
72% of defendants appearing in eviction court were
African American, 62% were women
 Philadelphia, Penn. 2001:
83% of tenants facing eviction were “nonwhite,” 70%
were “nonwhite women”
 Other studies in Baltimore, NYC, and LA “have
shown that those who are evicted are typically
poor, women, and minorities.”
 Hartman, Chester & David Robinson, “Evictions: The Hidden Housing
Problem,” 14 Housing Policy Debate 461 (2003)

20. Eviction Demographics: King County

21. King County Eviction Data
 A 2010 Study by students in the UW-Bothell Policy
Studies Program* found that:
A moderate negative relationship exists between
the percentage of White tenants in a zip code area
and that zip code area’s UD rate
A moderate positive relationship exists between the
percentage of non-White tenants in a zip code area
and that zip code area’s UD rate
Strongest Correlations: Black, Multi-Racial tenants
*Gehri, Leah M., John Lee, Logan Micheel and Damian Rainey,“Tenant
Screening Practices: Evidence of Disparate Impact in King County,
Washington,” March 16, 2010

22. Can the denial of rental
applications based on unlawful
detainer records be justified by
a compelling business
necessity?

23. Possible justifications
Unlawful detainer record may demonstrate:
That the applicant is financially irresponsible
That the applicant may be indifferent to or
contemptuous of tenancy obligations
The applicant may be unable to take proper care of
rental premises
That the applicant may be disagreeable toward
neighbors

24. Eviction Records
Eviction filings detected through SCOMIS
Data entered by court clerk upon case filing
Circumstances, case outcome seldom considered

25. UD Records: Factors
 What was the basis for the UD?
 Nonpayment? Lease violation? No cause?
 Allegations in complaint, eviction notices
 What were the surrounding circumstances?
 How was the UD resolved?
 If judgment, was it on merits or by default?
 Any post-judgment proceedings?
Evidence of changed circumstances?

26. Rule: denial of rental housing
based on eviction filings
In Washington, a landlord probably has a compelling
business necessity to deny a residential housing
application based on a prospective tenant’s eviction
record if, and only if:
 On a case-specific analysis of all relevant factors, a
reasonable landlord would find that the applicant presents
an undue risk of defaulting in rent or violating some other
material term of the tenancy
Otherwise, such a denial likely violates the Fair
Housing Act due to causing a disparate impact on
the basis of race, gender, and families with children!