Fair Housing and Reentry
If an applicant’s criminal history arose because of a disability, such as substance abuse or mental illness, and the applicant has been rehabilitated or circumstances have changed, the applicant should seek an exception from public housing authority policies that bar admission based upon a prior criminal conviction. An applicant may argue that granting such an exception constitutes a reasonable accommodation under the Fair Housing Act.
To be eligible for a reasonable accommodation, the applicant must first demonstrate that he or she has a disability. Federal fair housing law defines disability as:
- A physical or mental impairment which substantially limits one or more of a person’s major life activities,
- a record of having such an impairment, or
- being regarded as having such an impairment.
As noted above, HUD regulations define physical or mental impairment to include drug addiction, but current use of illegal substances cannot constitute a disability under the FHA. Individuals suffering from drug addiction who have successfully completed some form of rehabilitation program are considered disabled on the basis of their recorded history of addiction, or the fact that other individuals consider them to have been addicts. The act does not protect an individual with a disability whose tenancy would constitute a ‘direct threat’ to the health or safety of other individuals or result in substantial physical damage to the property of others unless the threat can be eliminated or significantly reduced by reasonable accommodation. To determine a direct threat, the housing provider must engage in an individualized assessment that is based upon “reliable objective evidence” of current or recent post rehabilitation conduct that poses a direct threat to safety of others.
A “reasonable accommodation” is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary to afford an applicant with a disability an equal opportunity to use and enjoy a dwelling. Under the Fair Housing Act, it is unlawful for a PHA, owner, or housing provider to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to provide applicants with disabilities an equal opportunity to use and enjoy a dwelling. This includes making an exception to a tenant screening policy that bars applicants based on certain criminal history.
To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability. At the same time, a request for a reasonable accommodation may be denied if providing the accommodation is not reasonable. An accommodation is considered unreasonable if it would impose an undue financial and administrative burden on a housing provider or if it would fundamentally alter the nature of a housing provider’s operations.