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.
- Evans v. UDR, Inc., 644 F.Supp.2d 675 (E.D.N.C. 2009) After the plaintiff’s housing application was denied due to criminal history, plaintiff requested a reasonable accommodation because the criminal conduct, a misdemeanor conviction for criminal assault, was a result of his mental health disability. The court found that criminal conduct caused by a mental health disability was not an “effect” of disability with which Congress was concerned in the Fair Housing Act.
- Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 898 N.E.2d 848 (Mass.2009) The court held that before evicting a public housing tenant, the PHA must consider whether a causal link existed between tenant’s psychiatric disability and assault on another tenant, for purposes of determining whether requested reasonable accommodation was related to disability.
- Super v. J. D’Amelia & Associates, LLC, 2010 WL 3926887 (D. Conn. Sept. 30, 2010) The court found that a reversal of a decision to terminate a Voucher due to first degree assault may be required as a reasonable accommodation if continued rental assistance will allow the tenant to use and enjoy a dwelling without posing a threat to neighbors.
NHLP and Western Center on Law and Poverty hosted a webinar on September 26, 2016, “Reasonable Accommodation in Criminal Activity Cases.” The webinar provided an overview of how fair housing laws can be used to protect applicants and tenants with disabilities from unlawful adverse actions based on criminal activity.