BLANKET POLICY ON CRIMINAL CONVICTION RECORDS ILLEGALLY DENIES HOUSING TO QUALIFIED APPLICANTS
Today, the Fair Housing Justice Center (FHJC) announced that L. Smith, an African American mother and licensed medical health professional, filed a fair housing lawsuit in the U.S. District Court (SDNY) on May 27, 2021. The lawsuit alleges that Ms. Smith’s application for an apartment in a City-financed affordable housing development was rejected because of a nine-and-a-half-year-old felony conviction that had no bearing on her suitability as a tenant.
The defendants named in the suit are the owners, operators, and managers of Alvista Towers, a new 380-unit mixed income housing development in Jamaica, Queens; 94TH Avenue Jamaica, LLC; 94TH Avenue Jamaica LI, LLC, HP Jamaica 94th Avenue Housing Development Fund Company, Inc, and K&R Realty Management, Inc. The suit also names as defendants the New York City Housing Development Corporation (HDC), HDC President Eric Enderlin, and The City of New York, acting through its Department of Housing Preservation and Development (HPD).
In May 2019, Ms. Smith was in the final stages of securing an apartment in Alvista Towers. An ideal applicant for the housing, she had good credit, a steady income, and an excellent record for paying her rent. Ms. Smith had provided all the necessary paperwork and was on the cusp of receiving a move-in date and the keys to her new apartment when she was flatly rejected because the building’s leasing agent learned that Ms. Smith had a felony record stemming from a terrible mistake she had made in her past.
While a victim of domestic abuse in 2008, Ms. Smith accidentally overdosed on antidepressants and tragically struck and killed a pedestrian with her car as she sought to escape her abuser, resulting in a prison sentence and a felony record. After she was released in 2012, Ms. Smith earned emergency medical technician and security guard licenses and was employed as a staffing manager for critical healthcare sites, all while volunteering regularly in her community teaching basic medical skills, in part to atone for the guilt she felt about her crime.
In rejecting Ms. Smith, Defendants applied a blanket ban against applicants with felony records. They did not inquire into the age of Ms. Smith’s felony, nor into the nature of her offense, and instead denied her application for housing outright and within days of when she expected to move into her new apartment. Because the defendants were initially encouraging, Ms. Smith opted not to renew her lease at her existing residence, subsequently lost her apartment, and nearly became homeless. For Ms. Smith, this denial of housing was personally painful and financially costly.
According to the complaint, the Defendants “official” criminal background check policy, as approved by HDC, was to reject any applicant for housing who had been convicted of a felony within the past ten years. An investigation conducted by the FHJC confirmed that Defendants’ “actual” policy was to automatically deny applicants with any felony records without asking any subsequent questions about mitigating factors or an applicant’s qualifications. The Complaint alleges that both the “official” and the “actual” policy were discriminatory.
Guidance provided by the U.S. Department of Housing and Urban Development (HUD) in 2016 cautioned housing providers to avoid a screening policy that could have a discriminatory effect based on race. The same guidance stated that a housing provider should conduct an individualized assessment of the nature and severity of any conviction to avoid running afoul of the Fair Housing Act.
The lawsuit alleges that Defendants’ absolute ban on all applicants with felony records constitutes unlawful discrimination under federal, state, and local laws, and has a discriminatory impact on African American and Latinx applicants. The disproportionate rate of conviction and incarceration of Black and Latinx populations as compared to whites is well-documented, as are the structural inequalities in the criminal justice system. As cited in the complaint, Black and Latinx people in New York City who otherwise meet eligibility requirements are five to twelve times more likely than whites to be excluded from housing because of the Defendants’ practices.
The suit seeks damages and injunctive relief against all named Defendants for their involvement in establishing and enforcing the screening policy.
FHJC Executive Director Fred Freiberg stated, “Housing providers must ensure that their screening policies do not have a discriminatory effect on populations protected by fair housing laws.” Freiberg added, “New York City, as a recipient of federal funds, has a legal duty to affirmatively further fair housing which includes complying with fair housing laws and removing discriminatory barriers to housing opportunity. In this case, the City approved a racially discriminatory policy that created an impediment to housing choice. Also, the irony has not escaped us that the same City that is currently considering legislation to protect Justice-involved populations from discrimination based on criminal background stands accused of discriminating on that basis.”
Ms. Smith is represented by attorneys Robert Desir, Judith Goldiner, Lilia Toson, and Samuel Frizell with The Legal Aid Society.
FHJC’s investigation in this case was supported with funding from a Private Enforcement Initiative (PEI) grant received from the Fair Housing Initiatives Program (FHIP) administered by the U.S. Department of Housing and Urban Development (HUD).
The mission of the FHJC, a nonprofit civil rights organization, is to eliminate housing discrimination; promote policies and programs that foster open, accessible, and inclusive communities; and strengthen enforcement of fair housing laws in the New York City region.