by Jeana K. Poloni, Attorney
Seattle’s Fair Chance Housing ordinance went into effect on February 19, 2018. The ordinance was unanimously adopted by the Seattle City Council in August 2017. The ordinance prohibits landlords from denying applicants housing based on their criminal history with very limited exceptions. This ordinance leaves many landlords wondering why this was adopted and what it means for them.
In 2016, the Department of Housing and Urban Development (HUD) published a guidance memo on the use of criminal history in rental housing. The memo found blanket bans that reject applicants with criminal history are unlawful based on a disparate impact analysis. It also found that any policy that uses criminal history as a basis for tenant screening must serve a legitimate, substantial, and non-discriminatory interest. Otherwise, the policy may be found to be discriminatory. In 2016, the City of Seattle passed Resolution 31669 affirming HUD’s guidance. Seattle also implemented a Housing Affordability Livability Agenda (HALA). HALA aims to promote affordable housing and make Seattle more affordable, equitable, and inclusive. With these principles in mind, Seattle adopted the Fair Chance Housing ordinance which is codified under Chapter 14.09 SMC.
The Fair Chance Housing Ordinance prohibits landlords from asking about, requiring disclosure, rejecting an applicant, or taking an adverse action against a tenant or prospective tenant based on any arrest record, conviction, or criminal history. Landlords may screen for applicants on the sex offender registry but they must have a legitimate business reason for doing so. This means that a landlord must be able to show an actual correlation between the policy and resident safety. Mere speculation will not suffice. The ordinance also prohibits landlords from advertising or maintaining a practice that excludes individuals with a criminal history.
In Seattle, landlords are already required to provide notice to applicants regarding their screening criteria. The new ordinance additionally requires landlords to provide a statement that they are prohibited from screening for criminal history. If a landlord elects to screen for registry information, the notice must disclose criteria for analyzing the registry information. If registry information is used, the landlord must analyze the nature and severity of the conviction; the number and type of conviction; how much time has elapsed since the conviction; the age of the applicant at the time of conviction; evidence of good tenant history before or after the conviction; and any supplemental information related to the individual’s rehabilitation. If a landlord screens for registry information he or she must be careful not to carry out an adverse action if the conviction occurred when the applicant was a juvenile.
Finally, the ordinance protects tenants from retaliation. If a person exercises his or her rights under the new law, Chapter 14.09 SMC, the landlord is prohibited from taking any adverse action against him or her on that basis.
Violations of the Fair Chance Housing Ordinance will be enforced by the Seattle Office for Civil Rights (SOCR). SOCR has the ability to investigate the claim and make findings of discrimination. A first time violation of the ordinance subjects landlords to civil penalties of up to $11,000.00. Habitual offenders face up to $55,000.00 in penalties. Typically, SOCR also requires landlords to take a fair housing class and develop policies to revise their procedures. However, the Fair Chance Housing Ordinance specifically does not create a private civil right of action.
Certain types of properties are exempt from this new ordinance. Projects that receive federal funding or projects subject to federal regulations that require screening for criminal history are not subject to Chapter 14.09. Landlords renting a single-family dwelling in which the landlord occupies part of the unit, and accessory dwelling units where the owner maintains a permanent residence are exempt from the new law.
The best practice is to speak with your attorney to review and revise your policies to come into compliance with the requirements of the Fair Chance Housing Ordinance before a problem arises. If you receive a complaint from SOCR charging you with a violation of the Fair Chance Housing Ordinance contact an attorney immediately.