If you got your tenant screening report back and you note that the applicant has a felony charge would you still rent to him or her? If you said “No” you may be discriminating. When we think of discrimination we usually think of intentional acts which exclude members of certain groups from employment, housing, or other opportunities. The civil rights laws, however, protect against not only intentional acts of discrimination but acts which are seemingly neutral that actually have a discriminatory impact on protected groups.

Not all discrimination is illegal. For example, we choose people with good credit over those with bad credit. We reject applicants who have a previous history of evictions or nonpayment of rent. Such discrimination is legal and based on a legitimate business purpose. Illegal discrimination occurs if we make a choice based on a person being in a protected class. Under the Fair Housing Act, these protected classes include race, color, national origin, religion, sex, disability, and families with children.

So, under what circumstances might you be liable for violating the law unintentionally? What if you implement a policy which is neutral on its face and has no discriminatory intent but has a discriminatory effect when actually put into practice? This is a question of disparate impact. Disparate impact is becoming a controversial issue in several cities across the country. New York, for instance, has enacted ordinances to prevent discrimination against felons and several other cities are also considering such restrictions.  These ordinances would essentially make felons a protected class. The cities reasoning behind adopting such an ordinance is that a general prohibition against renting to felons will have a disparate impact on racial minorities, specifically African-Americans and Hispanic Americans, and therefore violates the Fair Housing Act.

When looking at the present categories which are protected by the Fair Housing Act, it seems apparent to me that felons are not similar to those which are presently protected. The protected classes consist of categories in which people have no choice in participation – race, color, national origin, sex, persons with disabilities – or groups in which the choice would not be relevant to a landlord, such as religion or families with children. The same cannot be said regarding felons. No one is born with a felony conviction. A felony conviction results from choices made by that individual. To give felons the protection of the Fair Housing Act protects them from the consequences of their own conduct. No such protection is presently afforded to anyone by the Fair Housing Act.

There is another distinction between the present protected classes and felons. The fact that an applicant is a Hispanic, Jewish, male, does not tell you anything relevant about his character or what kind of tenant that person might be. On the other hand, the fact that a person has committed a felony does say something about his/her character. It shows that the person, on a least one occasion, has shown disregard for the life, safety, or property of another person or has otherwise disregarded the rules of society. Is a landlord being totally unreasonable to think that a felony conviction says something relevant about what kind of tenant that person might be?