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Opening Acts: May 2, 2022

NYC Changes Background Check Policy for City-Funded Housing Following FHJC Investigation and LAS Lawsuit

APPLICANTS NO LONGER AUTOMATICALLY DISQUALIFIED FOR JUSTICE INVOLVEMENT

Following a federal lawsuit filed by The Legal Aid Society (LAS) with the assistance of testing by the Fair Housing Justice Center (FHJC), New York City has enacted changes in its policy regarding criminal background checks in City-funded housing developments.

Previously, the City required all developers participating in its subsidy and loan programs to run criminal background checks on all applicants. With few rules in place for applying such background checks, some buildings enforced arbitrary, extreme, and discriminatory criminal record admission policies, such as rejecting any applicants for housing who had an offense in the past 10 years.

One such applicant, Ms. L. Smith, was denied an apartment in a City-funded development because of a ten-year-old felony, despite her exemplary post-conviction record of employment and community volunteer work. An FHJC investigation led to a lawsuit brought by LAS, alleging the policies constituted unlawful discrimination and had a discriminatory impact on Black and Latino applicants. 

The City has made the following policy changes:

  • Applicants to HPD- and HDC-funded housing may no longer be rejected because of a felony record older than five years or a misdemeanor conviction older than one year.
  • Applicants with a more recent felony or misdemeanor record cannot be rejected without considering the applicant’s evidence of rehabilitation including employment history, certificate of relief from disabilities, mitigating factors surrounding the conviction, recommendations, and volunteer or community activities.
  • Offenses not enumerated in Attachment AA-4 provided on HPD’s website cannot be considered, and applicants must be notified of their right to present evidence of rehabilitation.

The policy is described in greater detail in HPD’s marketing handbook and its attachments, available on HPD’s website HERE.

The new policy applies to units that are marketed through NYC Housing Connect (the City’s open housing lottery for affordable units) and any units receiving assistance through its Housing Development Corporation (HDC) or the Housing Development Corporation (HPD) programs.

The policy change has important implications for low-income households applying for City-funded units, homeless households applying for set-aside apartments, and anyone with a felony or misdemeanor record applying for City-funded housing.

“Extensive research has proven that Black and Latino people in America are disproportionately convicted and incarcerated in comparison to their white counterparts,” stated FHJC Legal Coordinator Madhulika Murali. “By definition, a blanket policy of rejecting everyone with a history of justice involvement has a disparate impact based on protected characteristics of race and ethnicity, in violation of fair housing laws. While this change in City policy isn’t perfect, it is a step toward greater equity in housing, giving more New Yorkers a fair chance at finding a home. Congratulations to the Legal Aid Society for their work in achieving this important change.”

LAS attorney Robert Desir added, “Securing housing after incarceration is a critical tool for rejoining society, reuniting families, and avoiding recidivism. We are pleased that these new policies will ease entry into permanent housing for those affected by the criminal legal system. People who have paid their debt to society should not be subject to additional punishments like housing discrimination that extend beyond their sentence.” Mr. Desir and LAS attorneys Judith Goldiner, Lilia Toson, and Samuel Frizell represented Ms. Smith, along with D. Brandon Trice and Molly K. Webster at Kaplan Hecker & Fink LLP, who served as co-counsel on the litigation.

“Lobbying efforts and activism aimed at politicians and lawmakers aren’t the only ways to get important policy changes enacted,” added FHJC Policy Coordinator Britny McKenzie. “In this case, a City agency changed its policy as the result of a private lawsuit shedding light on systemic injustice.”

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.