New Seattle Ordinance Throws a Wrench into the Tenant Screening Process

The City of Seattle added a new chapter to its municipal code, prohibiting the use of criminal history for tenant screening purposes except under very specific circumstances.  The law applies to most rental housing located within the city limits – with very limited exceptions – and is effective February 19, 2018.

There is no argument that this legislation presents its own set of challenges and frustrations. The bottom line is, it passed and will take effect next month. With that, it is time to focus on understanding the new chapter (known as Fair Chance Housing) and “refine”  policies and practices in ways that allow for vigorous screening of prospective residents without becoming a target of the Seattle Office of Civil Rights (SOCR).

Essentially, Seattle’s Fair Chance Housing ordinance makes those with a criminal history a protected class for fair housing purposes.  It is unlawful for a landlord to deny tenancy based on criminal history.  So the same policies and practices put in place to guard against other forms of discrimination apply to discrimination based on criminal history.  For example, it is an unfair practice to:

  • “Advertise, publicize or implement any policy or practice that automatically or categorically excludes all individuals with any arrest record, conviction record, or criminal history....”
  • “... Take an adverse action against a prospective occupant, a tenant or a member of their household, based on any arrest record, conviction record, or criminal history.

There are two exceptions to this rule.

It does not apply to rental housing subject to federal regulation requiring denial of tenancy when a member of the household is subject to a lifetime sex offender registry requirement, or  has been convicted of manufacturing or productions of methamphetamine on the premises of federally assisted housing.

Additionally, it does not prohibit adverse action based on “registry” (meaning sex offender registry) information if there is a “legitimate business reasons for doing so”.

A “legitimate business reason” shall exist when the policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. To determine such an interest, a landlord must demonstrate through reliable evidence, a nexus between the policy or practice and resident safety and/or protecting property, in light of the following factors:

  • The nature and severity of the conviction
  • The number and types of convictions;
  • The time that has elapsed since the date of conviction;
  • Age of the individual at the time of conviction;
  • Evidence of good tenant history before and/or after the conviction occurred; and
  • Any supplemental information related to the individual’s rehabilitation, good conduct, and additional facts or explanations provided by the individual, if the individual chooses to do so. For the purposes of this definition, review of conviction information is limited.

Let’s put this all in perspective.  First of all, what percentage of applicants are denied solely on the basis of criminal records?  It is very small indeed.  Many, if not most, will be denied based on credit or rental history.

That said, rental history is increasingly important.  Done well, rental references remain perhaps the best predictor of whether an applicant will fulfill the terms of their rental agreement.

There is no doubt the existence and blanket application of easily accessible criminal data to the tenant screening process has made life very difficult, perhaps impossible, for those with a criminal history.  The question is whether Seattle’s Fair Chance Housing ordinance is the answer, and to what extent, will make a difference? Only time will tell.