Rental Housing’s Rental Housing’s Elephant in the RoomElephant in the Room

The probable disparate The probable disparate impact of unlawful detainer impact of unlawful detainer

case records case records

in rental housing admissionsin rental housing admissions

Eric Dunn, Staff AttorneyNorthwest Justice Project401 Second Ave. S., Ste. 407Seattle, Washington 98104Tel. (206) 464-1519, ext. 234EricD@nwjustice.org

Merf Ehman, Managing AttorneyColumbia Legal Services101 Yesler WaySeattle, Washington 98104Tel. (206) 287-9651Merf.Ehman@ColumbiaLegal.org

Fair Housing in Fair Housing in WashingtonWashington

““It is an unfair practice for any person … It is an unfair practice for any person … because of sex, marital status, sexual because of sex, marital status, sexual orientation, race, creed, color, national origin, orientation, race, creed, color, national origin, families with children status, honorably families with children status, honorably discharged veteran or military status, the discharged veteran or military status, the presence of any sensory, mental, or physical presence of any sensory, mental, or physical disability, or the use of a trained dog guide or disability, or the use of a trained dog guide or service animal … (b) To discriminate against service animal … (b) To discriminate against a person in the terms, conditions, or a person in the terms, conditions, or privileges of a real estate transaction or in privileges of a real estate transaction or in the furnishing of facilities or services in the furnishing of facilities or services in connection therewith…”connection therewith…”

– RCW 49.60.222(1) (Wash. Law Against RCW 49.60.222(1) (Wash. Law Against Discrimination)Discrimination)

– See also 42 USC See also 42 USC § 3601 et seq. (Fair Housing Act)§ 3601 et seq. (Fair Housing Act)

Forms of discrimination may include: Forms of discrimination may include: – Refusing to rent, sell, or negotiateRefusing to rent, sell, or negotiate– Deterrence by advertisements or Deterrence by advertisements or

representationsrepresentations– Denying financing, maintenance, utilities, Denying financing, maintenance, utilities,

insurance, or other housing-related services insurance, or other housing-related services – Providing housing (or related services) but on Providing housing (or related services) but on

inferior termsinferior terms (i.e., discrimination “in the terms, conditions, or (i.e., discrimination “in the terms, conditions, or

privileges of a real estate transaction or in the privileges of a real estate transaction or in the furnishing of facilities or services in connection furnishing of facilities or services in connection therewith”)therewith”)

Equal Access, Use & Equal Access, Use & EnjoymentEnjoyment

Residential Tenant-SelectionResidential Tenant-Selection

Landlord advertises property for rentLandlord advertises property for rent Prospective tenant applies for the Prospective tenant applies for the

rentalrental Landlord considers applicationLandlord considers application

– ““First come, first-served”First come, first-served”– ““Competitive admissions”Competitive admissions”

Landlord makes rental decisionLandlord makes rental decision– Offers, or does not offer, to admit Offers, or does not offer, to admit

applicantapplicant

Disparate TreatmentDisparate Treatment ““Classic” form of discriminationClassic” form of discrimination

– Treating a person less favorably than others Treating a person less favorably than others due to membership in a protected classdue to membership in a protected class

– Key is Key is discriminatory intentdiscriminatory intentOn Montgomery

between Linden and Norton.

2843 Montgomery St.2 MONTHS RENT FREE!! Lovely 2

bedroom and 1 bath house. Large living, dining room, laundry

room, and a large porch perfect for the

summer. Partially fenced yard. Pets ok with extra deposit.

Owner pays garbage. No section 8. Good

credit required. One year lease required.

Circumstantial EvidenceCircumstantial Evidence The The McDonnell-Douglas McDonnell-Douglas Test:Test:

– Person belongs to protected class;Person belongs to protected class;– Person is qualified for the rental;Person is qualified for the rental;– Person applies for the rental but is denied;Person applies for the rental but is denied;– Housing remains available to othersHousing remains available to others

Raises presumption of disparate treatmentRaises presumption of disparate treatment– Landlord must offer “legitimate, non-Landlord must offer “legitimate, non-

discriminatory reason(s)” for the denialdiscriminatory reason(s)” for the denial– Court will assess whether the proffered Court will assess whether the proffered

reason(s) is/are sincere, or a pretext for reason(s) is/are sincere, or a pretext for discriminationdiscrimination

Disparate ImpactDisparate Impact ““Outwardly neutral practiceOutwardly neutral practice” that ” that

causes “a significantly adverse or causes “a significantly adverse or disproportionate impactdisproportionate impact on persons of on persons of a [protected class].”a [protected class].”– Pfaff v. U.S. Dep't of Housing & Urban Dev.Pfaff v. U.S. Dep't of Housing & Urban Dev. , 88 , 88

F.3d 739, 745 (9th Cir. 1996) (quoting F.3d 739, 745 (9th Cir. 1996) (quoting Palmer v. Palmer v. U.S.U.S., 794 F.2d 534, 538-39 (9th Cir. 1986)., 794 F.2d 534, 538-39 (9th Cir. 1986).

A tenant-selection policy that causes a A tenant-selection policy that causes a disparate impact on a protected class disparate impact on a protected class is unlawful unless justified by a is unlawful unless justified by a ““compelling business necessitycompelling business necessity””– No requirement for discriminatory intentNo requirement for discriminatory intent

What makes a good tenant?What makes a good tenant?

Ability to afford rent, utilities, etc.Ability to afford rent, utilities, etc.– Amount and stability of income, assetsAmount and stability of income, assets– Other obligations, debtsOther obligations, debts– Credit historyCredit history

Behavioral suitabilityBehavioral suitability– Applicant not likely to damage the Applicant not likely to damage the

premisespremises– Applicant likely to coexist well with Applicant likely to coexist well with

neighborsneighbors

Tenant-Selection FactorsTenant-Selection Factors

Favored:Favored:– Stable employmentStable employment– High income/wealthHigh income/wealth– Positive rental Positive rental

historyhistory– References/referralsReferences/referrals– Lack of criminal Lack of criminal

historyhistory– Lack of civil Lack of civil

litigationlitigation– ““Good credit” Good credit”

Disfavored:Disfavored:– UnemploymentUnemployment– Public assistancePublic assistance– ““Bad credit”Bad credit”– Debts to past Debts to past

landlordslandlords– Adverse rental historyAdverse rental history– Criminal recordsCriminal records– BankruptciesBankruptcies– EvictionsEvictions– Other civil litigationOther civil litigation

Criminal & eviction records Criminal & eviction records often lead to denial of often lead to denial of housinghousing

Does the denial of housing to Does the denial of housing to applicants with criminal or applicants with criminal or eviction records cause a eviction records cause a disparate impact on members of disparate impact on members of any protected class?any protected class?

Criminal Records: Racial Criminal Records: Racial Disparities Disparities

African-Americans areAfrican-Americans are 12.9% 12.9% of U.S. population of U.S. population 2000 US Census2000 US Census

African-Americans are arrested and African-Americans are arrested and incarcerated at rates disproportionate to their incarcerated at rates disproportionate to their numbers numbers – About About 27%27% of persons arrested each year of persons arrested each year

FBI Uniform Crime Reports, 2003 FBI Uniform Crime Reports, 2003 – Make upMake up 45% 45% of U.S. prison populationof U.S. prison population

Sourcebook of Criminal Justice Statistics, 2000Sourcebook of Criminal Justice Statistics, 2000– 8.2 times8.2 times more likely to be incarcerated than whites more likely to be incarcerated than whites

More than More than 9 times9 times more likely in Washington more likely in Washington Human Rights WatchHuman Rights Watch, Punishment and Prejudice: Racial , Punishment and Prejudice: Racial

Disparities in the War on Drugs,Disparities in the War on Drugs, Vol. 12, No. 2(G) (May 2000) Vol. 12, No. 2(G) (May 2000)

Denying housing to people with criminal records Denying housing to people with criminal records causes a disparate impact on African-Americanscauses a disparate impact on African-Americans

Is the denial of rental housing Is the denial of rental housing to applicants with criminal to applicants with criminal records justified by a records justified by a compelling business compelling business necessity?necessity?

Common justifications given for Common justifications given for rejectingrejecting

rental applicants with criminal rental applicants with criminal records…records…A person with a A person with a

criminal record:criminal record: May pose a danger to May pose a danger to

the landlord or the landlord or neighborsneighbors

Could engage in criminal Could engage in criminal activity at the propertyactivity at the property

Could damage the Could damage the physical premisesphysical premises

Then again, so could a person with no criminal record…

Does a landlord owe a duty to protect tenants Does a landlord owe a duty to protect tenants from criminal acts of third parties (e.g., other from criminal acts of third parties (e.g., other tenants?tenants?

Only if the criminal Only if the criminal acts were acts were foreseeable.foreseeable.– City of Bremerton v. City of Bremerton v.

Widell,Widell, 146 Wn.2d 146 Wn.2d 561, 51 P.3d 733 561, 51 P.3d 733 (2002)(2002)

17

After 5 Years, Offenders No More LikelyAfter 5 Years, Offenders No More LikelyThan Non-Offenders to Be Re-ArrestedThan Non-Offenders to Be Re-Arrested

(Kurlychek, et al. “Scarlet Letters & Recidivism: Does An Old(Kurlychek, et al. “Scarlet Letters & Recidivism: Does An OldCriminal Record Predict Future Criminal Behavior?,” 2006)Criminal Record Predict Future Criminal Behavior?,” 2006)

Criminal Records: A Poor Criminal Records: A Poor ProxyProxy

The disproportionate representation of The disproportionate representation of African-Americans and Latinos among African-Americans and Latinos among Washington’s incarcerated population not a Washington’s incarcerated population not a product of higher rates of crime product of higher rates of crime commission.commission.– Task Force on Race and the Criminal Justice System, Task Force on Race and the Criminal Justice System,

“Preliminary Report on Race and Washington’s “Preliminary Report on Race and Washington’s Criminal Justice System” (2011)Criminal Justice System” (2011)

““[T]he significant racial disparities in arrest [T]he significant racial disparities in arrest rates are not fully warranted by race or rates are not fully warranted by race or ethnic differences in illegal behavior.”ethnic differences in illegal behavior.”--Farrakhan v. Gregoire,--Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir. 2010)* 590 F.3d 989 (9th Cir. 2010)*

Race Disparities: Factors Race Disparities: Factors African-Americans more than 70% more African-Americans more than 70% more

likely to be searched by police than Whiteslikely to be searched by police than Whites– Latinos 50% more likely to be searchedLatinos 50% more likely to be searched

African-Americans 62% more likely to be African-Americans 62% more likely to be imprisoned for felony drug offenses (than imprisoned for felony drug offenses (than similarly-situated Whites)similarly-situated Whites)–Also, focus on crack cocaine has racial impactAlso, focus on crack cocaine has racial impact

African-Americans get harsher treatment in:African-Americans get harsher treatment in:–Conditions on pre-trial release (bail)Conditions on pre-trial release (bail)–Legal financial obligations & asset forfeituresLegal financial obligations & asset forfeitures

**Task Force on Race & Crim. Just. Syst., “Preliminary Task Force on Race & Crim. Just. Syst., “Preliminary Report on Race and Washington’s Criminal Justice Report on Race and Washington’s Criminal Justice System” (2011)System” (2011)

Criminal history: factorsCriminal history: factors What was the offense?What was the offense?

– Focus on the facts of the crimeFocus on the facts of the crime How does the offense relate to How does the offense relate to

housing? housing? How long ago did the offense occur?How long ago did the offense occur? What were the circumstances?What were the circumstances?

– Age of offenderAge of offender– Drug/alcohol useDrug/alcohol use

Evidence of changed circumstancesEvidence of changed circumstances

Relevant CasesRelevant Cases Green v. Missouri Pacific R.R., Green v. Missouri Pacific R.R., 523 F.2d 1290 (8th

Cir. 1975)

– Title VII prohibited employer from categorically denying employment to applicants with prior criminal convictions because of the disparate impact such a policy would have on African-Americans (who, at that time, were between 2.2 and 6.7 times more likely to be convicted of a criminal offense than whites)

Talley v. Lane, Talley v. Lane, 13 F.3d 1031 (7th Cir. 1994)13 F.3d 1031 (7th Cir. 1994)

– Upheld HUD-prescribed criteria that excluded from Upheld HUD-prescribed criteria that excluded from public housing “individuals with a history of public housing “individuals with a history of convictions for property and assaultive crimes convictions for property and assaultive crimes [who] would be a direct threat to other tenants”[who] would be a direct threat to other tenants”

Relevant Cases: WashingtonRelevant Cases: Washington

Oliver v. Pacific Northwest Bell Telephone Oliver v. Pacific Northwest Bell Telephone Co., Inc.,Co., Inc., 106 Wn. 2d 675; 724 P.2d 1003 106 Wn. 2d 675; 724 P.2d 1003 (1986)(1986)– Employer’s policy of terminating employment for Employer’s policy of terminating employment for

“dishonest acts“ was not an unfair practice “dishonest acts“ was not an unfair practice – Employer made case-by-case determinations, Employer made case-by-case determinations,

not a categorical policy:not a categorical policy:

““[Employer’s] discretionary and subjective [Employer’s] discretionary and subjective decision making process in determining action decision making process in determining action to be taken when an employee was found to to be taken when an employee was found to have committed a dishonest act and/or was have committed a dishonest act and/or was convicted thereof."). convicted thereof.").

Rule: denial of rental housing Rule: denial of rental housing based on criminal convictionsbased on criminal convictions

In Washington, a landlord probably has a In Washington, a landlord probably has a compelling business necessity to deny a compelling business necessity to deny a residential housing application based on a residential housing application based on a prospective tenant’s conviction record prospective tenant’s conviction record only if:only if:– On a case-specific analysis of all relevant On a case-specific analysis of all relevant

factors, a reasonable landlord would find the factors, a reasonable landlord would find the applicant to present an undue risk of engaging applicant to present an undue risk of engaging in future criminal activity at the premises, or in future criminal activity at the premises, or that would pose a danger to the landlord, that would pose a danger to the landlord, neighbors, or the property itselfneighbors, or the property itself

Eviction RecordsEviction Records Could a residential landlord who Could a residential landlord who

categorically rejects any applicant who has categorically rejects any applicant who has been sued for eviction (i.e., unlawful been sued for eviction (i.e., unlawful detainer) cause a disparate impact on detainer) cause a disparate impact on (members of) any protected class?(members of) any protected class?– Yes:Yes: such a policy would have a disparate impact such a policy would have a disparate impact

on any group that is more highly-represented on any group that is more highly-represented among unlawful detainer defendantsamong unlawful detainer defendants

If such a group exists, the categorical denial of If such a group exists, the categorical denial of applicants with UD records is unlawful unless applicants with UD records is unlawful unless justified by a compelling business necessity!justified by a compelling business necessity!

Eviction RecordsEviction Records Eviction filings detected through SCOMISEviction filings detected through SCOMIS

– Data entered by court clerk Data entered by court clerk upon case filingupon case filing– Circumstances, case outcome seldom Circumstances, case outcome seldom

consideredconsidered

Possible business justifications Possible business justifications for denying housing to for denying housing to

applicantsapplicantswith unlawful detainer records:with unlawful detainer records: The applicant may be irresponsibleThe applicant may be irresponsible

– Financially or otherwiseFinancially or otherwise The applicant may be indifferent to or The applicant may be indifferent to or

contemptuous of tenancy obligationscontemptuous of tenancy obligations The applicant may be unable to take The applicant may be unable to take

proper care of rental premisesproper care of rental premises Others?Others?

UD Records: FactorsUD Records: Factors

What was the reason for the UD?What was the reason for the UD?– Allegations in complaint, eviction noticesAllegations in complaint, eviction notices

What were the surrounding What were the surrounding circumstances?circumstances?– May or may not appear in written answer May or may not appear in written answer

or pleadingor pleading How was the case resolved?How was the case resolved?

– If judgment, was it on merits or by If judgment, was it on merits or by default?default?

– Any post-judgment proceedings? Any post-judgment proceedings? Evidence of changed circumstances?Evidence of changed circumstances?

Rule: denial of rental housing Rule: denial of rental housing based on eviction filingsbased on eviction filings

In Washington, a landlord probably has a In Washington, a landlord probably has a compelling business necessity to deny a compelling business necessity to deny a residential housing application based on a residential housing application based on a prospective tenant’s eviction record only if:prospective tenant’s eviction record only if:– On a case-specific analysis of all relevant On a case-specific analysis of all relevant

factors, a reasonable landlord would find the factors, a reasonable landlord would find the applicant to present an undue risk of defaulting applicant to present an undue risk of defaulting in rent or violating some other material term of in rent or violating some other material term of the tenancythe tenancy

But remember, this only matters if a But remember, this only matters if a disparate impact can be shown!disparate impact can be shown!

Disparate Impact RevisitedDisparate Impact Revisited Possible correlatives of eviction:Possible correlatives of eviction:

– Tenuous employment/unstable incomeTenuous employment/unstable income– Low income/minimal assetsLow income/minimal assets– Having children (esp., as a single parent)Having children (esp., as a single parent)– Lack of support networksLack of support networks– Limited access to credit/emergency fundsLimited access to credit/emergency funds– Having a roommate/shared living situationHaving a roommate/shared living situation

Candidate protected classes:Candidate protected classes:– Race, color, ethnicity, gender, FwC, disabilityRace, color, ethnicity, gender, FwC, disability

Empirical Studies (1)Empirical Studies (1) A recent study in Milwaukee, WI, showed A recent study in Milwaukee, WI, showed

that low-income African-American that low-income African-American women, especially those who were women, especially those who were single mothers, tended to face eviction single mothers, tended to face eviction at disproportionately higher rates.at disproportionately higher rates.

Desmond, Matthew, “Eviction and the Desmond, Matthew, “Eviction and the Reproduction of Urban Poverty,” Reproduction of Urban Poverty,” Paper presented Paper presented at the American Sociological Association Annual at the American Sociological Association Annual Meeting, Hilton San Francisco, San Francisco, CAMeeting, Hilton San Francisco, San Francisco, CA , , Aug 08, 2009Aug 08, 2009

A 2002 study in Oakland, CA, found that A 2002 study in Oakland, CA, found that 78% of “30-day no cause” evictions were 78% of “30-day no cause” evictions were of “minority households”of “minority households”

Empirical Studies (2)Empirical Studies (2) Chicago, 1996:Chicago, 1996:

– 72% of defendants appearing in eviction court 72% of defendants appearing in eviction court were African American, 62% were womenwere African American, 62% were women

Philadelphia, 2001: Philadelphia, 2001: – 83% of tenants facing eviction were 83% of tenants facing eviction were

“nonwhite,” 70% were “nonwhite women”“nonwhite,” 70% were “nonwhite women” Other studies in Baltimore, NYC, and LA “have Other studies in Baltimore, NYC, and LA “have

shown that those who are evicted are shown that those who are evicted are typically poor, women, and minorities.”typically poor, women, and minorities.”– Hartman, Chester & David Robinson, “Evictions: The Hidden Hartman, Chester & David Robinson, “Evictions: The Hidden

Housing Problem,” 14 Housing Policy Debate 461 (2003) Housing Problem,” 14 Housing Policy Debate 461 (2003)

Eviction Demographics: King Eviction Demographics: King CountyCounty

King County Eviction King County Eviction DataData

A 2010 Study by students in the UW-Bothell Policy A 2010 Study by students in the UW-Bothell Policy Studies Program* found that:Studies Program* found that:– A moderate negative relationship exists between A moderate negative relationship exists between

the percentage of White tenants in a zip code the percentage of White tenants in a zip code area and that zip code area’s UD rate area and that zip code area’s UD rate

– A moderate positive relationship exists between A moderate positive relationship exists between the percentage of non-White tenants in a zip code the percentage of non-White tenants in a zip code area and that zip code area’s UD rate area and that zip code area’s UD rate

– Strongest Correlations: Black, Multi-Racial tenantsStrongest Correlations: Black, Multi-Racial tenants Is this methodology sufficiently persuasive?Is this methodology sufficiently persuasive?

*Gehri, Leah M., John Lee, Logan Micheel and Damian Rainey,“Tenant *Gehri, Leah M., John Lee, Logan Micheel and Damian Rainey,“Tenant Screening Practices: Evidence of Disparate Impact in King County, Screening Practices: Evidence of Disparate Impact in King County, Washington,” March 16, 2010Washington,” March 16, 2010

The Elephant in the RoomThe Elephant in the Room The categorical denial The categorical denial

of rental applications of rental applications based on UD filings is based on UD filings is widespread in Wash.widespread in Wash.

Probable disparate Probable disparate impact on race, color, impact on race, color, gender, families w. gender, families w. children, disability, or children, disability, or other protected classother protected class

Discriminatory effect Discriminatory effect not likely justifiable on not likely justifiable on grounds of compelling grounds of compelling business necessity.business necessity.

Eliminating Bias in the Eliminating Bias in the SystemSystem

Washington courts should begin Washington courts should begin tracking demographic information about tracking demographic information about unlawful detainer defendantsunlawful detainer defendants– Which, if any, groups face eviction suits at Which, if any, groups face eviction suits at

rates disproportionate to their numbers?rates disproportionate to their numbers? Rationales:Rationales:

– Courts should ensure their records are not Courts should ensure their records are not being used to engage in housing being used to engage in housing discriminationdiscrimination

– Access to justice: reflexive denials based on Access to justice: reflexive denials based on UD filings erodes the integrity of the forumUD filings erodes the integrity of the forum Especially pernicious if effect is discriminatoryEspecially pernicious if effect is discriminatory

Access to Justice Concerns Access to Justice Concerns 2.02.0

The categorical exclusion of UD defendants, The categorical exclusion of UD defendants, as an industry norm, “disciplines” tenantsas an industry norm, “disciplines” tenants

SkipWatch (LexisNexis):SkipWatch (LexisNexis):– ““A proprietary Rental Housing Database A proprietary Rental Housing Database

designed to increase consequences for designed to increase consequences for residents who pay late or commit lease defaults residents who pay late or commit lease defaults and encourages {sic} resident responsibility.”and encourages {sic} resident responsibility.”

Non-discriminatory,* but may be Non-discriminatory,* but may be illegitimateillegitimate– Tantamount to employee blacklistingTantamount to employee blacklisting– See also RCW 49.60.030(1)(f)See also RCW 49.60.030(1)(f)