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| JoAnn Kamuf Ward |
A number of other jurisdictions have implemented similar laws, in one case drawing a legal challenge from landlords.
JoAnn Kamuf Ward, deputy commissioner of policy and external affairs for the New York City Commission on Human Rights, recently spoke to Law360 Real Estate Authority about the new law, a few months in.
This conversation has been lightly edited for concision and clarity.
Can you briefly describe the problem this was seeking to address, the scale of the problem, and the potential impact?
Sure, and I will be giving a huge nod to some of the advocates and stakeholders that really were behind advocacy for the New York City Fair Chance Housing Law.
What we know is that over 750,000 New Yorkers have conviction histories, and many more people have been impacted by the criminal legal system, either being arrested or being charged with crimes. So the number of individuals who will be impacted is likely larger than that, and we know that individuals have been denied housing for decades, just on the basis of a conviction, conviction history, or sometimes even on the basis of an arrest.
In a number of jurisdictions, historically, there have been what are called Ban the Box laws, that say you cannot ask on an application, "Do you have a felony or a conviction?" What the New York City law does is really go further than that, to place guardrails on when and how housing providers can ask about conviction history, and what sort of arrest or conviction records housing providers are able to look at. So it has both notice requirements and process requirements, again, in service of ensuring that there's a level playing field for individuals who are applying for housing.
Are you able to track how many justice-involved applicants are rejected from housing, and how many people have been potentially rejected from housing on that basis?
I don't have solid numbers on that — we are just starting the tracking of seeing how many complaints are coming to us — but we do know that many people have individualized stories of being turned away from housing on the basis of a criminal history.
As I was mentioning, there is a very robust coalition of advocates, many who have been impacted by the criminal legal system, many who have individualized stories of looking for apartments and being turned away when they are asked about having a criminal history. Again, this is all before the law passed, and we also know that just the fact that applications had questions about criminal history and criminal records has a chilling effect on people even applying.
So, once we start to have the data on people who are perceiving that they're rejected based on criminal history, I don't think it's going to tell the whole story of what it looks like to be seeking housing with an arrest or criminal history or conviction.
What are the main provisions of the law, and can you walk through the enforcement mechanisms?
I'll start with the main provisions of the law, and then I'll talk about how we're thinking about enforcement.
The law puts guardrails in place on when and how housing providers can consider conviction history information. So if there is a housing provider who is choosing to run a background check, they can only do so after they have reviewed an applicant's noncriminal information and made a conditional offer of housing. At that point, if a housing provider wants to run a criminal background check, they have to provide a notice of rights about the Fair Chance Housing Law. Housing providers are able to look at a limited amount of information related to convictions. They're able to look at three categories of convictions. They're not able to look at arrests. They're not able to look at pending cases or other adjudications that were terminated in favor of an individual.
Once a landlord has provided notice and proceeded with a background check, if they choose to do so, there's a process put in place that they have to follow. So if you receive a criminal background check or look at anyone's conviction history along the parameters that I just said, you then share that information with an applicant, so that they know what information you are looking at and there's a period of time for applicants to be able to provide information to the landlord.
There's a five business-day window where applicants have the ability to do a few things — one, identify any errors in the conviction history. Sometimes it's not a person's correct name, sometimes it's not their record, and sometimes there are errors and even a record for that particular person. They can point out if any of the convictions on that record or search are things that are not reviewable under the Fair Chance Housing Law.
And then they also have the ability to provide information in support of their application. That can mean many things to different people, depending on their circumstances. It can mean references, personal or professional. It can be explaining the context for a conviction or any other information someone believes would be helpful in support of their application.
Once a housing provider has all of that information, it's up to them to identify if they want to revoke the conditional offer that I mentioned. It's up to the housing provider to identify that they have a nondiscriminatory legitimate business interest and that revoking the offer is going to serve that interest. Here we're really looking at a totality of the circumstances of the individual applicant.
So really, the aim, again, is to pause the process and ensure that any decision that would remove a housing opportunity from an individual is based on a very narrowly tailored set of considerations, and they have to provide that reason in writing to an applicant.
And this is for both leasing transactions and sales, condos or co-ops, right? This is for all of those situations.
It covers most housing in New York City, with some limited exceptions, but yes, it applies to rentals and sales. It's worth noting that housing providers are defined in our law to include most of the people in the decision-making process. That includes landlords, property managers, real estate brokers, who have the ability to make decisions about whether or not you receive housing. So it's a broad swath of people, and that's part of the reason we think that education outreach is so important. There's people who are going to adjust how they're doing business, and it's important that they're aware of these protections, among others.
What if the landlord orders a background check, expecting to receive only the reviewable information, but instead they receive all of the other stuff they're not supposed to consider? After they make the decision, they have to provide the background check to the applicant, but if there's a lawsuit, does the law assume the landlord did not rely on the nonreviewable criminal history that was inadvertently viewed?
Yes, there's a rebuttable presumption written into the law. If someone has the information that they are looking at, they need to give an explanation of why they received it, that they didn't look at it, and what they were considering. So housing providers are going to have to make the case that even if they had something, it wasn't something that impacted their decision.
But I think the other piece of this that I have discussed with many, both housing providers and tenants, is that a lot of landlords are not doing background checks. We know that large landlords are doing background checks. This law does not require anyone to do background checks, and it doesn't prohibit them. It puts in place, if you're choosing to do a background check, a process that promotes transparency, and we think ultimately is going to, as I said earlier, level the playing field by really causing people to think through what are the reasons that I want to reject this candidate. Are they related to an actual business reason, or is this potentially based on some more speculative concerns, which, as we know, are not a justification for discrimination.
What kinds of questions have you gotten from the real estate community on the implementation of this law?
I will say a few things. A number of housing provider organizations were involved in the passage of the law. So even if you look today at LinkedIn, the Real Estate Board of New York has information about the Fair Chance Housing Law. Before the law went into effect, we were getting lots of questions about the notice of rights that landlords need to provide tenants, which I think signals positive belief that landlords want to comply.
The questions have been somewhat around the timing of the process. Do we need to hold units open? The answer is yes. And I think when we get a question about wanting to rent apartments quickly, our response is often what I previously said, that you are not required to do a background check, but if you want to, that's going to add an additional layer into the process.
So people have asked about timing, they've asked about holding units open, and then they've asked, what can I look at? And the answer is, once you've done a background check, after a conditional offer, you can look at three types of convictions. You can't look at adjudications as a youthful offender. You can't look at arrest or pending cases, because those are not adjudications that have been terminated or determinative of what has happened or what an individual has been found to be convicted for. However, you can look at recent misdemeanors and recent felonies. The law also allows housing providers to look at convictions which require someone to be registered on a sex offense registry.
What are some of the exemptions?
There's a carveout for owner-occupied housing, both, you know, if you're renting rooms in your home, or if it's a two-family home and the landlord or their family member lives in the home. The other carveout, really, which is a recognition of federal and state law, is if federal or state law require you to do a background check. So this is HUD-funding housing, for example, where there are some automatic reasons that you have to turn away an applicant, you still comply with those laws.
How does this dovetail with the Fair Housing Act and also recent guidance on tenant screening?
It's different. They're all part of the same ecosystem. Federal law does not explicitly prohibit discrimination based on criminal history, but HUD has made several reports and findings that the use of criminal records in housing can have a disparate impact on particular populations that have long been disproportionately impacted by the criminal legal system. And as you mentioned, there are laws that require notice and process for background checks. Landlords are still responsible for complying with those laws, and there are limits on how much you can charge individuals for background checks, and if individuals provide their own background check, you have to follow that as well. But the anti-discrimination law really sits kind of adjacent to those and is more about the process in the housing decisions itself, and we have similar protections in employment for criminal history. So those have been in place actually for much longer.
New York was not the first jurisdiction to pass a law like this. What other implementation models did you look at?
There has been quite a bit of interaction with other jurisdictions. I think we are always wanting to learn from other jurisdictions that have similar protections to ours, and there's a lot of information-sharing. There are a few jurisdictions that have fair chance housing protections. They are all a bit different than New York City's, because every jurisdiction takes its own bill-drafting journey, but Washington, D.C., has protections against criminal history discrimination.
There are a few models that we looked at pretty closely that I will talk about. One is in Cook County, Illinois, where the Fair Chance Housing Law put in place one three-year lookback period for every type of conviction. So it said housing providers can look back three years, and that's it. After that you can't look at anything. That was an intriguing model.
New Jersey has taken a much different approach, where there are lookback periods for different types of convictions. So depending on what the underlying conviction is, that tells you what a landlord can look at. And we've been following the implementation of that law. I think, maybe not surprisingly, in the early years of implementation, a lot of the violations were on ads and applications, which tracks with our experience in the employment space and which I think will likely continue in the housing space in New York City.
And then a third jurisdiction that we were looking at was Seattle, which had a ban on all inquiries into criminal history by housing providers. That law was struck down last year or two years ago, but it was very different than ours, because, as I was saying, New York City's human rights law is really guardrails on when and how you ask about criminal history. It's not a complete ban on criminal history. And Seattle has a whole host of other laws that were at play with their Fair Chance Housing Law. Parts of it still stand, but I don't want to speak about litigation.
But you were asking about enforcement.
I would love to hear more about enforcement.
So our No. 1 enforcement and compliance tool is education. That's really where we are focused in the first months of the law. So we have, you know, a specific training on fair chance housing protections, which are available to all New Yorkers free of charge. And we actually offer that training to any New Yorker, but specifically we have housing training for real estate brokers, so that real estate brokers can get continuing education credits for learning about fair housing laws. And that's something that will now incorporate this particular provision.
But we know that not everyone will be complying with the law even when they learn about it. So we also have a number of proactive investigatory and enforcement tools. One of those is testing, which is a longstanding civil rights anti-discrimination tool where you either can look at applications and just identify if they're facially violating the law by referencing criminal history or putting limitations on criminal history, but where we can also send out what are called "matched pair testers." You send out an individual with a conviction history and one without, and they will apply to the same housing provider and see how the results differ. And that type of testing can lead to what we call a commission-initiated claim, which means that we start a case against a housing provider based on evidence that discrimination is occurring. So it doesn't require someone to come to us to report discrimination.
For individuals that come to us, there are two pathways. Sometimes they're separate, but sometimes they're sequenced. One is called a pre-complaint intervention. So that means someone calls us and says, "Hey, I just applied for an apartment. I was told we don't take applicants with convictions," right? Sounds like a facial violation of the law, something that can be quickly resolved and rectified. So that is something where our law enforcement bureau, again, with the consent of an individual, can reach out and try and get that rectified quickly, without even filing a complaint. When that doesn't work out, or if someone's not interested in pursuing that, individuals can file complaints with us, individuals can come to us represented, or if individuals come without an attorney, we the law enforcement bureau work with individuals to file a claim and to pursue an investigation — and I think our investigations and the outcomes of those cases can be really amazing for New Yorkers.
We have had in just the past year a whole host of settlements that really expanded access to housing in the space of source of income, and we've had really useful settlements in the employment space for fair chance, where we've worked with employers to create pipelines for employment for people with criminal histories where we found that there's a pattern and practice of employment discrimination on that basis. So we have not only the ability to award financial damages and civil penalties against respondents, but the ability to fashion novel policy and practice changes. The ultimate goal is always to address individual harm where it's occurred, but also really to think about how we address the root causes of the types of discrimination that we're seeing.
--Editing by Marygrace Anderson.
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