The Oakland City Council voted to approve the Ronald V. Dellums and Simbarashe Sherry Fair Chance Access to Housing Ordinance on January 28, 2020.  The new ordinance, which took effect immediately after the vote, will likely have several disconcerting effects on citizens of the city.

Under the new ordinance, housing providers may not inquire about a housing applicant’s criminal history, regardless of the method of inquiry and may not take an adverse action against the applicant based upon any criminal history information known by the housing provider, irrespective of how the information was obtained. Additionally, Housing Providers:

• may not advertise that people with criminal histories will not be considered for housing;
• must post a notice drafted by the city council informing applicants of their rights under the new ordinance on their applications, websites, and any other locations under their control that are frequently visited by applicants;
• must provide written notice to the applicant when taking adverse action based on criminal history information that includes, at a minimum:
  • Reason(s) for the decision;
  • Instructions on how to file a complaint with the city;
  • A copy of the criminal history information at issue; and
  • An opportunity to rebut or mitigate the information prior to final denial; and
• may not interfere with, restrain, or deny (or to attempt to), the exercise of any right it protects or to take adverse action against any person who has exercised or attempted to exercise any right it protects.

Exemptions.

Of course, there are a few exemptions and exceptions to the ordinance, which does not apply to:

• Dwellings with three or less units where the housing provider also resides; or
• Tenants looking to add or replace roommates.

Exceptions.

The general prohibition against requesting criminal history information does not apply to situations where federal or state laws require the housing provider to exclude tenants from housing based upon certain types of criminal history (federal Section 8 housing, for example). Also, providers may review the registry of lifetime sex offenders operated by the State of California’s Department of Justice. For either of these exceptions to apply, the provider must first:

• Give notice of the screening required on the rental application;
• Determine whether the applicant is otherwise qualified for housing;
• Provide a conditional rental agreement subject to the screening; and
• Receive written consent from the applicant or give the applicant the opportunity to withdraw the rental application.

Penalties for Violations.

Penalties for violations will be significant. The city may choose to bring actions against violators that include fines for up to $1,000 per violation or any aggrieved person may bring a civil action for damages. For each violation, an aggrieved party could recover up to three times the greater of:

• Actual damages (including mental/emotional damages);
• One month of rent the provider charges for the unit applied for; or
• The HUD Small Area Fair Market rent for the unit

plus

• Possible punitive damages; and
• Attorneys’ fees and costs.

Not to mention, there is also a possibility of criminal charges. Fortunately, there will be a 180-day grace period from the ordinance’s effective date for housing providers to come into compliance unless they receive an initial warning notice of a violation and continue the unlawful practice in question.

Other jurisdictions, such as Cook County, Illinois and Minneapolis, Minnesota have enacted similar legislation; however, their regulations are much less restrictive and only prohibit landlords from making decisions based on criminal convictions that occurred more than three years ago, rather than prohibiting screening in its entirety. Seattle is currently the only other jurisdiction with restrictions as broad as Oakland’s, but advocacy for these restrictions is spreading quickly throughout California. The City of Berkeley, for example, is set to vote on a similar ordinance this month.

Effects on Oakland’s Citizens.

Most of us likely agree that it is generally a good thing for individuals to have access to safe and affordable housing. However, Oakland’s ordinance poses a few issues for those other than housing applicants. First, it fails to take into account the benefits of screening prospective tenants to prevent those with serious (perhaps violent) criminal histories from living in proximity to vulnerable populations, putting other tenants at risk. As a related matter, the ordinance doesn’t provide immunity for landlords who house convicted criminals who go on to harm other residents because the landlord was not legally able to pre-screen the dangerous tenant. This means that a victim could go on to sue the landlord for negligence in allowing the criminal to reside there, even though the landlord did not have the practical ability to prevent it from happening.

This ordinance creates a protected class that isn’t recognized under traditional civil rights laws. This broad, possibly overreaching restriction on tenant screening could do more harm than good for those in existing protected classes. When landlords don’t have tangible evidence to make their housing decisions on (e.g., background checks and credit scores) they are more likely to rely on stereotypes (e.g., race) to make their decisions.¹ Landlords may even choose to raise their rental rates in an effort to discourage low-income ex-offenders from applying to rent an apartment. This may inadvertently also prevent historically disadvantaged minorities from obtaining affordable housing, directly conflicting with the objectives of the ordinances. Only time will tell.

¹ C.f., Michael A. Stoll, Ex-Offenders, Criminal Background Checks, and Racial Consequences in the Labor Market, U. if Chicago Legal Forum, Vol. 2009, Issue I, Article II.

This publication is provided only for educational purposes; it should not be relied upon as legal advice, and it should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used for resolving disputes or managing risk.  Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship. Copyright 2020 ©Employment Screening Services, Inc. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of ESS.