When considering what qualifications a tenant should have to be eligible to lease a unit, landlords often consider tenant screening reports that give an account of a tenant’s income, credit history, criminal background, and past eviction history. After reading Professor N. A. Pappoe’s article, The Scarlet Letter “E”: How Tenancy Screening Policies Exacerbate Housing Inequity for Evicted Black Women, we may all want to reconsider the use of tenant screening reports that contain information on these aspects of a tenant’s background.
Pappoe argues that the use of these reports by landlords has a disproportionate impact on Black women, preventing them from obtaining rental housing, both public and private. She suggests that the Fair Housing Act should be interpreted to find that landlords using these screening reports are liable for the disparate impact the policies and practices have on Black women and she proposes legislative fixes to address the issue.
Landlords often hire tenant screening companies to compile background reports on prospective tenants. The reports are used to make a decision whether to offer a lease to a tenant or to decline the tenant the housing opportunity. The reports may include the criminal background, credit history, and eviction history of that prospective tenant.
One issue that Pappoe outlines is the accuracy and thoroughness of these eviction history reports. For example, screening agencies may not differentiate between case outcomes in eviction proceedings. Cases may be settled, or they may be dismissed for a lack of good cause to evict a tenant or for an agreement that allows the tenant to remain and to continue to pay rent. Unfortunately, the eviction filing will remain part of the tenant’s record. A screening company will then report the eviction filing to the landlord, but it will not report that the parties settled or even that the tenant won the case. The report will make no distinction between an eviction filing and an eviction order, leaving the tenant to bear the “scarlet E,” a mark that will affect the ability of the tenant to secure affordable housing in the future.
Pappoe argues that Black women impacted by this tenant screening process should be allowed to bring a claim of housing discrimination under the Fair Housing Act (FHA). The FHA allows for two categories of housing discrimination claims: disparate treatment (intentional discrimination) and disparate impact. Disparate impact cases involve facially neutral policies and practices that have a discriminatory effect on a protected class. Black women impacted by tenant screening reports should be able to bring FHA claims under the disparate impact theory. Black women, because of their race and gender, are a protected class under the FHA that is disproportionately impacted by the practices of landlords in relying on the reports and by the screening companies in compiling the reports.
Whether tenant screening companies can be held liable under the FHA is debatable. On one hand, the companies may be found to not engage in the “sale or rental” of housing as required under Section 3604 of the Fair Housing Act. On the other hand, a broad interpretation of the “otherwise make unavailable” language of Section 3604 could bring tenant screening companies within the FHA. Pappoe notes that no court has yet ruled on whether tenant screening companies can be held liable under the FHA.
To bring a disparate impact case under the FHA, a plaintiff must meet a 3-part test. The plaintiff must first establish a prima facie case by showing a neutral policy or practice that has a disproportionate impact on persons in a protected class. The burden then shifts to the defendant to prove that the defendant has a substantial, legitimate nondiscriminatory interest in the practice. If the defendant meets that burden, the plaintiff can then show that the defendant’s interests could be met by a less discriminatory means.
In arguing that blanket tenant screening policies and practices have a disparate impact on Black women in violation of the FHA, Pappoe presents evidence that Black women are more likely than any other group to face eviction and to be evicted. They are more likely to be refused a lease when a landlord bases a decision on a tenant screening report. Thus, the blanket tenant screening policies disparately impact Black women. She goes on to assert that if a housing provider can establish that a blanket tenant screen policy is necessary to achieve a legitimate non-discriminatory interest, there is a less discriminatory alternative – landlords can use individualized assessments of a tenant’s eviction history. Landlords and other housing providers can consider the facts surrounding the eviction filing or judgement, including whether any errors or inaccuracies are in the report.
Throughout the article, Pappoe relates the problems with tenant eviction screening reports to the use of criminal records in employment and housing matters. She continues this comparison when offering legislative proposals to the negative impact of tenant screening reports, including the sealing and expungement of eviction records and “banning the box.” Sealing records would prevent courts from releasing information about evictions under certain circumstances. “Banning the box” would prohibit landlords from inquiring about an eviction filing that did not result in a judgment for the landlord or that was filed a number of years ago. Such proposals could reduce barriers to rental housing, particularly for Black women who are disproportionately impacted by the current use of tenant screening reports.
In the classic novel The Scarlet Letter, the protagonist is publicly humiliated by being forced to wear the scarlet letter “A.” The letter was meant to be a symbol of shame. Professor Pappoe’s use of “the scarlet letter” is a reminder of the humiliation imposed on prospective tenants who may have an eviction filing on their record that may prevent them from accessing housing opportunities, a problem that disproportionately impacts Black women. Her proposals, including the use of the Fair Housing Act to fight the discrimination, begin to remove that “scarlet E” and replace it with the address of a leased unit.
