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Memo Released from HUD’s Office of General Counsel

In April 2016, the HUD’s Office of General Counsel released a memo to “providers or operators of housing and real-estate related transactions.” The document reflects guidance regarding the investigation and prosecution of claims of discrimination in housing determinations based upon the use of criminal background information. According to HUD’s general counsel, a policy that would deny housing or services to an applicant on the basis of criminal history warrants investigation of whether the policy has a discriminatory effect in violation of the Fair Housing Act.

Claims of discrimination trigger a burden-shifting analysis. Counsel suggests a plaintiff (or HUD in an administrative adjudication) may meet its initial burden through local or national statistics regarding the rate of incarceration of persons of different race or national origin. If the statistics reflect a disparity between different groups (and the memo points to such disparities), counsel opines this demonstrates the resulting housing determinations have a discriminatory effect. According to HUD’s counsel, the housing provider must then respond with evidence that the policy was not motivated by a discriminatory intent, and “reliable evidence that [the housing provider’s] policy or practice of making housing decisions based on criminal history actually assists in protecting resident safety and/or property.” If the provider carries this burden, the plaintiff or HUD may nevertheless prove discrimination if it can offer evidence of a less discriminatory alternative to the practice in question. Read the full memo here.

About the Author

Matthew Drewes assists clients with virtually all business law and real estate matters. He practices primarily in the areas of commercial litigation, community association law, construction litigation, creditors remedies and debtor/creditor law, real estate litigation and insurance litigation.

Contact ​Matt by email or by phone at (612) 305-1408.


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