By: Mike Glasser, RPBG President
On January 1, 2020, two new protected classes will be added to the 15 that already exist under Cook County Human Rights laws:
- Ex-offenders with criminal convictions that occurred more than three years in the past (excluding registered sex offenders or child sex offenders subject to residency restrictions) may not be denied housing
- Ex-offenders with criminal convictions within the past three years may still not be denied housing until the housing provider conducts an “individualized assessment”
The addition of these two new protected classes is the result of the Just Housing Ordinance (JHO) that the Cook County Board enacted last April, which is scheduled to take effect on January 1, 2020. The JHO starts with the assumption that ex-offenders have paid their dues to society and have a right to be treated as any other citizens when seeking housing. For those ex-offenders who were convicted of a crime within the past three years, the JHO requires property owners (or their agents) to conduct an “individualized assessment” that considers a range of factors to determine whether “denial based on criminal conviction is necessary to protect against a demonstrable risk of harm to personal safety and/or property.”
Those of us in the housing industry who lease apartments, or who oversee others who lease apartments on our behalf, may struggle to understand the new terms and concepts introduced in the JHO. Let’s look at some of these terms and examine what they mean and how they will impact our businesses when ex-offenders apply for housing in our buildings:
Individualized assessment – The JHO requires property owners to look at more than just the criminal offense and learn more about the person who committed it. The JHO asks property owners to ask the following questions: How long has it been since the applicant offended? What has the applicant done with his or her life since that time? What was the nature of the crime and how serious was it? What steps has the applicant taken to reacclimate to society? And even, was the criminal conviction related to an applicant ‘s disability and we would need to decide if we could provide “ any reasonable accommodation to ameliorate any purported demonstrable risk.” In other words, the individualized assessment asks property owners to go beyond judging an applicant based on the prior conviction alone, but to instead consider who the person is and what his or her qualifications are based on a wide range of factors.
Demonstrable risk – Part of the individualized assessment is the determination of whether or not the applicant poses a demonstrable risk to other tenants or the property. Demonstrable risk is defined as “the likelihood of harm to other residents’ personal safety and/or likelihood of serious damage to property.” If a property owner finds that the applicant does prose a demonstrable risk to tenants or the property, he or she must provide a written explanation of “why denial based on criminal conviction is necessary to protect against a demonstrable risk of harm to personal safely and/or property.” This written explanation must contain a statement stating that the applicant has a right to file a complaint with the Cook County Human Rights Commission.
Two-Step Screening Process – The JHO prohibits property owners from running a criminal background check until we have first conducted our typical screening for criteria that can include employment, credit history and past evictions. Only after we have approved or denied an applicant based on these factors can we run criminal background checks as a second step in the application process.
Look back period – Federal law allows property owners to look at prior criminal history for a period of up to seven years. The current draft of the JHO limits this look-back period to just three years. Any convictions more than three years in the past may not be used to deny a housing application. (Supporters of this 3-year look-back limit point to this Justice Department study that shows that recidivism declines after three years of no additional criminal activity.)
With a basic understanding of the JHO and its legal terms, property owners can justifiably wonder about the consequences of this legislation and how it will impact our ability to make good decisions about who can and cannot live in our buildings. Here are just some of the questions the JHO raises:
- Will the JHO open property owners up to a whole new range of lawsuits from disgruntled applicants and the rapacious tenants’ lawyers who are only too happy to represent them, similar to what property owners already experience with the RLTO?
- If a tenant passes the first screen (employment, credit and past evictions), but fails the second screen (criminal background), are property owners required to reimburse application fees?
- Should property owners hire a lawyer to draft rejection letters to applicants who are denied housing due to a finding of “demonstrable risk?”
- Will the JHO discourage investors from investing in challenging neighborhoods where ex-offenders might be more likely to seek housing?
- Could property owners be sued if we rent to tenants with a criminal history beyond three years who then go on to commit crimes against other tenants or to our properties?
If there is a silver lining to the JHO, it is that any complaints arising from it will be adjudicated by the Cook County Human Rights Commission (HRC). I am told that, in Cook County last year, only six complaints were filed with the HRC, mostly having to do with sources of income violations. Furthermore, these complaints rarely turn into lawsuits. While this is somewhat reassuring, it is no guarantee that the JHO will follow a similar path once it takes effect.
I’ll go out on a limb here. After listening to hours of testimony from ex-offenders, I am sympathetic to the many good people who simply want a fair shake at getting a place to live as they try to put their lives back on track and re-integrate into society. Many of these individuals believe that housing providers have summarily denied them housing solely on the basis of past criminal convictions, even if they would otherwise qualify for an apartment.
The JHO will make blatant discrimination against ex-offenders illegal, and subject to investigation and possible legal action from the HRC. I believe property owners are safe so long as we follow the spirit of the JHO and offer applicants a fair and honest assessment. If we reject an applicant, we must provide a clear written explanation of why. In other words, we must strive to treat applicants with respect and in a professional manner.
Remember that the JHO will apply to those ex-offenders who have already made strides to re-enter society, finding employment (or securing housing vouchers) and repairing credit so that they are able to get through Step 1 of the application process. These applicants have a reasonable argument that they are worthy of further consideration for housing, and our entire society benefits from their successful re-entry into society.
Perhaps the bigger issue is what our elected officials and our society will do to focus on those ex-offenders who are not able to get through Step 1 of the application process. How can this vulnerable group qualify for safe and secure housing?
This is a challenge that goes far beyond placing restrictions on the screening practices adopted by housing providers. This problem will require money, hard work and the good will of all Cook County residents to solve. There are some terrific organizations, including this one, that focus on remedying homelessness and recidivism that many ex-offenders experience. Their work is important and warrants our support.