Rental Housing’s Elephant in the Room

The Probable Disparate Impact of Unlawful Detainer Records

Published in Washington State Bar News – July 2011
Eric Dunn & Merf Ehman

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The Probable Disparate Impact of Unlawful Detainer Records Fara thought she had secured a stable place to live for another year when she renewed the lease on her south King County apartment in July 2009. But just a few weeks later, Fara’s landlord sold the building, and the new owners, eager to make renovations, refused to honor the lease extension. By November, the dispute was headed to landlord-tenant court, where Fara’s tenancy would turn on the enforceability of the lease extension she had signed in good faith with the prior property owner. But just before the dispositive “show cause hearing,” the new owners made an offer: in exchange for her agreement to move out by December 1, the new owners would pay Fara three months’ worth of rent in cash. Fara accepted the offer.

Fara did not expect to have trouble finding a new place to rent. She and her husband had steady jobs, they had always been good tenants in the past, and they had cash to pay for background checks, deposits, and moving expenses. Within a few days, Fara had already identified several attractive properties and made appointments to see them. But Fara was stunned when her rental applications were rejected at both properties to which she eventually applied. “You have an eviction record,” the manager at the last property had told her. “It is our company policy not to rent to anyone with an eviction record.” Fara tried to explain that she had never been evicted, but to no avail. “The court records show an eviction,” the manager replied. “That’s what we go by.”

As Fara had learned the hard way, there is no civil court record more damaging to those seeking rental housing in Washington than an unlawful detainer suit (or “UD,” popularly known as “eviction”). Rental housing providers almost universally downgrade applicants who have been sued for eviction, and many reject all such applicants categorically — even if the tenant prevailed, or settled (as in Fara’s case), or if the case is many years old. Many tenant-screening firms also evaluate applicants and assign scores, ratings, or recommendations using algorithms that fail to distinguish between UDs that resulted in judgments or writs of restitution and those that did not. Consequently, the mere filing of an unlawful detainer action becomes a proxy for adverse rental history, which housing providers commonly presume indicates a likelihood of poor performance in a future tenancy, and typically dooms the application.

Indeed, few landlords even bother to obtain the information that would be necessary to take case outcomes or other circumstances into consideration. Tenant-screening companies regularly gather and report unlawful detainer records to residential landlords, usually by running name searches in the Superior Court Management Information System (SCOMIS). Other housing providers discover UDs on their own, typically by accessing and searching SCOMIS through the Washington Courts website. SCOMIS contains few details about filed cases — usually just the party names, filing date, and “case type.” SCOMIS does not contain information about the specific allegations, defenses, findings, or case dispositions, and thus such information seldom appears in professional tenantscreening reports either.

Of course, as Fara’s case indicates, not all UD records result from the tenant’s wrongdoing, and even those that do are not always reasonably predictive of future performance. The uniform treatment of applicants with UD records therefore causes some prospective tenants to be denied housing for arbitrary or unjust reasons — that is, on grounds unrelated to their fitness as residential tenants. And in all likelihood, those unfairly turned down because of UD records are disproportionately women, people of color, families with children, and people with disabilities.

Nationally, just 47 percent of African American and 50 percent of Latino families own their homes, compared with 60 percent of Asian-American and 75 percent of white families. This means people of color are more likely to be renters potentially subject to eviction proceedings. Also, 32 percent of African American households and 26 percent of Latino households have zero or negative net worth, compared with just 13 percent of white households. This disparity makes minority households much more vulnerable to eviction for non-payment of rent — far and away the most common basis upon which residential UD actions are filed — upon the loss of a job or other sudden income disruption. Gender plays a similar role. Women are more likely to be single parents, and thus require larger dwelling units with higher rent and utility burdens. Some research suggests that women are more likely to complain to government agencies about substandard housing conditions, potentially drawing the ire of their landlords. Domestic-violence victims, the vast majority of whom are women, have historically faced evictions from landlords fearing disturbances or police visits (though Washington has recently prohibited such evictions). People with disabilities must often litigate — commonly in the unlawful-detainer setting — to secure reasonable accommodations they require for equal access and enjoyment of rental housing. These considerations suggest that the use of unlawful detainer records in rental housing admissions probably causes a “disparate impact” on the basis of race, ethnicity, gender, and other protected class status.

“Disparate impact” is a theory of anti-discrimination law that prohibits “facially neutral” practices having discriminatory effects. The U.S. Supreme Court first recognized disparate impact in the 1971 case of Griggs v. Duke Power Co., which held that an employment practice that has disproportionately harsh effects on minority applicants violates Title VII unless justified by “business necessity.” A party claiming disparate impact discrimination need not demonstrate that the discrimination was intentional (although one of the most common ways to demonstrate the absence of a business necessity is by showing that less-discriminatory alternatives were ignored), only that it causes a discriminatory effect. Statistical evidence is often essential to prove that a challenged practice has a discriminatory effect.

Intuition and anecdotal evidence suggest it is likely that unlawful detainer actions are filed against racial and ethnic minorities, women, people with disabilities, and members of other protected classes at rates disproportionate to their numbers. Yet mounting effective fair-housing challenges to this practice requires reliable statistics to detect and prove such correlations. Unless and until such data are gathered, this (probably) discriminatory practice will continue unabated. For this reason, we call on Washington courts to begin tracking the race, ethnicity, gender, disability status, and other protected-class status of residential unlawful-detainer defendants. The sooner this data is assembled, the sooner it can be confirmed whether blanket exclusions of UD defendants from rental housing actually causes a disparate impact — and if so, on whom.

We offer two reasons why Washington courts should begin collecting demographic data regarding unlawful detainer defendants. First, eradicating unfair discrimination is an important public policy of this state. Second, fair housing law offers the most promising approach for limiting the reflexive and indiscriminate denial of rental housing on the basis of UD records, a practice that threatens the integrity of our landlord-tenant courts altogether.

It is long established in the employment context that the use of judicial records, especially criminal records, can cause a disparate impact on certain racial and ethnic groups. Just four years after Duke Power, the U. S. Court of Appeals for the Eighth Circuit ruled in Green v. Missouri Pacific Railroad that an employer could not, consistent with Title VII, categorically deny employment to applicants with prior criminal convictions because of the disparate impact such a policy would have on African Americans (who, at that time, were between 2.2 and 6.7 times more likely to be convicted of a criminal offense than whites). An applicant’s criminal history could be considered, but, Green held, “[t]o deny job opportunities to these individuals because of some conduct which may be remote in time or does not significantly bear upon the particular job requirements is an unnecessarily harsh and unjust burden.”

Drawing on Green and similar cases, in 1982 the U.S. Equal Employment Opportunity Commission (EEOC) issued an official “Policy Statement on the Issue of Conviction Records under Title VII,” which established nationwide guidelines for the use of criminal records in hiring. The EEOC policy statement cautioned employers throughout the United States not to reject job applicants based on criminal records unrelated, or only tenuously connected, to the work involved. To justifiably reject a job applicant based on a criminal record, the EEOC policy statement warned, an employer must demonstrate the relationship between job requirements and the criminal record by empirical evidence rather than just a “common sense based” assertion.

Fair housing statutes are interpreted in substantially the same manner as employment discrimination laws. But the federal agency responsible for enforcing the Fair Housing Act (U.S. Department of Housing & Urban Development) has issued no policy statement advising private housing providers on the use of criminal, eviction, or other judicial records, as the EEOC has done for employment screening. Possibly for this lack of administrative guidance, rental admissions policies categorically or arbitrarily excluding applicants with UD or criminal records appear with some frequency in Washington, even though such blanket exclusions are, at minimum, highly suspect under Green and its progeny.

Criminal background checks, like UD records, are a regular fixture in tenantscreening reports, and often cause ex-offenders unjust difficulty in obtaining rental housing despite settled fair housing protections. But the ready availability of salient and up-to-date statistical evidence makes claims for discriminatory rental rejections based on criminal records comparatively feasible. The same is not true of UD records, however, because demographic information on unlawful detainer suits is not similarly tracked.

Should the categorical rejection of rental applicants with UD records be proven to cause discriminatory effects on one or more protected classes, a residential landlord would be hard-pressed to defend such a policy as a business necessity. Unlike conviction records — which criminal defendants acquire only upon pleading guilty or being adjudged guilty by a court — a record of being sued for unlawful detainer does not even establish that the applicant performed poorly in the prior tenancy. Most eviction suits are settled without any judicial determination of liability ever being made. Of the cases that do reach judicial adjudication, some are decided in favor of landlords and some in favor of tenants. While housing providers may derive some measure of efficiency in not attempting to distinguish between defendants who were actually “evicted” and those who were not, there is no business necessity for excluding applicants belonging to the latter group.

Housing providers who categorically reject applicants with UD records commonly respond that the mere filing of a UD is reliable evidence of poor rental history irrespective of the outcome, since few landlords would incur legal costs and the associated burdens of litigation except to remove a truly intolerable tenant. Others argue that tenants often prevail in UD suits only because of procedural “technicalities,” i.e., avoiding eviction despite actual guilt. These arguments are not completely without merit, though plenty of housing providers will proceed to court with little or no effort at pre-litigation resolution, and one person’s “technicality” is another’s substantive defense. But at most, these contentions merely establish that the denial of a rental application based on a dismissed UD may sometimes be justified, not that the blanket rejection of all such applicants is always justified.

Indeed, unlawful detainer cases are sometimes filed against tenants who have fulfilled the terms of their rental agreements and done nothing to warrant eviction. Common examples include tenants who face eviction in retaliation for requesting repairs, complaining to code inspectors, or calling the police; tenants who are sued for unlawful detainer after the rental property is foreclosed; or tenants who are sued for nonpayment of rent based on sums they do not owe, whether because of accounting errors, unlawful charges, etc. Cases of this nature are frequently brought by pro se landlords unaware of or indifferent to the tenant’s legal protections, and such cases are often dismissed on technical grounds because of the landlord’s noncompliance with nuances of civil procedure. Other times, inappropriate cases are voluntarily dismissed or settled by agreement when the landlord obtains counsel or when new facts are brought to the landlord’s attention.

Once filed, an unlawful detainer case record is permanent. There is no way, even by stipulation, to eliminate a UD record. In some instances, a UD record can be sealed or the tenant’s name redacted from SCOMIS, but only temporarily. Even while a UD record is sealed, no statute — unlike with conviction records — authorizes the tenant to deny the suit’s existence on a rental application. A related concern is that unlawful detainer actions are usually filed against entire households, meaning one person’s UD record may actually relate to alleged acts or omissions of others (i.e., people in the household, who may not necessarily be joining the prospective new household).

Even where a UD record reflects a case in which the applicant was truly culpable, the importance of changed circumstances is significant. Most eviction suits are based on non-payment of rent resulting from financial hardship rather than malicious or anti-social behavior. If the economic reasons (such as a lost job, medical problem, divorce, or other income disruption) that led to the prior eviction no longer exist, then the predictive value of the past UD may be substantially diminished. And even a tenant evicted for genuinely wrongful or irresponsible behavior may have reformed, just as a person with a criminal record may have done.

Since a business-necessity defense would not be plausible, it follows that rental admissions policies categorically excluding applicants with UD records violate the Fair Housing Act (and analogous laws, such as Washington’s Law Against Discrimination) if unlawful detainer suits are filed more often against people of color, women, people with disabilities, or other minorities. The probability of such correlations appears so great that our courts cannot responsibly fail to investigate it.

The reflexive denial of rental applicants with UD records also presents an access to justice problem. Residential tenants are becoming increasingly aware of the fact that a UD record often effectively blacklists the tenant from future housing opportunities. Such tenants often find that preserving their future rental prospects is more important than defending one particular tenancy — a calculation that leads many tenants to vacate rental properties rather than litigate meritorious cases against their landlords. This chilling effect tends to undermine the very legitimacy of the tribunal itself.

Ensuring that tenants and landlords have equal access to the judicial system is as much, if not more, of a concern to Washington’s courts as eliminating unfair discrimination. Demographic data about UD defendants is likely to reveal which tenants are still appearing to contest unlawful detainer suits and which are not, as well as identify any patterns or trends concerning those respective groups. Obtaining this data is an important first step in understanding and ultimately addressing this substantial access to justice problem.

It is not immediately clear how this information should be collected, and we appreciate the reluctance of policymakers to launch new programs of any kind in today’s trying budgetary environment. Yet we believe this data must be gathered, and we believe it can be gathered in an efficient and low-cost manner. Some possible methods include: requiring an unlawful detainer plaintiff to submit a demographic information sheet to the court at the time of filing a complaint (similar to a form already used by some county sheriff ’s departments in eviction proceedings), asking UD defendants to fill out a brief questionnaire when they check in with the court, conducting polls or studies using a representative subset of case filings, and requiring sheriff ’s deputies or process servers to ascertain certain information about UD defendants when serving legal process or executing the court’s orders. Any costs, though probably negligible, could be funded through a small increase in UD filing fees or similar means.

However the data is collected, if reliable empirical statistics bear out what has been demonstrated in other states about the connection between eviction and race, ethnicity, and gender, then swift action should ensue. Such action could entail the issuance, by the Washington State Human Rights Commission, of guidance concerning the use of unlawful detainer records for tenant-screening much like the EEOC guidance for criminal records for employment screening. Such guidance should direct residential landlords not to reject applicants on the basis of UD records except on a case-by case basis where the eviction is related to the obligations of tenancy, and with the specific facts and evidence of changed circumstances taken into consideration. Though a landlord’s failure to comply with such guidance should constitute prima facie evidence of unlawful discrimination under Washington’s own fair housing law, RCW 49.60.222, we expect that most housing providers would accept such guidance and adjust their policies accordingly.

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