Excerpted From: Yvette N.A. Pappoe, The Scarlet Letter “E”: How Tenancy Screening Policies Exacerbate Housing Inequity for Evicted Black Women, 103 Boston University Law Review 269 (February 2023) (284 Footnotes) (Full Document)


yvettepappoeIn 2012, Nikita Smith's landlord filed an eviction case against her for failure to pay rent. Smith then “entered into a payment plan [agreement] with [her] landlord ... and paid off the landlord's claim in full.” As a result, Smith was never evicted. Approximately two years later, Renton Housing Authority (“RHA”) issued Smith a Housing Choice Voucher. The voucher would allow Smith to rent an apartment and pay thirty percent of her income in rent and utilities each month while RHA would be responsible for paying the remaining amount directly to her landlord. To make use of the voucher, Smith began searching for apartments, which led her to Wasatch Hills Apartment Homes. While touring Wasatch Hills, Smith disclosed that she had previously been named in an eviction suit to a Wasatch Hills representative. The representative notified Smith that the eviction suit would preclude her from being admitted or even considered as a potential tenant. Wasatch Hills would not consider any explanation and instead informed Smith that her application would be denied regardless of the basis or outcome of the eviction suit. Ultimately, Smith was denied the opportunity to live at Wasatch Hills. She sued.

Unfortunately, Smith's story is neither isolated nor unique. Similar policies and practices implemented by landlords across the country prevent tenants with eviction filings on their records from seeking and acquiring public and private housing. Like Smith, the mere existence of a prior eviction filing-- even in cases that did not result in a final judgment against the tenant--is enough to prevent tenants from accessing other housing opportunities, whether private or public. Landlords' overreliance on these incomplete and often erroneous tenant screening reports, generated by tenant screening companies for profit, drapes tenants who have had evictions filed against them with a “Scarlet Letter E”: a badge of shame and stigma that effectively deems the tenant unworthy of housing.

Smith's experience exemplifies the cycle of poverty and homelessness that is perpetuated when people with an eviction filing on their record are denied access to private or public housing facilities. Black and Latinx people bear the brunt of the millions of evictions that are filed each year in the United States. Eighty percent of people facing eviction identify as non-white, with Black women facing eviction at disproportionately high rates. From 2012 to 2016, Black women were evicted three times as often as white women and thirty-seven percent more often than Black men. The ACLU Women's Rights Project and Data Analytics team found that, on average, Black women renters had evictions filed against them by landlords at double the rate of white renters or higher in seventeen out of thirty-six states. The COVID-19 pandemic worsened historic racial inequities in housing security and disproportionately affected renter households, which are primarily headed by Black women. At the height of the pandemic, landlords filed more evictions against Black women than against Black men. A study from the National Women's Law Center found that Black women have been twice as likely to be behind on rent as white renters during the pandemic, putting them at increased risk for homelessness.

Why are Black women more vulnerable to evictions than any other group? Black women are often the heads of households in their families, which means that they spend more of their income on household expenses like rent than other groups do. As a result, Black women tend to be more cost-burdened than other groups. As the heads of households, Black women also tend to be named leaseholders for rental properties. Additionally, the race and gender wage gap contributes to the lack of income to cover critical expenses.

Landlords have fully embraced the availability of background information on prospective tenants. While tenant screening reports could arguably aid landlords in determining which tenants are more likely to miss rent, the widespread adoption of tenant screening policies and practices related to a potential tenant's eviction records is highly problematic. One major concern that arises with the increased adoption of these reports is the disparate impact that it has on Black women, who, as explained below, are disproportionately evicted and therefore more likely to be disqualified from housing options under this practice. Additionally, as Smith's story illustrates, the degree of accuracy of these reports on evictions is questionable and has dire consequences.

The disparate impact of policies and practices barring Black and Brown male applicants from housing based on criminal records is well documented. Many scholars, housing advocates, and government agencies have recognized that blanket policies denying housing to individuals with criminal records disparately impact these protected classes and thus violate various antidiscrimination statutes. This Article is the first to argue that blanket tenant screening practices and policies that deny prospective applicants based on eviction records disparately impact Black women, and, therefore, violate the Fair Housing Act (“FHA”). It proceeds in four parts. Part I begins with an explanation of evictions, generally, outlines the tenant screening process and its problems, and demonstrates how evictions disproportionately impact Black women. Eviction is associated with many harms to tenants and falls within two main categories: (1) harms having to do with the acute crisis of removal from one's home and (2) long-term harms having to do with the Scarlet Letter E that an eviction filing alone leaves on a tenant's rental history, which prevents the tenant from accessing housing later. This Article focuses on the latter. Part II then provides an overview of the FHA, outlining its purpose and explaining two types of housing discrimination claims--disparate treatment and disparate impact. It also offers an interpretative framework to hold both landlords and the tenant screening companies they hire liable under section 3604 of the FHA for the disparate impact that blanket tenant screening policies and practices have on Black women. Part III argues that blanket tenant screening policies and practices are artificial, arbitrary, and unnecessary barriers to housing that invidiously discriminate against Black women, and therefore violate the FHA. Part IV suggests possible proposals, drawing a parallel between expungement, records sealing, and “ban the box” laws for criminal records and the civil eviction context that could lessen the disparate impact of blanket tenant screening policies.

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Since the passage of Title VIII, HUD has made considerable progress in reducing racial discrimination in housing. Despite such progress, however, housing discrimination based on race and sex persists, as demonstrated by the current eviction crisis. The disparate impact that blanket tenant screening policies have on Black women has gone unnoticed for far too long. This Article sheds light on that disparate impact and proposes solutions to address it. Building on the incredible work to eliminate or reduce reliance on the use of criminal arrest and conviction records in housing and employment decisions, federal agencies like the FTC and CFPB and states should require fair tenant screening practices that encourage scrutiny of the use of eviction records. States should also consider passing laws that limit landlords' access to prospective tenants' eviction records, like eviction sealing and expungement laws, as well as ban-the-box-type laws that preclude access to such records at the initial application stage. HUD can assist courts by issuing additional guidance that addresses the use of eviction records in housing decisions that track its guidance on the use of criminal arrests and convictions. It is time for HUD, the courts, and federal and state laws to uphold the spirit of the FHA and root out artificial, arbitrary, and unnecessary policies and practices barriers to housing that invidiously discriminate on the basis of racial or other impermissible classifications.

Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law.