Many states and localities have enacted laws that prohibit housing discrimination against people based on improper criteria such as age, race, sex or national origin. The federal Fair Housing Act (discussed in detail in Package Four [Michelle, please link to Package four.] also protects against housing discrimination. It appears, though, that other than a law in Madison, Wisconsin, these laws do not prohibit discrimination against people with conviction records. This portion of the kit provides information to help advocates who would like to craft a law that prohibits housing discrimination against people with criminal records, including:

• Basic Provisions of the Madison, Wisconsin Law

• Model Housing Legislation

The Madison, Wisconsin Law

The law in Madison, Wisconsin provides an example of forward-thinking legislation that balances the housing needs of persons with arrest or criminal conviction records and the safety concerns of other citizens. The law applies to any landlord, private or public. Click here [hyperlink] to see the full text of the ordinance.

The Madison law provides that:

• It is unfair discrimination to refuse housing to a person because of an arrest or conviction record unless the circumstances of the offense bear a substantial relationship to tenancy.
  
  
• Even if the landlord deter.mines that the conviction bears a substantial relationship to tenancy, if two years have passed since the applicant was placed on probation, paroled or released then the landlord cannot discriminate against the person for having a conviction record.
  
  
• A landlord must keep records to show his or her compliance with this law, including having a uniform inquiry process and allowing appeals of decisions.

Model Housing Legislation

The Legal Action Center has adapted the ordinance in Madison, Wisconsin by changing and adding a few parts to create a model statute that advocates can promote around the country:

Model Policy

1. It shall be considered an unfair discriminatory practice, unlawful, and hereby prohibited for any person having the right of ownership or possession of the right of transfer, sale, rental or lease of any housing, or the agent of such a person:
   
   
   1. To refuse to transfer, sell, rent or lease, to refuse to negotiate for the sale, lease, or rental or otherwise to make unavailable, deny or withhold from any person any housing because of an arrest record or conviction record; or
      
      
   2. To falsely represent that a dwelling is not available for inspection, sale, or rental because of discrimination related to an arrest or conviction record; or
      
      
   3. To discriminate against any person because of an arrest or conviction record in the terms, conditions or privileges pertaining to the transfer, sale, rental or lease of any housing or in the furnishing of facilities or services in connection therewith, or in any manner. This ordinance does not apply, however, to any person’s decision to share occupancy of a lodging room, apartment or dwelling unit with another person or persons.
      
      
      1. Exclusions for certain convictions. This ordinance does not prohibit eviction or refusal to rent or lease residential property because of the conviction record of the tenant or applicant or member of the tenant or applicant’s household, if the circumstances of the offense bear a “substantial relationship” to tenancy – i.e. if the offense is one that, given the nature of the housing, a reasonable person would have a justifiable fear for the safety of the landlord or tenant property or for the safety of other residents or employees. Provided that the circumstances of the offense bear a substantial relationship to tenancy, such offenses may include but are not limited to the following:
         
         
         1. at least two or more misdemeanor drug-related convictions related to the manufacture, delivery or sale of a controlled substance or any drug-related felonious criminal activity;
            
            
         2. criminal activity involving violence to persons such as murder, child abuse, sexual assault, battery, aggravated assault, assault with a deadly weapon;
            
            
         3. criminal activity involving violence to or destruction of property, such as arson, vandalism, theft, burglary, criminal trespass to a dwelling;
            
            
      2. Time Limits on Exclusions. The exclusion for certain convictions shall not apply if more than two (2) years have elapsed since the applicant or member of the tenant’s or applicant’s household was placed on probation, paroled, released from incarceration or paid a fine for offenses set forth in paragraph (i) unless the offense is one which must be reported under the sex offender reporting requirement of [relevant state law.]
         
         
      3. Mandatory Recordkeeping Procedures. Notwithstanding the provisions contained in Paragraph (i), a person may not refuse to rent or lease residential property because of a conviction record of the applicant or a member of the applicant’s household unless the person complies with all of the following:
         
         
         1. uses a written, uniform inquiry process, established for legitimate non-discriminatory business reasons;
            
         2. applies such process uniformly;
            
         3. advises applicants in writing at the time of denial, if refusal to rent is based in whole or in part on the conviction record of the applicant or a member of the applicant’s household;
            
         4. keeps all applications, whether accepted or rejected, for at least two (2) years from the date of decision, along with a record of reasons for rejection, recorded in a uniform manner;
            
         5. in the event a formal complaint of discrimination is made to the [state Human Rights Commission], the landlord shall make available for inspection and permit the [state Human Rights Commission] or designee to inspect during normal business house all documents identified in subparagraphs (1) through (4) above. The [state Human Rights Commission] Director or designee shall promptly conduct such inspection for the sole purpose of determining compliance with this subsection on conviction records. Any person who fails or refuses to allow such inspection(s) or who fails to maintain or retain required records shall be in violation of this ordinance.
            
         6. This paragraph is not intended to prohibit or restrict a current or new owner of property from instituting a conviction record screening policy at any time during his/her ownership of a property so long as it is applied uniformly to all similarly situated individuals and otherwise complies with this subsection.
            
         7. This paragraph is not intended to impose liability on a new owner of a property for actions or omissions of the former owner related to this paragraph, except to the extent the new owner continues the practice under his/her ownership.
            
            
      4. Notwithstanding the provisions contained in paragraph (i), a person may not evict a tenant or refuse to lease residential property based on the fact that a tenant or member of the prospective tenant’s household has been or may be the victim of domestic abuse, as defined in [state statute X], or has been a victim of a crime prohibited by [state statute Y.]
         
         
   4. For any bank, union, credit union, financial company, savings and loan association, insurance company or other corporation, association, firm or enterprise whose business consists in whole or in part in lending or purchasing of loans, to discriminate against a person because of the arrest or conviction record of the person or any person associated with them, or the present or prospective owners, lessees, tenants or occupants of the housing for which the loan is made by doing any of the following:
      
      
   1. denying a loan or other financial assistance to a person applying therefor for the purpose of purchasing, constructing, improving, repairing, or maintaining any housing, or denying a loan secured by the person’s home,
      
   2. discriminating against such person in the fixing of the amount, interest rate, duration, or other terms or conditions of such loan or other financial assistance, or
      
   3. refusing to purchase or to discriminate in the purchase of such loan.

Nothing in this Ordinance shall prohibit a prospective creditor from obtaining a consumer report regarding an applicant if otherwise allowed by law and if the report is obtained and used as otherwise allowed by law.

5. For any person to post, print, broadcast or publish or cause to be posted, printed broadcast or published, any notice or advertisement relating to the transfer, sale, rental or lease of any housing which expresses preference, limitation, specifications or discrimination as to an arrest or conviction record.
   
   
6. For any person, for profit, to induce or attempt to induce a person to sell or rent a dwelling by representations regarding the entry or perspective entry into the neighborhood of a person or persons with an arrest or conviction record. In establishing a discriminatory housing practice under this section, it is not necessary that there was in fact profit as long as profit was a factor for engaging in the blockbusting activity.
   
   
7. For any person to deny any person access to or membership or participation in any multiple listing service, real estate brokers’ organization or other service organization or facility relating to the business of buying or renting dwellings, or to discriminate against any person in the terms or conditions of such access, membership or participation on account of any arrest or conviction record.
   
   
8. For any person or other entity whose business includes engaging in residential real estate related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction because of an arrest or conviction record. As used in this subdivision, the term “residential real estate related transaction” means any of the following:
   
   
   1. The making or purchasing of loans or providing other financial assistance
      
      
      1. for purchasing, constructing, improving, repairing or maintaining a dwelling, or
         
      2. secured by residential real estate.
         
         
   2. The selling, brokering, or appraising of residential real property.
      
      
9. In this subsection, prohibited discrimination includes discrimination because of an arrest or conviction record of:
   
   
   1. The buyer, renter or applicant, or
      
   2. A person residing in or intending to reside in a dwelling after it is sold, rented and made available.

10. It is the intention of the State that this subsection be interpreted consistently with Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 – 3619), as amended, and with regulations applicable thereto (24 CFR Parts 100, 103, 109, 110, 115 and 121) except where the language of this subsection clearly requires a different interpretation, and consistently with applicable state laws.