April 14, 2023

The United States Court of Appeals for the Ninth Circuit recently overturned part of Seattle’s Fair Chance Housing ordinance. This decision came after a federal judge deemed it unconstitutional. According to the judge, it violated free speech protections.

The city council initially passed this provision to reduce barriers for people of color with criminal histories. From 2017 on, this provision banned landlords from asking about an applicant’s criminal history. This ban prevented landlords from using criminal history to deny potential tenants. As a result, more housing opportunities opened up for people with criminal records.

Furthermore, the provision affected how landlords advertised for openings. For example, the ads could imply exclusion for anyone with a criminal record. The ordinance also prevented landlords from asking about a person’s criminal history during the application process. However, the regulation allowed a few exceptions based on circumstances. For example, landlords could refuse to rent to sex offenders. Another exception allowed landlords more discretion when choosing tenants who would share the home with them.

In a lawsuit in 2018, landlords fought for their right to free speech and to ask questions that could protect their tenants’ safety. As such, the U.S. Court of Appeals announced its decision to overturn this section of the Fair Chance Housing ordinance. Removing this language from the law could affect protections in the rental process for people with criminal records.

However, impacted individuals would retain certain protections through the Washington Law Against Discrimination (WLAD). This law allows landlords to ask about criminal history. However, it maintains that landlords cannot deny housing based on an applicant’s criminal record. Accordingly, the WLAD would prevent landlords from denying anyone who falls under any of the following categories:

“[E]very condition, restriction, or prohibition, including a right of entry or possibility of reverter, which directly or indirectly limits the use or occupancy of real property on the basis of race, creed, color, sex, national origin, citizenship or immigration status, sexual orientation, families with children status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person who is blind, deaf, or physically disabled is void.”

Unfortunately, this law does not provide the same protections as the Fair Housing Act. However, it will still protect you if you have a criminal record, stopping landlords from denying your application based on this detail. In addition, should you feel discriminated against by a landlord, you can file a complaint with the state’s Human Rights Commission.

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