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Tenant Screener Can Be Liable Under FHA, Feds Tell 2nd Circ.


November 28, 2023

A Connecticut federal court was wrong to rule that a tenant background screening company cannot violate the federal Fair Housing Act based on a finding that it does not make rental decisions, the United States has argued in an amicus brief to the Second Circuit.

The federal government waded into a legal battle Friday between a Connecticut nonprofit and CoreLogic Rental Property Solutions LLC, which in July won a bench trial that targeted the company’s criminal-history-reporting practices. The government brief does not explicitly argue that the Connecticut Fair Housing Center and two co-plaintiffs should have won in the lower court but asks the appellate court to remand the case with instructions for reconsidering whether CoreLogic’s actions create liability under the Fair Housing Act.

“While CoreLogic’s inability to control the landlord’s final decision is certainly relevant in evaluating causation, it should not be determinative,” the brief said. “Rather, if CoreLogic’s actions cause or predictably will cause a significant disparate impact on the racial makeup of a property, then that should be enough.”

U.S. District Judge Vanessa L. Bryant’s July 20 decision in the District of Connecticut rejected most of the claims connected to Mikhail Arroyo’s criminal history report, which CoreLogic furnished to a property manager that ultimately denied his application to move in with his mother, Carmen Arroyo, in Willimantic. Court filings show that Mikhail Arroyo was involved in an accident in 2015 that left him unable to care for himself and his mother is his conservator.

The ruling held that CoreLogic is not subject to the FHA because it does not make housing unavailable or deny applications, turning away allegations that the company’s reports create a disparate impact on Black and Latino applicants.

The government’s brief said Section 3604(a) of the FHA, which bans discrimination against protected classes in housing decisions, “makes clear that an entity can be held liable for violating the FHA even if that entity does not have the power to make the ultimate housing decision.”

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Arroyo and the Connecticut Fair Housing Center are represented by Christine E. Webber of Cohen Milstein Sellers & Toll PLLC, Greg Kirschner of the Connecticut Fair Housing Center and Eric Dunn of the National Housing Law Project.

Read Tenant Screener Can Be Liable Under FHA, Feds Tell 2nd Circ.