In April 2019, the Cook County Commissioners approved a Just Housing Amendment (JHA). The intent of the ordinance is very clear: prevent housing discrimination among persons with a criminal background. JHA was immediately added to the Human Rights section of Cook County’s municipal law, effective six months later. During those six months, the complexity of this Amendment became clear, as did various aspects that needed further review. As a result, the Commissioners delayed the effective date to December 31, 2019 and further delayed enforcement until January 31, 2020.
In October 2019, CAR and Illinois REALTORS® engaged in a Call to Action to urge members to contact their Commissioner in opposition to the proposed rules. Following the Call for Action, we were able to successfully remove any language requiring landlords to hold a unit vacant during a criminal background dispute.
Any landlord or property management company in Cook County that conducts tenant screening will need to incorporate the new JHA procedure. There is a two-step tenant screening process that must be followed:
If a person has a criminal history that might warrant a denial of a rental unit, housing providers must conduct and document an Individualized Assessment for that applicant. The Assessment can take several factors into account, such as the nature and severity of the criminal offense and how recently it occurred, the number of applicant’s criminal convictions, length of time the criminal offense occurred, evidence of rehabilitation, etc.
If a denial for housing based on a criminal background occurs, the provider must give the applicant an opportunity to dispute a denial by providing evidence to counter any criminal history discovered in the criminal background check. The applicant will have five (5) business days to provide evidence disputing any information that warranted the denial.
CAR strongly opposes discrimination in housing. All REALTORS® pledge to live by the National Association of REALTORS® (NAR) code of ethics which states, “REALTORS® shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. “
While the JHA intent is understood, the complexity of tenant screening already exists. Landlords must follow local, state and federal rules and regulations. The JHA is adding layers to the regulations already in place.
CAR opposes the two-step process for tenant screening by landlords. Landlords and housing providers will have a difficult time forcing background screening companies to follow Cook County laws. Many of these screening companies are located throughout the United States. The onus of JHA falls entirely on property managers and/or landlords when they receive all the information regarding an applicant for housing.
CAR further opposes any holding period of a rental unit if an applicant is denied housing. Not only is this unheard of in any other jurisdiction, but this also places additional risks to the housing provider as another applicant seeking housing may be a protected class.
In 2016, HUD released the “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions.” According to the guidance document, “a housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate.”
Accordingly, NAR’s Legal Affairs Department provided the Do’s and Don’ts for REALTORS®. Included in the Do’s, NAR recommended that that housing providers conduct an individualized assessment to account for mitigating factors of applicants such as circumstances surrounding the criminal conduct, age at the time of the conduct, evidence of good tenancy conduct and rehabilitative efforts.
Any landlord or housing provider in Cook County will have to follow the JHA rules starting on January 1, 2020. It is critically important that rules are understood and followed to reduce the risk of any penalties.
On November 21, the Cook County Board adopted a set of rules that will take effect on December 31, 2019.
The County passed legislation that would also require the Human Rights Commission to produce quarterly reports of the implementation of the JHA.
On December 19, the County adopted a delay of enforcement for JHA until January 31, 2020. This would allow more time for the housing industry to plan and prepare for the JHA. Although the Human Rights Commission has not produced any guidance for housing providers (as of December 19), the delay also provides time for the County to produce educational materials for the industry.
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