INTRODUCTION
In an effort to confront the various forms of social dislocation generated by rising income inequality and a diminished social safety net, some American cities have become laboratories of progressive policy making (Berube Reference Berube2013; Lowrey Reference Lowrey2014; Miller Reference Miller2016). The pressing imperative to address housing unaffordability and insecurity in an era of dwindling federal support for social services has played an important role in compelling municipal governments, which lack the benefit of major redistributive policy levers, to find new ways to regulate private markets. One variety of regulatory innovation has involved repurposing antidiscrimination laws to combat socioeconomic exclusion on the bases of status characteristics including source of income, credit history, and criminal records (Johnson Reference Johnson2016). The recent diffusion of these policies reflects rising awareness of the social problems generated by the unprecedented visibility and immutability of discrediting background information, such as the prisoner reentry crisis, and recognition that such status characteristics often function as proxies for classes protected under federal nondiscrimination laws.
However, a rich body of empirical sociolegal scholarship has cast doubt on the capacity of antidiscrimination law to meaningfully transform stratification regimes and illuminated the practical challenges associated with regulating discretion. Nowhere is the gulf between the aspirations and outcomes of civil rights law greater than in the case of housing (Pedriana and Stryker Reference Pedriana and Stryker2017). Fair housing laws have been particularly ineffective in curbing discrimination in the rental housing market (National Fair Housing Alliance 2017), in part owing to the acute challenges associated with regulating the idiosyncratic and largely unseen decision-making processes of millions of independent landlords, who have traditionally controlled access to the bulk of the nation’s rental housing stock (Schwemm Reference Schwemm2006). Over fifty years since the passage of the Fair Housing Act (FHA) (1968),Footnote 1 rental housing remains a decentralized industry in which landlord practices go largely unobserved (Desmond and Bell Reference Desmond and Bell2015; US Census Bureau 2015b). At the same time, a burgeoning sociological literature has brought attention to the importance of landlord behavior in shaping patterns of urban disadvantage, precarity, and inequality at a time when American renters devote unprecedented proportions of their incomes to rent and the provision of affordable housing has been devolved almost entirely to the private rental market (Rosen Reference Rosen2014; Desmond Reference Desmond2016; Garboden et al. Reference Garboden, Rosen, Greif, DeLuca and Edin2018).
Accounts of antidiscrimination law’s deficiencies in the housing realm have largely focused on the weaknesses of the law itself and its enforcement regime. Meanwhile, little if any scholarship has interrogated what the broader context in which landlords operate means for the ability of government to reshape landlord practices using fair housing law. This article examines how that broader social context shapes the interplay between law and the social groups it is designed to regulate and protect. I draw on a case study of tenant screening practices in Seattle, Washington, where policy makers have been on the forefront of legal efforts to regulate how landlords screen and select rental applicants in the face of an acute housing crisis. I use the case study as a window into the challenges that the distinct legal, institutional, and economic features of the contemporary rental housing market pose for a new generation of fair housing law.
Seattle is emblematic of both progressive policy innovation at the city level and the social conditions that motivate such innovation. In recent years, the Emerald City has distinguished itself as a leader on policy issues such as minimum wage, paid sick leave, and legal protections for tenants. During the same period, the city has also led the nation in rising income inequality, rental unaffordability, and homelessness (Rosenberg Reference Rosenberg2016; Balk Reference Balk2014, Reference Balk2017; Greenstone Reference Greenstone2018). As part of a larger policy effort to tackle the local housing crisis, the city government enacted two tenant screening regulations in 2016 and 2017 to fight discrimination on the basis of income source and criminal history: the “First-in-Time” amendment (2016) to the city’s Open Housing Ordinance (1968), which requires landlords to rent to the first person to apply who meets their eligibility criteria, and the Fair Chance Housing Ordinance (2017), which prohibits landlords from evaluating rental applicants on the basis of criminal history information in most circumstances.
This study constructs a ground-level descriptive picture of tenant screening from the divergent perspectives of the targets and intended beneficiaries of two new fair housing regulations in Seattle, using forty-six in-depth interviews with spokespersons or experts from the rental housing industry, independent landlords and property managers, and renters with criminal, eviction, and/or damaged credit histories conducted during the lead-up to the passage of these laws. Each of these three groups offer distinct insights into how landlords exercise discretion when evaluating and choosing prospective tenants, how the broader economic and policy environment shapes tenant screening and selection practices, and how those practices might be jeopardized, transformed, or unchanged by new fair housing laws. The findings suggest that discretion is not merely an indeterminate vector for either the discriminatory or merciful impulses of decision makers (thus leading to unpredictable results when lawmakers try to control it) but is conditioned in important ways by the political and economic context in which decision makers operate. For contemporary landlords, this context is a “landlord’s market” in which large pools of rental applicants compete for a dwindling supply of private market housing opportunities, decision-making is subjective and opaque in a decentralized industry, and fair housing laws have imposed few meaningful restrictions on how landlords select tenants. This case study illuminates how the landlord’s market in Seattle amplifies the power imbalance that is characteristic of landlord-tenant relations, exacerbates the housing access problems posed by the proliferation of background checks, and frustrates new legal efforts to dismantle screening-related barriers to rental housing.
Before turning to the study’s data, methods, and findings, I review sociolegal scholarship on antidiscrimination law in action (Calavita Reference Calavita2010), which has largely focused on employment. I highlight lessons from this literature regarding the indeterminate effects of legal efforts to advance equity by limiting the discretionary powers of institutional actors with the capacity to discriminate. Turning to the housing context, I detail the adoption of more information-intense screening procedures in the private rental housing industry, the implications of those procedures for housing access and discrimination, and the recent proliferation of regulations designed to curb background screening practices with discriminatory impacts. Finally, I discuss potential implications of the distinct economic, institutional, and legal features of the contemporary rental housing market for renewed efforts to combat housing inequality using antidiscrimination law.
ANTIDISCRIMINATION LAW IN PRACTICE: THE CHALLENGES OF REGULATING DISCRETION
Sociolegal scholars have devoted considerable energy to interrogating the gap between the aspirations and accomplishments of civil rights legislation. Critical legal and race scholars have long questioned the capacity of American antidiscrimination law to effectively sanction discrimination and meaningfully improve racial and/or gender equity in outcomes or opportunities (Bell Reference Bell1973; Freeman Reference Freeman1978; Crenshaw Reference Crenshaw1989). Early critiques focused largely on the law per se—particularly, the narrow, individualistic conception of discrimination and intent-based liability standards embedded in many civil rights statutes—as well as the meager, largely victim-complaint-driven enforcement regimes associated with antidiscrimination laws.
Empirical research on antidiscrimination law in practice in the workplace has deepened those critiques by studying how employers understand, respond to, and, in turn, give meaning to the law’s often ambiguous mandates. Discretion figures prominently in sociolegal work on antidiscrimination law in action, which has illuminated the limits and indeterminate consequences of policies designed to impose constraints on the decision-making powers of those in a position to discriminate. Following the Civil Rights Act (1964), employers experimented with a variety of strategies to comply with the ambiguous mandates of Title VII’s prohibition on workplace discrimination (Edelman Reference Edelman1992). Nonetheless, limiting the discretion of managers (or at least its appearance) has long been a central organizational strategy to signal Title VII compliance given taken-for-granted assumptions that discretion increases opportunities for the expression of bias or cronyism and that bureaucratic restraints on managerial decision-making power enhance fairness and meritocracy (Dobbin, Schrage, and Kalev Reference Dobbin, Schrage and Kalev2015). Lauren Edelman (Reference Edelman1992) and Alexandra Kalev and Frank Dobbin (Reference Kalev and Dobbin2006) show that employers took steps to minimize the appearance of excessive discretion in the decades following the Civil Rights Act by creating human resources departments and formalizing hiring and promotion practices, reforms that at times meaningfully improved racial equity in hiring outcomes but, in other contexts, amounted to little more than what Edelman (Reference Edelman1992, 1568) refers to as equal opportunity “window dressing.”
More recent studies have found that policies restricting managerial discretion have either no effect on (Ferguson Reference Ferguson2015) or negatively impacted hiring and promotion outcomes for underrepresented workers (Dobbin, Schrage, and Kalev Reference Dobbin, Schrage and Kalev2015). Research on the effects of workplace antidiscrimination policies also demonstrates that negative proscriptions on informal or subjective forms of managerial decision-making were far less effective than “effects-based” policies like affirmative action that imposed clear, unambiguous positive obligations on employers (see Pedriana and Stryker Reference Pedriana and Stryker2017, 114–15). The lessons that this literature offers regarding legal efforts to control individual decision-making are particularly relevant for thinking about the effects of new fair housing laws. As the next section details, urban policy makers in recent years have sought to address the housing access and equity problems associated with modern background screening practices by regulating how landlords screen and select applicants. New antidiscrimination regulations on tenant screening embody many of the weaknesses of workplace antidiscrimination laws identified by sociolegal scholars, particularly in their focus on transforming the decision-making procedures of individual housing providers rather than the outcomes of tenant screening and selection practices.
Drawing insights from this body of literature would thus suggest that renewed legal efforts to regulate tenant screening will fail to meaningfully improve housing outcomes for renters with stigmatizing background records, in part due to the indeterminate and/or counterproductive effects of legal controls on discretion. However, some of the distinctive features of the contemporary rental housing market raise questions about whether findings from research on workplace antidiscrimination law in action should structure expectations regarding how new fair housing laws will play out in practice. Following a description of new fair housing laws governing tenant screening, I detail three relevant characteristics of the rental housing market in this regard: the legacy of a historically lax fair housing enforcement regime; the persistence of a large sector of the rental industry that remains nonprofessionalized; and the political and economic dynamics that have amplified the power of landlords relative to housing seekers.
CONTEMPORARY POLICY EFFORTS TO COMBAT DISCRIMINATORY TENANT SCREENING
The information age has brought about an unprecedented level of scrutiny with which applicants for rental housing are evaluated. Tenant screening practices have been revolutionized thanks to the professionalization of the landlord industry, the massive expansion of accessible personal background information, and the growth of a booming commercial background check industry (Kashcheyeva Reference Kascheyeva2007; Thatcher Reference Thacher2008; Oyama Reference Oyama2009; Dunn and Grabchuk Reference Dunn and Grabchuk2010). Today, the majority of private housing providers purchase commercial tenant screening products that return a variety of forms of tenant background information, including criminal conviction histories, credit reports, and civil court records that reveal evictions, landlord-tenant disputes, and various forms of outstanding debt (Dunn and Grabchuk Reference Dunn and Grabchuk2010). Landlords and commercial background check providers maintain that these more exhaustive tenant screening procedures effectively minimize risks to persons and property, in addition to insuring against various forms of legal liability (Helfgott Reference Helfgott1997; Clark Reference Clark2007). Scholars and tenant advocates have challenged the lack of regulation around tenant screening practices, arguing that they erect new and unnecessary barriers to housing by expanding the types of potentially disqualifying background information perceptible to housing providers (Kleysteuber Reference Kleysteuber2007; Oyama Reference Oyama2009).
Although landlords’ adoption of more thorough and formal vetting procedures raises the bar to entry for all renters, the exclusionary impacts of this trend are disproportionately felt by racial minorities. To the extent that the population at risk of disqualification due to their past evictions, damaged credit, or criminal records closely corresponds to the groups protected by antidiscrimination statutes, the use of those credentials in screening applicants for housing may constitute illegal discrimination under the disparate impact standard of the FHA (Lapidus Reference Lapidus2003; Flagg Reference Flagg2011; Lipsitz Reference Lipsitz2012; Ocen Reference Ocen2012). In addition to disproportionately excluding members of protected classes from housing, stringent background screening standards may be implicated in subtle forms of discriminatory treatment at the individual level involving the inconsistent application of screening criteria.Footnote 2
While the latter form of differential or discriminatory treatment is already prohibited by the FHA, rising awareness of the disparate impacts associated with facially race-neutral, exclusionary background screening standards has spurred legislative action at the local level, particularly as it relates to criminal records. The first “ban-the-box” (BTB) law regulating criminal background checks for employment was enacted over twenty years ago in Hawaii, and, as of 2019, thirty-five US states and over 150 cities and counties have adopted workplace BTB laws (National Employment Law Project 2019). More recently, BTB advocates have focused on dismantling barriers to housing for people with criminal records, and, since 2012, BTB or “fair chance housing” laws regulating criminal background checks in rental housing have been enacted in nine jurisdictions.Footnote 3 While these laws vary, they typically require that employers or landlords remove questions about criminal records from application forms, postpone background checks to a later stage in the vetting process, and forgo inflexible criminal history criteria in favor of a more tailored and holistic approach. In 2016, the Department of Housing and Urban Development (HUD) issued legal guidance warning housing providers that overly broad, restrictive criminal history criteria (for example, the exclusion of all felons) could run afoul of the FHA under disparate impact standards, even if applied consistently due to their disproportionate adverse impact on protected classes (HUD Guidance).Footnote 4 The HUD Guidance (2016) and most BTB laws do not prescribe explicit rules for using criminal records but, rather, suggest that many types of criminal history information are irrelevant to an applicant’s capacity to fulfill the terms of a rental lease due to the age, lack of severity, or legally inconclusive nature of criminal records (for example, arrests that did not result in conviction).
In instructing landlords to conduct individualized assessments of applicants’ criminal histories and consider mitigating information as part of a less-discriminatory alternative to categorical exclusions,Footnote 5 the HUD Guidance (2016) and BTB ordinances may complicate traditional civil rights prescriptions for evaluating applicants that emphasize the uniform application of clearly defined criteria (Lageson, Vuolo, and Uggen Reference Lageson, Vuolo and Uggen2015). David Thatcher’s (Reference Thacher2008) analysis of the rise of criminal background screening among landlords suggests that professional rental industry associations, commercial tenant screening firms, and “how-to-landlord” books started encouraging landlords to adopt exclusionary, inflexible criminal background criteria in the 1990s in order to avoid multiple forms of legal liability, including liability under fair housing law. The logic undergirding such advice is that inflexible rental standards signal compliance with the FHA’s requirement for consistency in tenant screening by constraining landlords’ discretion and limiting their individual culpability for any discriminatory effects of their screening or leasing decisions. In press coverage of the HUD Guidance (2016), professional rental industry spokespersons echoed this sentiment, complaining that the guidance would enhance opportunities for discrimination by encouraging landlords to use more discretion when evaluating applicants.Footnote 6
However, the implications of this evolving legal landscape for landlord discretion are far from obvious given the dearth of research on how landlords understand and respond to fair housing law (Schwemm Reference Schwemm1988). For example, it is difficult to infer the extent to which landlords have adopted the best practices espoused by industry professionals regarding the importance of standardized, formal screening practices. As such, questions remain as to whether policies like the HUD Guidance (2016) actually broaden landlords’ discretion or, on balance, do more to restrict it by bringing a practice that the law has traditionally afforded landlords relative freedom to approach at will (criminal background screening) under new legal scrutiny. In order to effectively interrogate whether and how new antidiscrimination laws will transform landlord behavior, it is necessary to examine the distinct characteristics of the contemporary rental market that shape landlords’ tenant screening and selection practices. In the next section, I discuss the challenges that three such features of the rental market potentially pose for new antidiscrimination laws.
CHALLENGES FOR FAIR HOUSING LAW IN A LANDLORD’S MARKET
Sociolegal scholars of antidiscrimination law in action have not devoted the same level of attention to the housing context as they have to the workplace, despite the marked disparity between the goals and outcomes of fair housing legislation. In an analysis of the effects of landmark civil rights laws prohibiting discrimination in employment, voting, and housing, Nicholas Pedriana and Robin Stryker (Reference Pedriana and Stryker2017) start from the scholarly consensus that the FHA has done far less to reduce housing discrimination or residential segregation than Title VII of the Civil Rights Act (1964) or the Voting Rights Act (1965) did to advance racial parity in the workplace and voting booth. Results from federal and local fair housing tests since the early 1970s indicate that housing discrimination on the basis of race and ethnicity is particularly intractable in the rental market (Schwemm Reference Schwemm2006; National Fair Housing Alliance 2017), and racial/ethnic residential segregation remains quite pronounced in much of the country (Logan and Stults Reference Logan and Stults2011; Rugh and Massey Reference Rugh and Massey2014). Social scientists and legal scholars largely attribute the FHA’s failures to features of the law itself, particularly its narrow, individualistic conception of discrimination and its anemic and fragmented enforcement regime (Massey and Denton Reference Massey and Denton1993; Oliver and Shapiro Reference Oliver and Shapiro1995; Bonastia Reference Bonastia2000; Johnson Reference Johnson2010; Silverman and Patterson Reference Silverman and Patterson2011; Pedriana and Stryker Reference Pedriana and Stryker2017).
Although some of the FHA’s weaknesses, such as the limited powers that the law grants to its enforcement agency (HUD) and its focus on individual discrimination, are shared by Title VII, other important limitations of antidiscrimination statutes are more pronounced in the fair housing context. The disparate impact or effect-based standard of liability for the FHA was not formally codified by HUD until 2013 and by the United States Supreme Court in 2015. This left the evidentiary standards for enforcing the FHA inchoate for much of the law’s existence and diminished the capacity of plaintiffs to collectively mobilize the law and/or challenge more systemic forms of housing discrimination (Mahoney Reference Mahoney1998; Pedriana and Stryker Reference Pedriana and Stryker2017). By contrast, the US Supreme Court affirmed the disparate impact standard for Title VII in 1971, opening the door for successful class action lawsuits challenging systemic forms of workplace discrimination (Pedriana and Stryker Reference Pedriana and Stryker2017). Though plaintiffs have successfully fought the segregative siting and admissions policies of public housing authorities using disparate impact claims, legal challenges to the discriminatory practices of private landlords have been stymied by courts’ reluctance to allow FHA disparate impact cases against private actors (Gordon Reference Gordon2006) and by the relative freedom that courts have granted private landlords to base tenant screening decisions on subjective criteria (McCormack Reference McCormack1986). Successful mobilization of fair housing law has also been undermined by the fact that, unlike Title VII’s reporting requirements for employers, the FHA has never mandated systematic data collection on tenant selection practices or outcomes in the private rental market (Pedriana and Stryker Reference Pedriana and Stryker2017).
This is not to understate the significant barriers that contemporary victims of employment discrimination encounter in mobilizing antidiscrimination law, which have been amplified in recent decades thanks to growing judicial deference to employer practices and US Supreme Court limits on class action lawsuits (Berrey, Nelson, and Nielsen Reference Berrey, Nelson and Nielsen2017). However, the distinctively weak enforcement of the FHA contrasts with the historical imprint of Title VII on the American workplace. At the height of its effectiveness in the 1960s and 1970s, effects-based enforcement of Title VII meaningfully improved employment outcomes for historically disadvantaged workers (Pedriana and Stryker Reference Pedriana and Stryker2017). Moreover, fears of Title VII liability spurred significant organizational transformations of the workplace (Dobbin and Sutton Reference Dobbin and Sutton1998; Pedriana and Stryker Reference Pedriana and Stryker2004)—notably, the proliferation of formal governance and legal compliance structures such as rule-bound grievance procedures, diversity officers, and human resources departments (Edelman Reference Edelman1992; Edelman et al. Reference Edelman, Krieger, Eliason, Albiston and Mellema2011; Kalev and Dobbin Reference Kalev and Dobbin2006). By contrast, landlords have not encountered comparable legal pressures to transform their business practices or institutionalize formal legal compliance strategies.
The institutional structure of the private rental industry also has distinct implications for effective enforcement of antidiscrimination law in the housing context. The decentralized character of the rental market, and especially its independent sector, has traditionally frustrated fair housing law enforcement efforts given the challenges of regulating an industry of disconnected, small-scale landlords who often evaluate applicants on a case-by-case basis, in-person, and without formalized eligibility criteria (Schwemm Reference Schwemm2006). Despite the growing share of rental units owned by institutional investors, such as real estate investment trusts (REITs) and the rapid turnover of older, independently managed rental properties (Bhatt Reference Bhatt2015; Kolomatsky Reference Kolomatsky2017), national data suggest that independent landlords still own the majority of rental properties and roughly half of all units in what remains a fragmented and decentralized American private rental market.Footnote 7 Thatcher (Reference Thacher2008) traces the initial emergence of professional rental housing associations to the political battles over rent control in the 1970s, but he attributes the more recent proliferation of such groups to the need for legal advice on the part of individual landlords who lack their own legal compliance structures. Independent, and particularly “mom-and-pop” or non-professional, landlords have played an important role in recent political and legal contests over tenant screening regulations. Professional rental industry spokespersons have often staked their opposition to new regulations on the grounds that the laws expose small landlords to unique risks.Footnote 8 Independent landlords who own properties with fewer than four units also provide a disproportionate share of the nation’s dwindling low-cost housing stock (Garboden and Newman Reference Garboden and Newman2012), a fact that industry spokespersons have leveraged to argue that new regulations threaten the viability of the sector of the rental market most affordable to low-income renters (Rosenberg Reference Rosenberg2017). In summary, independent landlords play important roles in both political contests over, and real-world implementation of, new fair housing laws designed to aid disadvantaged renters. Notwithstanding the very recent resurgence of empirical research on the stratification consequences of landlord practices (Rosen Reference Rosen2014; Desmond Reference Desmond2016; Desmond and Wilmers Reference Desmond and Wilmers2019; Garboden and Rosen Reference Garboden and Rosen2019), landlord practices remain an empirical “black box” for the most part, particularly in relation to fair housing laws (Pattillo Reference Pattillo2013; Garboden et al. Reference Garboden, Rosen, Greif, DeLuca and Edin2018). Consequently, it is unclear to what extent the proliferation of rental housing professional associations and commercial tenant screening services have standardized the way in which independent landlords screen and select tenants, a situation that poses challenges both for scholars and policy makers interested in understanding how fair housing regulations play out in practice.
Finally, the economic and policy environment in which contemporary landlords operate, characterized by an extremely tight rental market and the near-total devolution of affordable housing provision to the private sector, has amplified the power of private landlords relative to tenants. Heightened demand for rental housing in the sustained aftermath of the 2008 foreclosure crisis has contributed to precipitous rent increases across the United States, especially in coastal urban areas. Due to the inadequacy of public rental assistance programs, most poor and working renters are not shielded from runaway rents in the private sector. Three out of four low-income households who are eligible for federal rental assistance do not receive any assistance, contributing to a situation in which 47 percent of renters devote over a third of their income to housing costs (Joint Center for Housing Studies 2017). Following the twentieth-century restructuring of public housing policy, existing housing subsidies have largely operated through the private market in the form of vouchers and tax-credit housing, and just 2 percent of rental units in the United States are publicly owned (US Census Bureau 2015a).
Although few scholars have interrogated what structural dynamics like the unaffordability crisis or the neoliberalization of housing policy mean for fair housing law (Robinson Reference Robinson and John2019), Adam Gordon (Reference Gordon2006) demonstrates how the perennial shortage of affordable housing has undercut the effects of hard-won legal victories challenging exclusionary zoning policies. Specifically, efforts to combat racial segregation by winning legal rights to build affordable housing in suburban areas have faltered when new developments draw huge pools of qualified white applicants eager to access affordable housing. When coupled with courts’ deference to the screening standards of private affordable housing developers and the absence of race-conscious admissions policies, the unmet demand for affordable housing has meant that some successful zoning lawsuits have failed to desegregate the suburban jurisdictions they had targeted.
Extreme economic conditions in today’s rental market may similarly pose challenges for legal efforts to root out discriminatory screening procedures. Unsurprisingly, landlords tend to adopt more rigorous screening criteria in tight markets and relax those criteria in slack markets when vacancy rates are higher (Clark Reference Clark2007; Dickson-Gomez et al. Reference Dickson-Gomez, Cromley, Convey and Hilario2009; Rosen Reference Rosen2014). Consequently, a landlord’s market in which large pools of potentially qualified applicants compete for available rental units may increase the penalty associated with possessing a stigmatizing mark like a criminal record or a past eviction. These market conditions could also make discrimination harder to detect by creating plausible deniability for landlords inclined to exclude “undesirable” applicants on the basis of prohibited categories like race or family status. In these circumstances, discriminatory tenant selection decisions can be credibly explained away in reference to the existence of other applicants who are better qualified on nondiscriminatory dimensions like income or credit score. In sum, policy makers may face unique challenges in compelling landlords to relax their screening criteria when they have economic imperatives to adopt exclusionary entry qualifications as a means to thin out large applicant pools.
This case study leverages the evolving local policy environment that governs tenant screening in Seattle to better understand the challenges that these features of the contemporary rental market pose for a new generation of fair housing law. Drawing on lessons from sociolegal scholarship on workplace antidiscrimination law, this study investigates how rental industry representatives understand and respond to evolving legal rules for how landlords exercise discretion when evaluating and choosing tenants. In light of recent sociological research illuminating how contemporary rental market conditions and low-income housing policies have enhanced the power of private landlords relative to tenants, this study also analyzes how a very competitive, low-vacancy market impacts tenant screening practices, landlords’ orientation to fair housing laws, and the housing search experiences of renters with stigmatizing background records.
After detailing the study’s research site, data, and methods, I present findings from interviews with three respondent groups, starting with rental industry experts’ understandings of the obligations that fair housing law imposes on landlords with respect to tenant screening. I then highlight divergence in the perspectives of independent landlords and rental industry experts regarding how discretion should figure into lawful tenant screening practices. While experts contend that ideal fair housing compliance involves minimizing the discretion of screening agents, independent landlords and property managers acknowledge that they exercise considerable discretion when evaluating applicants and maintain that they have the legal right and business imperatives to do so. The industry expert respondents occupy prominent positions in their respective fields (that is, lobbying, tenant screening, real estate law) and often participate in public debates over housing policy. As such, their perspectives likely have larger impacts on fair housing laws as they are written, whereas independent landlords and property managers play an important, but largely unseen, role in giving meaning to new and existing fair housing laws in practice.
I then illustrate the varied, contradictory ends to which independent rental housing providers exercise discretion and the adaptive strategies they plan to implement to retain their discretion in the face of new tenant screening regulations. Finally, I demonstrate how independent landlords’ more informal or subjective approaches to tenant screening practices can open doors for renters with stigmatizing backgrounds in theory but, in practice, exacerbate the power and information asymmetries between landlords and prospective tenants and raise the costs of housing searches for negatively credentialed renters. These findings also illuminate how the stark power imbalance that characterizes landlord-tenant relations in a landlord’s market may undermine the efficacy of new fair housing laws that rely on the victims of discrimination for their enforcement.
CASE STUDY SITE: A LANDLORD’S MARKET IN SEATTLE
Seattle has been characterized as being on the leading edge of progressive policy innovations that have subsequently proliferated across other cities (Lowrey Reference Lowrey2014; Miller Reference Miller2016). Much of the city’s recent policy activity concerns rental housing as part of broader political efforts to respond to acute unaffordability, homelessness, and racialized residential displacement crises. In the face of greatly diminished state and federal social safety nets and thwarted efforts to impose new city income and business taxes, local policy makers have coupled modest expansions of affordable housing and anti-homelessness programming with a regulatory approach to the housing crisis that does not demand large outlays of taxpayer resources. The latter strategy embodies the trend toward repurposing antidiscrimination laws to combat nontraditional forms of socioeconomic exclusion (Johnson Reference Johnson2016) and has resulted in new laws restricting the use of criminal history information in hiring and prohibiting discrimination on the basis of income source in the rental housing market.Footnote 9
This approach has been deployed more recently in Seattle to regulate tenant screening and selection practices among private landlords. In 2016, the city passed the “First-in-Time” law requiring landlords to screen applicants in the order that they apply and rent to the first qualified applicant. The measure is designed to strengthen an existing law prohibiting source-of-income (SOI) discrimination after fair housing tests revealed that landlords continued to routinely refuse to rent to housing voucher recipients.Footnote 10 In order to comply with the “First-in-Time” law, landlords must explicitly define their eligibility criteria and make those standards available to prospective applicants. On the heels of the “First-in-Time” law, the City Council approved the nation’s most far-reaching BTB law for housing in 2017, the Fair Chance Housing Ordinance (2017), which prohibits private rental housing providers from using criminal background information to screen and select prospective tenants.
This political context offers a valuable opportunity to bring sociolegal questions to bear on new innovations in fair housing law. Given Seattle’s status as a bellwether of local policy innovation and the ubiquity of the social problems that new tenant screening regulations are designed to combat, this study’s findings are relevant for urban governance beyond Seattle. Like in many US metropolitan areas, Seattle’s rental housing market is increasingly competitive and unaffordable but still largely controlled by independent landlords. In 2013 and again in 2015, Seattle experienced the nation’s steepest rise in rents among large cities (Balk Reference Balk2014; Rosenberg Reference Rosenberg2016). Paralleling national trends, most disadvantaged renters are forced to secure housing in the private market unassisted, given the scarcity of public housing and the short reach of rental assistance programs (Aurand et al. Reference Aurand, Emmanuel, Yentel, Errico and Pang2017; Balk Reference Balk2018). The share of Seattle’s rental units owned and operated by small-scale, independent landlords and property managers likely mirrors, if not exceeds, proportions at the national level.Footnote 11 Better understanding the screening practices of independent landlords is important not only because they continue to control access to a substantial segment of the rental housing stock in the United States but also because the relative affordability of this segment of the market and the flexible, informal screening procedures employed by smaller landlords open doors to renters who encounter significant barriers to housing elsewhere. This case study thus offers relevant insights into how the contemporary political and economic environment in which private landlords operate may impact the implementation of new antidiscrimination laws.
DATA AND METHODS
This study draws on forty-six in-depth interviews with respondents who formulate, implement, or are subject to tenant screening practices in the Seattle metropolitan area. Ten respondents are industry spokespersons or experts who offer political, legal, or professional support to large numbers of private landlords and property managers and, therefore, have a “bird’s eye view” of industry practices and the local policy environment. This group includes three lobbyists for professional rental housing associations, three real estate attorneys, and representatives from a corporate property management firm, a commercial tenant screening company, a web platform for rental advertisements, and a nonprofit bridging organization that connects marginalized renters with private landlords. Many of these respondents participated in the public debates over the proposed BTB law in Seattle, and each of these respondents was referred on account of the prominent positions they occupy in their respective professions and their expertise regarding tenant screening matters. Eleven of the respondents are independent landlords or property managers who directly oversee tenant screening and selection as part of their day-to-day work. Their rental portfolios range in size from landlords who own one single-family home or duplex to property managers who handle screening and leasing for thirty single-family homes or three apartment buildings ranging in size from eighteen to twenty-four units. With the exception of two respondents in this category—a property manager who oversees leasing for a private affordable housing development and a landlord who owns a small shared-occupancy house catering to formerly incarcerated tenants—the landlord respondents mostly operated in the dwindling middle sector of Seattle’s rental housing market. The third respondent group consists of twenty-five negatively credentialed renters or individuals with criminal conviction records, prior evictions, and/or damaged credit histories who had searched and applied for private rental housing in the last year. Demographic characteristics of respondents are reported in Table 1.
Table 1. Racial/ethnic and gender identity of respondents
I used multiple recruitment methods to contact potential respondents working in the rental housing industry who could offer distinct perspectives on the legal, technological, and economic dynamics that affect the screening and selection of tenants, starting with referrals from rental industry contacts I developed for an earlier study of barriers to housing and employment for people with criminal records. The remaining respondents were recruited using either snowball sampling or an online advertisement inviting local landlords and property managers to participate, posted on a networking platform for Seattle neighborhoods, Nextdoor.com. The negatively credentialed renters were recruited using flyers distributed through several local organizations that provide relevant resources and legal services for the population under study, such as credit counseling, legal aid for tenants, and criminal conviction expungement services. The renters interviewed for this study were offered financial compensation for their time and transportation expenses (twenty-five dollars), which was advertised in the recruitment flyer.
The interviews lasted between one and two hours and took place at a location of the respondents’ choosing. The interviews with rental industry representatives were guided by a protocol designed to elicit descriptions of tenant screening and selection policies, practices, and priorities and the considerations that motivated different approaches to screening, while the protocol for the interviews with negatively credentialed renters asked respondents to describe their experiences searching and applying for private rental housing in the last year. Whenever possible, I asked respondents to explain their practices or experiences in concrete terms—for instance, asking landlords to “walk me through” the screening and selection process for the last unit they filled or asking renters to narrate the details of their most recent housing search experience, rather than using more general or abstract prompts. I took this approach in an effort to mitigate one of the important limitations of interview methods—namely, that interview and survey data are “abstracted from the situations about which many claims are ultimately being made” (Jerolmack and Khan Reference Jerolmack and Khan2014, 201) and, thus, are imprecise proxies for situated behavior. This study’s multiperspective design also helps to compensate for some of the inherent weaknesses of interview methods by triangulating different accounts of tenant screening practices. Triangulating the data illuminated both revealing discrepancies in the narratives of differently positioned respondents (such as rental industry experts’ and landlords’ divergent understandings of fair housing obligations) and complementary windows into a common phenomenon (renters’ experiences shed light on the human costs of independent landlords’ informal screening practices).
Transcripts of the audio recordings of interviews were coded using NVivo content analysis software. An index of coding themes was developed prior to initiating data analysis and refined iteratively throughout the coding and analysis to systematically identify patterns of variation within the interview data. These themes corresponded to both the descriptive topic areas and my theoretical interests stemming from sociolegal literature on antidiscrimination law in action.
FINDINGS
“There Is No Gut-Judgment Call”: Industry Spokespersons on Tenant Screening Best Practices
With the HUD Guidance (2016) and the likely enactment of a local BTB measure in mind, many of the rental industry experts interviewed for this study argued that new regulations on criminal background screening would upend best practices for fair housing law compliance that have been widely accepted and institutionalized in the private rental industry. In this section, I illustrate what these respondents, who often act as spokespersons or the public face of a heterogeneous and decentralized industry, argue is central to fair and lawful tenant screening: the consistent application of clearly defined eligibility criteria and screening procedures. These respondents further contend that such an approach, which minimizes landlords’ discretion and opportunities for the expression of illegal bias, would be undermined by BTB laws and the HUD Guidance (2016), which encourage landlords to evaluate applicants on a case-by-case basis. The industry experts’ ideal standard for lawful tenant screening, however, does not appear to have been universally adopted or endorsed by independent landlords. As the second section details, while many independent landlords and property managers also oppose tenant screening regulations like BTB, they do not share the experts’ characterization of discretion as being antithetical to nondiscrimination and, instead, maintain that more subjective approaches to evaluating rental applicants constitute legitimate and lawful business practices.
Though many of the rental industry experts acknowledged that blocked housing access for people with criminal records was a significant social problem, each of them opposed the BTB law that had been proposed in Seattle in 2012 and 2016. Although the law was framed by its advocates as a racial equity policy, these respondents argued that the policy would enhance opportunities for discrimination and expose landlords to greater fair housing liability. As one rental housing lobbyist and attorney explained, professional organizations have long educated landlords on best practices for fair tenant screening, which come into conflict with the approaches to screening proposed by BTB advocates:
Well, since the Fair Housing Act we’ve been hammering into our members’ heads: there is no gut-judgment call, there are ascertainable standards, right? So, when I sit across from [name of tenants’ rights advocate], and she says you know, “you can look at it, but then we also want you to, you know if there’s a letter from a social worker, well I want you to take a risk.” And I’m like, great, but … let’s just say that my landlord is making a judgment call from the gut. How do we know that isn’t a prejudiced judgment call? The judgment call they’re asking you to make puts me into a fair housing paradox.
Many respondents similarly complained that legal efforts to stem the disparate impact of restrictive criminal background screening policies would enhance opportunities for more subtle forms of discriminatory treatment of rental applicants (for example, accepting the mitigating circumstances of only white applicants with criminal records). Many of the respondents in this group considered themselves experts in fair housing and landlord-tenant law and expressed concerns about tasking legally unsophisticated landlords and property managers with conducting individualized assessments of applicants. Multiple respondents explained that the lack of legal training and fear of fair housing liability among such on-site screening agents often lead them to rely on either broad, exclusionary screening criteria or commercial background check services that provide formal recommendations on applicants’ eligibility. One real estate attorney contrasted landlords with employers to account for how landlords typically approach compliance with antidiscrimination law:
I think it’s an easy decision for a housing provider to say, “I am not going to take anyone who has a felony conviction, period” or “I’m not going to take anyone who has a felony conviction in the last five years or ten years.” That’s far easier than saying, “I’m going to look at this person’s criminal background and see what kind of an offense it was and how long has it been and how rehabilitated they are.” On-site staff doesn’t have the capacity to do that. Typically landlords don’t have an HR department that runs the screening side. You’ve got officials in the HR world in employment who are, I think, very capable of making those informed decisions. Not so in the housing side.
The notion that most independent landlords lack the expertise necessary to assess an applicant’s criminal history in a nuanced manner was also expressed by the executive of a commercial screening company. For him, the legal naiveté of independent and small-scale landlords helped account for the popularity of online tenant screening services that make explicit rental recommendations, as landlords believed that deferring to such recommendations insulated them from fair housing liability:
They’re [landlords] saying, “We like using SafeRent because it tells us red, yellow, green lights and our people don’t have to think. We don’t want them to think. We think it’s safer, legally, from a fair housing standpoint if they don’t think.” There’s just less risk to the organization. … This notion of having some site person that doesn’t have a clue how to read a record individually assess the merits of the case scares the crap out of landlords. I think it would end up in discrimination claims.
According to these experts, the uniform application of clearly explicated screening criteria is a fundamental basis of fair housing compliance in rental housing. As a lobbyist representing a professional association largely comprised of independent landlords summarized: “I don’t know if your rental is in a flop house next to a boiler factory and you’ll take anybody off the street or it’s a deluxe penthouse…. You have to set your own standards. But you have to apply it consistently.” Employing unambiguous and exclusionary rental criteria (for example, “no felons”) and deferring to the screening decisions of commercial background check companies are central strategies by which private landlords minimize their own discretion (or at least the appearance of it) and signal that they are screening rental applicants consistently. For respondents in this group, the new legal standards for criminal background screening proscribe independent landlords’ traditional modes of compliance with nondiscrimination law.
Implicit in these arguments is the assertion that such best practices for tenant screening have been widely adopted since the FHA’s passage and successfully prevent unlawful discrimination. Only one respondent in this group, a rental housing lobbyist and retired attorney who represented an array of private rental housing providers, ranging from REITs to independent landlords, broke with that narrative by acknowledging that informal, subjective, and potentially discriminatory approaches to screening applicants persist in the rental industry’s mom-and-pop sector. This respondent contrasted practices in the mom-and-pop sector from those in the corporate rental sector, where he contended that landlords employ the sort of formalized, clear, and consistent screening practices described above by other experts in the rental industry. He suggested that, although the HUD Guidance (2016) and BTB policies do pose fair housing compliance challenges for all rental housing providers, corporate landlords have the necessary infrastructure to adapt to those regulations, including the mandate for individualized assessments, without exposing themselves to fair housing liability. He reported that many corporate landlords had already decentralized their background screening procedures prior to the HUD Guidance (2016) and that some companies subsequently directed their off-site screening offices to conduct individualized assessments of criminal records without exposure to racial/ethnic identifiers (that is, applicants’ names) in an effort to lawfully comply with the guidance.
By contrast, this respondent argued that new regulations on criminal background screening would prove more complicated for independent landlords to implement. This is not because, as other respondents in this category maintained, the individualized assessment mandate flies in the face of the uniform screening practices that this sector of the industry has long embraced. Instead, he acknowledged that most small landlords meet applicants in person and that some use those opportunities to assess applicants in very subjective, potentially illegal ways. Here, he describes the kind of informal, pre-application screening that often occurs when small landlords meet prospective applicants:
I won’t approve it, but I can certainly understand small landlords making unfounded judgment calls based on someone’s appearance, the car they drive, etc. The behavior of their children, if they bring their children to the screening and other things that they probably shouldn’t consider, but people are people and they do that…. You would hope they wouldn’t do that, but I don’t know how you stop it.
As the next section details, the notion that formal, uniform tenants screening procedures have been widely institutionalized in the rental housing industry is also undermined by independent landlords and property managers’ own accounts of their screening practices. Many of those respondents described taking a relatively informal and subjective approach to screening applicants. Unlike some professional rental companies that deliberately separate responsibility for tenant screening and selection from showing vacant units, most independent landlords and property managers still meet prospective applicants in person at some stage of the screening process. Although none of the independent landlords or property managers interviewed for this study described prescreening applicants in a demonstrably discriminatory manner (for example, using open houses to determine the race or family status of applicants), many acknowledged using in-person meetings as a chance to get “a feel” for the dimensions of an applicant’s character that cannot be discerned from application materials. As one small landlord remarked, she aims to conduct a holistic assessment of applicants in the hopes of finding not merely tenants who can pay the rent but also “good people.”
Below, I present first-hand illustrations of this approach to screening and highlight how independent landlords’ broad discretionary powers can work to both the benefit and detriment of renters with negative background credentials. I also detail how the commitment to retain those powers in the face of new regulations motivated some respondents to develop adaptive strategies that would further undermine rental housing access and run counter to the goals of Seattle’s tenant screening reforms.
“We Go Totally Subjective”: Independent Landlords on the Necessity of Discretion
The self-reported tenant screening practices of respondents in the industry’s independent sector depart significantly from the best practice recommendations of industry experts. This group of respondents were comfortable exercising considerable discretion when making choices about how to screen applicants, who to rent to, and what information to disclose to rejected applicants. This section illustrates how such subjectivity can open doors for renters who encounter significant barriers to housing elsewhere, while also enhancing opportunities for discrimination and compounding the costs associated with housing searches for negatively credentialed renters. The fierce commitment to retaining discretion among these respondents may also motivate modes of adaptation to new regulations that threaten to exacerbate the housing accessibility crisis.
In contrast with the industry experts, independent landlords and property managers tended to describe tenant screening as more of an art than a science. Only one respondent in this group expressed any concern that the use of subjective criteria would put them at risk of violating fair housing laws. Otherwise, landlords and property managers were more likely to assert their legal rights to use subjective screening methods than to associate such methods with fair housing liability. For instance, one landlord described how his background screening practices depart from the procedures stated in his rental advertisements since he decides on a case-by-case basis when to undertake any sort of formal background check:
Just to be transparent here, I’m pretty aggressive on the listing in terms of what I’m going to require in the way of an application…. And because I figure if it’s in the listing, I have the right to do it. I exercise a lot of discretion about how much of that I actually follow-up on. … It’s [approach to screening] systematic from the start, but I count on my personal judgments to decide how much of the protocol to actually execute. So I would never post a unit without saying there will be a background check. But I may not run a background check. I have the rights to.
The majority of landlords and property managers acknowledged that they did not have a formal, written set of procedures for screening and selecting applicants. Particularly when reflecting on the “First-in-Time” law (2016) that mandates that landlords formalize their rental eligibility criteria and make those standards available to applicants, many respondents contended that what constituted a qualified applicant could not be translated into an unambiguous policy. Although most respondents reported that their evaluations largely revolved around conventional criteria related to income, credit, and rental history, they eschewed hard and fast standards in favor of a more holistic assessment style.
Such an approach allowed respondents to approve applicants who might be rejected by a more formal vetting system as long as the applicant could provide compensatory evidence of their fitness as a tenant. For example, respondents often mentioned credit history as one criteria that they approached in a very flexible manner, often overriding the initial recommendations of tenant screening services to reject applicants with poor credit scores if the applicant had a stable income and a strong rental history or if the source of their credit trouble was not indicative of fiscal irresponsibility, such as student loan debt. One property manager described how he approaches damaged credit histories:
The most common [issue] is credit problems. We’ll ask them to explain them to us. And then, that is again, we totally go subjective. We have the right to plain decline them now. So instead we’re going to give them one more chance and we do that very subjectively.
Another property manager described how elements of applicants’ background information are evaluated using flexible, holistic standards that allow for consideration of mitigating circumstances. In confirming that her property management company evaluated applicants on a case-by-case basis, she described multiple cases wherein she adjudicated applicants’ own narratives that complicated what their credit or criminal histories looked like on paper:
Property manager: A lot of couples get divorced and the credit is awful. And it’s always, “Well, it was my spouse’s fault.” And even then how do you know? You start to look at stuff. It’s very, very rare—if you ruin the credit—you’re the female spouse but everything looks like it’s hunting equipment and that. Sometimes there are bigger clues. It’s hard to say.
Author: Are there any clear standards with other things like criminal records?
Property manager: With the criminal records—ironically this person worked at a law firm. They were a paralegal. So they applied and she tells me from the beginning you’re going to see I have a criminal record because in Minnesota if the cops come out—it wasn’t a felony but it wasn’t a misdemeanor either. It was somewhere in between. So I said, “What happened?” She was at a family funeral and a fight broke out and the cops came. She got arrested along with some other relatives. … We looked at the rest of her criteria. She works at a law firm. Her current landlord gave her great references. So we rented to her. The sex offenders I cannot help. The violent criminals I cannot help. The marijuana use it depends how long ago it was.
Beyond the desire to balance various elements of an applicant’s background information and consider mitigating information, respondents in this group also admitted that they lacked formal, inflexible screening policies because they sometimes used more “gut-based” judgments based on more intangible features of applicants’ personalities or demeanors. As one property manager explains, after vetting applicants more formally on the basis of their application materials, he and his colleague use their years of experience to try to deduce aspects of an applicants’ character that cannot be determined by their application and background check materials alone:
Author: Do you have written policies about screening that are available?
Property manager: Not really, because it would seem like it would be a thirty-page document. [Name of colleague] has been in this since 1989. The two of us just know what we’re looking at when we screen people. She’s the one dealing with them if she rents to someone who is really a jerk. So she’s motivated to screen for what works for her…. Yeah, it’s pretty subjective once we get through the basic criteria. But, you know, we’re giving everyone a chance. If you are basically normal and you pass our screening, you get to rent from us.
This respondent expanded on this point in discussing the “First-in-Time” law, defending his right to use a more “gut-based” judgment to screen out “jerks”:
Property manager: What does it mean to be a qualified applicant? Not just someone passes the criteria … you don’t have to rent to someone who meets all of your criteria. There’s no law against not renting to a jerk. If people are just abrasive, and we have multiple applicants, we’re going to take the least abrasive—that is not a protected category and that’s not what she’s [city council member] addressing in the laws and so we’re going to continue to do that I would assume.
Author: Once you get a chance to meet people in person, you get a sense?
Property manager: You can get people’s vibe pretty damn quick.
Other respondents similarly described the importance of their perceived right to reject applicants about whom they have misgivings even if they meet predetermined eligibility criteria. Multiple respondents reported that they already screened tenants in the way the “First-in-Time” law prescribes—namely, they conduct formal background checks for only one applicant at a time in the order that they apply and rent to the first qualified applicant. Nonetheless, even landlords who took this approach expressed their fear that the new law would take away their “veto power” to reject applicants from whom they got a “bad feeling.” One landlord recalls how she departed from her typical practice of renting to the first qualified applicant because of the negative impression she got when meeting the applicants:
I had this window of time that I was going to show it, and there were two young women who wanted to look, and I said OK to them coming earlier. And I really regretted it because they were extremely pushy and I didn’t like them. One of them was unemployed, and she said she had a trust fund, and I said—you know, I just said, “No, I can’t do it. Sorry.” But I may have been—I don’t know if that was really fair or not. But I knew I didn’t want to deal with them in the long run.
This respondent also explains how her fear of abrogating control over tenant selection is informed by an incident in which she rented to a group of tenants who did costly damage to the unit. In that case, she suppressed her initial concerns about the applicants because she felt they were based on stereotypes about “privileged young men, [who] kind of expected to do whatever they wanted.” In retrospect, she wished she had “trusted her gut” and rejected the applicants:
I had three guys who my husband [had misgivings about], and I said, “Well, let’s give them a chance.” And they just trashed the place. They were really hard on it. And it’s just one of those things where I tried to play fair and they were the first to apply and maybe I’m really naïve. But I don’t know how to avoid that, if we’re going to be forced to take the first applicant who’s qualified.
While the level of discretion exercised by these respondents clearly diverges from what industry spokespersons maintain are best practices for compliance with fair housing law, it is also clear that such discretion is sometimes exercised to the benefit of disadvantaged renters. One respondent who works for a nonprofit bridging organization captures the double-edged nature of informal screening practices—namely, that they can be a source of both mercy and bias. Reflecting on his efforts to help his clients identify landlords who have looser rental standards, he conveyed his simultaneous appreciation for, and misgivings about, landlords who lack any clear rental criteria:
Well, of course, there’s grounds for a lot of discriminatory issues there, positive and negative, but there’s also a lot of opportunities. I mean, I want everything fair, and so, when a landlord says, “Oh, I don’t screen,” it’s like, well, part of me, it says, “Great!” But on the other hand, it’s a challenge, because it could work the other way, too.
This respondent recounts one example of what the “other way” looks like, a scenario in which landlords take advantage of large applicant pools to pick and choose tenants in capricious and potentially discriminatory ways. This is precisely the scenario the “First-in-Time” law is designed to prevent, according to its advocates (Beekman Reference Beekman2018).
One of my most embarrassing moments in this work, was going to a Section 8 open house and watching the environment of how many people, voucher holders, are searching for units, what they’re saying and doing to try to get this landlord to go their way, and how the landlord selects clients. “Oh, I ran out of applications. Call me. I’ll send you one.” All kinds of things that are … pretty demoralizing.
Perhaps unsurprisingly given the strength of social and legal nondiscrimination norms, none of the landlords or property managers interviewed for this study indicated that race or other protected class statuses impact how they exercised discretion or made judgment calls when screening and selecting tenants. Though some respondents in this group acknowledged that subjective or holistic screening styles create opportunities for discrimination, unlike the industry spokespersons, they did not contend that screening agents need to minimize discretion or eschew informal vetting practices to protect against fair housing liability. Instead, multiple respondents mentioned that they knew not to discriminate against protected class members, an obligation that one property manager asserted was easy to meet for nondiscriminatory people:
Author: What legal concerns shape the way you approach screening?
Property manager: We’ve [referring to himself and his business partner] known each other forever and we already know that we as people don’t violate in life any of the basic discrimination provisions, whether handicapped, ethnic, religious—these things. So I don’t really have any. I think I want to dot my I’s and cross my T’s because somebody can just be sour grapes.
Though this group of respondents did not express strong concerns about exposure to fair housing liability, multiple respondents nonetheless described taking deliberate steps to shield their tenant screening and selection decisions from scrutiny or withhold information from applicants. Many of the landlords in this study reported relying on the phrase “we selected the most qualified applicant” so as not to communicate their real motivations for turning away prospective tenants. This strategy is described in legal scholarship on property rights, which describes how vague criteria allow property owners to exercise their right to exclude entrants without exposing their exclusionary practices to scrutiny or running afoul of antidiscrimination law (Strahilevitz Reference Strahilevitz2005). In explaining rental decisions by emphasizing the selection of the applicant who was most qualified or submitted their application first, housing providers were able to avoid revealing the sometimes subjective bases on which they reject undesirable applicants. One landlord described how he rejected a prospective applicant without disclosing his misgivings about her character:
There was one case of somebody who I thought actually was probably dishonest and was bullshitting me. I promised to send her an application form the next day, basically buying time with it, and I never sent it. Instead of sending it, I sent an email saying that someone I had been talking to resurfaced. I didn’t say, “I got a bad feeling about you. I think the stories don’t add up and you might be a shyster.” I didn’t say that. I just told her I had rented it to somebody else who I had been talking to before I met her.
Another landlord admitted that she used similar evasive language because she wanted to avoid opening up her decision-making to scrutiny or inviting allegations of discrimination: “Potentially I might be saying something that could be discriminatory, or could be construed in the wrong way and I’d much rather just say, ‘We decided to offer it to somebody else.’” This explanation does not typically precipitate additional questions or complaints from rejected applicants, according to a property manager who recounted using the same language:
When someone says, “Why didn’t you rent to me?” We simply say there are stronger applicants and they don’t drill down on it. … In the application process, people do just move on. People don’t cling very hard to not getting a place.
As the next section illustrates, landlords’ flexible rental standards and obfuscation of the logic guiding their tenant selection decisions create clear challenges for negatively credentialed renters. The lack of transparency that often characterizes more informal approaches to tenant screening can compound the considerable search costs incurred by renters with tarnished backgrounds as they try to secure rental housing in a competitive market with little useful information as to how to mitigate their weaknesses as prospective tenants or efficiently target their search efforts. This information asymmetry also undermines the ability of renters to determine whether they have been subject to discriminatory practices. As the previous quote illustrates, renters are already disinclined to interrogate landlords since the imperative to find housing is much more pressing than whatever interest they may have in mobilizing antidiscrimination law to contest their rejection.
Though independent landlords and property managers likely exercise their discretion in idiosyncratic ways with varied and indeterminate consequences for renters, respondents in this group were unified in their commitment to retain their discretion. Before turning to the experiences of negatively credentialed renters, I describe how landlords and property managers plan to circumvent or adapt to two tenant screening regulations that call for either restricting landlords’ discretion to select the applicants they prefer (“First-in-Time” law) or their use of criminal background information (BTB law). Some of these respondents contend that their perceived right to evaluate and choose tenants in the manner they see fit is under assault by local policies, particularly the “First-in-Time” law, and describe their plans to circumvent this policy in ways they acknowledge will undermine its objectives. They justify those plans on the basis that the new regulations undermine their ability to find compliant and amiable tenants, reduce turnover, and minimize risks to their property, which are imperatives that are likely of greater concern for small-scale rental housing providers than corporate ones.
One respondent described how she intends to take a number of steps to mitigate the perceived negative impacts of the new “First-in-Time” law: “I feel more exposed and more vulnerable if I have to take the first person who’s qualified.” For her, those steps included raising deposit fees and advertising available units by word of mouth instead of on web platforms like Craigslist and Zillow. Other respondents suggested that they anticipated finding ways to adapt to the new law without sacrificing the discretion they currently enjoy—a sentiment echoed in the local press by landlords who assert they will simply work around the new measure by tightening rental criteria in order to maintain the quality of their applicant pool (Beekman Reference Beekman2016). One landlord asserted that he is considering raising his minimum credit score and income standards to the most extreme level permissible under the law in order to circumvent the new law. He maintains that, for a small landlord, these steps are necessary insurance against the significant financial risks associated with renting to a “bad” tenant who damages the unit, is evicted, or breaks their lease:
Landlord: I know one thing—we’re going to do the more expensive background checks because we’re going to make them verify employment and income. … I expect we’re probably going to come up with very explicit qualifications and maybe make them pretty extreme so that we can then say, “Oh, look, nobody met our qualifications,” and then we’re going to subjectively choose from the people that we seem to like.
Author: So if you had to do that, what would you have in mind?
Landlord: A really high credit score and income requirement that was absurd. I mean, frankly, they have to make six times—their monthly income needs to be six times the rent or something. I’m guessing there will be some guidelines about what we can and can’t do and we’ll probably push those as much as we can because we run a huge risk. A small-time landlord, if somebody fucks up one of our units in the duplex, I mean, for us … it’s a big loss.
The same respondent understood the motivation for the “First-in-Time” law but maintained that subjectivity was essential to the business models of small landlords:
The previous method that we would use, which I think is fairly common for small-time landlords… is you set your rent low, get a huge pool of applicants, and choose the people that seem like they’re going to be the lowest risk, the best tenants. Now I get that that opens up tremendous room for discrimination. I think systematically maybe that’s not the best thing. But … it’s the thing that protects me from risk the most. And because I don’t do policy, I guess I should say maybe it’s not my job to try to reconcile those. I don’t know how to do it. … There just hasn’t been a ton of variation in people that [apply]—I mean, there’s some income variation … but, honestly, when we’ve made decisions, it’s come down to—do they seem more easygoing? Are they going to complain a lot? Do they seem stable?
Another landlord who rents large homes to groups of college students similarly contended that the city’s regulatory efforts undermine her current approach to vetting rental applicants, which is tailored to her specific customer base. Like other respondents, she speculated that the new regulations were designed to ultimately restrict rental eligibility criteria to one’s ability to pay the rent. That standard alone, she argued, is inappropriate for independent landlords who have more extensive contact with their tenants and bear greater fiscal risks when they enter a lease with a new tenant. For her, an applicant’s income is relatively unimportant since most of her student tenants will have co-signers. Instead, she relies on a very in-depth, personalized, and labor-intensive vetting process designed to assess the moral character of applicants:
The city in terms of its movement towards the Fair Housing and accepting anybody who shows up with an open checkbook … for us it really isn’t so much about the financial wherewithal because often times we’re working with students the parents are involved. … It’s not so much about the money as it is about people being good people. … I go a lot deeper than I think most property managers would go in a character sense. Obviously, there’s a boat load of facts that you can put on paper, but it doesn’t really give you a sense of who the person is. I get all the back story about the awards they had in high school and how hard they worked to get into the Informatics school.
The same respondent suggested that she will find a way to signal visible compliance with the new “First-in-Time” law without it impacting her capacity to choose the applicants she prefers: “I will be in conversation with our rental housing association counsel around how to be as completely appropriate as we can be while still being able to rent to the people that we really want to.” In short, this group of respondents staunchly defended their perceived right to exercise discretion in choosing tenants so long as those choices are not explicitly discriminatory. Many respondents also maintained that small-scale players in the rental industry need to use more subjective methods of assessment to minimize risk by selecting tenants they judge to be the most reliable, even though some respondents acknowledged this approach also enhances opportunities for discrimination. These respondents also expressed confidence in their ability to retain their discretionary powers in the face of new laws. As one property manager remarked regarding how laws intended to regulate screening can be circumvented: “There is always very easy ways to not rent to somebody.” The exclusionary effects of the adaptive strategies described by respondents—namely, the move to word-of-mouth advertising and ratcheting up of income and credit-related rental criteria—would likely be disproportionately felt by the sorts of disadvantaged renters that new tenant screening policies are designed to benefit.
In the following section, I present findings from interviews with negatively credentialed renters that shed light on how landlord practices can mitigate or compound the difficulty of searching for housing in a competitive rental market. While more informal approaches to tenant screening can open doors for negatively credentialed renters in theory, these respondents’ experiences suggest that subjective or flexible tenant screening standards also exacerbate information asymmetries between landlords and applicants and raise the costs associated with what are already costly and arduous housing searches for this population.
“At This Point I Don’t Have a Choice”: The Costs of Informal Screening Practices in an Unforgiving Rental Market
The renters with eviction, criminal, and/or damaged credit histories interviewed for this study reported that their discrediting background credentials severely restricted their options for housing in what is already an unforgiving local market for low- and middle-income renters. Above and beyond the challenges associated with competing for an insufficient supply of affordable rental units, negatively credentialed renters must also confront the formidable task of finding landlords who exercise more flexible screening standards or forgo formal background screening altogether. The findings presented in this section help triangulate the reports of landlords and property managers by illustrating the consequences of the varied, contradictory ends to which landlord discretion is exercised for negatively credentialed renters.
While the level of discretion exercised by some independent landlords and property managers might unnerve officials at the Seattle Office of Civil Rights, renters with negative credentials were grateful for the existence of private rental housing providers who approached tenant screening in a more grey than black-and-white manner. At the same time, the lack of transparency associated with more informal screening methods posed serious challenges for housing seekers who sought to optimize their searches and minimize spending on application and screening fees by predicting which landlords might overlook their stigmatizing background records. Irrespective of the types of housing providers and screening procedures these respondents encountered during their housing search, the search process was an arduous and costly one.
These respondents unanimously reported strategically seeking out smaller private housing providers who they hoped would be able to exercise greater discretion and use more subjective approaches to screening rather than automatically rejecting them on the basis of clearly defined, but inflexible, rental policies. Here, a renter who had been previously evicted and had some older criminal convictions describes the process by which she learned to tailor her search methods in that manner:
I learned really early on that if you targeted like a small private landlord—just like a guy that answered the phone not like “Hello, thank you for calling Capital management” or something—I knew that they would have more discretion to let you in. And I knew that a lot of those places were just mostly interested in could you pay rent. I just learned early on that management companies have rules and … no matter how nice I was and personable and I cover up my tattoos and spoke really properly—I just knew that wasn’t going to work for me.
Other respondents described seeking out smaller landlords in the hopes of having an in-person conversation in which they could compensate for how bad they looked “on paper,” a strategy some were coached to pursue by their caseworkers. Here, a respondent with a criminal conviction record describes an instance in which that approach resulted in a housing opportunity:
I met [a landlord] who really appreciated me being up front from the beginning saying I’m a recovering alcoholic and I’d been sober for X amount of years and I have a history. I showed it [criminal record] to him actually because I had it printed out from one of my applications. He really appreciated my honesty and I could’ve moved into an apartment there. Very nice man.
For others, however, the ambiguity of independent landlords’ rental standards made it very difficult to identify which housing providers would be receptive to hearing their “side of the story” and seriously consider their application. These respondents reported rarely encountering explicit qualification criteria or receiving substantive explanations for why their rental applications were rejected if they received any response at all. Though many respondents recounted trying to ascertain whether their negative credentials would disqualify them before submitting a rental application and paying the associated fees, few landlords were willing to entertain such pre-application inquiries. These features of more flexible or informal approaches to tenant screening compounded the significant costs that these respondents reported incurring throughout the housing search process, which for most respondents in this category was a prolonged and stressful one.
The experience of one respondent represents a stark case of the experiences that were shared by many of the renters interviewed for this study as they navigated Seattle’s tight rental market at a distinct competitive disadvantage. Common features of these respondents’ housing search experiences included the struggle to effectively allocate limited resources during the search process, being relegated to substandard housing, and the chilling effect that the often emotionally and financially draining housing search process had on respondents’ willingness to move in search of better housing or seek legal redress in cases of rights violations. This respondent recounts her experience looking for an apartment after having her credit wrecked by the medical debt that she incurred undergoing experimental cancer treatment without insurance:
Every time that you try to go to look at a place, they want you to fill out an application and it costs money. So when you’re thinking about $50 per application, any money that you have saved up depletes really fast. Every time you go to apply for some place you have to go through this whole thing then they’ll come back and said, “Well, you have issues.” I told them I had issues. I would tell them I’m a cancer survivor and that I was in treatment for a year and a half. … I had good rental history. I’ve never been late.
She estimated that her search lasted about four months and that she spent roughly $4,500 on screening and background check fees during that period. When a friend’s referral finally got her in the door at small apartment complex, she was eager to sign a lease even though it was evident that the apartment did not meet her standards. She did not learn until after moving in that the apartment was not just substandard but posed grave threats to her health as she was recovering from respiratory cancer and the unit was infested with mold. She explains why she feels she is trapped in this dangerous housing situation:
At this point I don’t have a choice. I feel like I’m a victim in the situation because if I want to move I have to pay $1,200 [to break the lease]. … The other thing is how hard is it going to find another place. After what I’ve been through it’s not like I want to go through that again.
Coupled with landlords’ often ambiguous screening procedures and standards, negatively credentialed renters’ acute awareness of their own deficiencies in the rental market compound the existing challenges associated with detecting housing discrimination and mobilizing the law in response to suspected rights violations. Some respondents strongly suspected that racial discrimination was contributing to the high rates of rejection they encountered in the rental market, but, given the vague responses they received from landlords who rejected them in favor of other applicants, they could not pinpoint any concrete evidence of illegal discrimination or seek relief from antidiscrimination law. One respondent describes her long and unsuccessful search for rental housing as an African American woman with an eviction record and her difficulty in distinguishing illegal discrimination on the basis of race from lawful discrimination on the basis of ostensibly race-neutral rental criteria:
There’s got to be one person out there that would bend or break, but there’s really not. I feel like a lot of it is discrimination. I asked the guy, “What disqualified me?” And he said, “Oh, everything looked good. Your salary looked good…. I can’t remember if they applied along with you.” And so, I just asked him, “Is it the color of my skin?” And he got quiet, and, “Well, I’ll tell you what. I’ll have another unit available in June.” And I’m like, “June? Are you serious?” C’mon don’t pull my leg, I’m homeless, you know?
A grueling and costly housing search experience may undermine the willingness of negatively credentialed renters to avail themselves of legal protections, even though this population may be uniquely vulnerable to illegal discrimination given its overlap with groups protected both by federal fair housing laws and local laws barring source-of-income discrimination. Another respondent remarked that, while she would otherwise be inclined to challenge landlords who reject voucher recipients in violation of Seattle law, the difficulty of finding housing with both a housing voucher and a criminal record discouraged her from doing so:
I’ve seen it on Craigslist, “We don’t accept Section 8.” I almost feel like writing them and saying, “You should keep that to yourself.” I would just call them and ask them [if they accepted vouchers] and it was just no. I had enough going against me that I wasn’t going to say “Equal housing!”
The disempowering effects of the housing search for negatively credentialed renters may have broader ramifications for the efficacy of tenants’ rights or antidiscrimination laws since the enforcement of those protections largely falls on the shoulders of those whose rights have been violated. While exclusionary or capricious tenant screening practices certainly make the housing search process a more grueling one for this population, housing access and stability for negatively credentialed renters is also undermined by a system of housing provision that makes such renters reliant on private landlords with whom they are at a marked power disadvantage. As I describe in the discussion below, this power imbalance stems not only from the information asymmetries created by informal or subjective screening practices but also from the contemporary political economy of rental housing.
SUMMARY AND DISCUSSION
Amidst acute nationwide rental affordability and insecurity crises, landlord practices have come under renewed legal scrutiny. Under pressure to address growing housing insecurity and homelessness, urban policy makers have recently employed a variety of policies to regulate the private rental market. Such efforts have drawn on traditional tools like rent control and just-cause eviction laws as well as innovations in antidiscrimination law that restrict exclusion on the basis of facially neutral status characteristics. While each of these policies have attracted popular and academic debates regarding their merits, law and society scholarship offers especially relevant frameworks for understanding the transformative possibilities and limits of antidiscrimination law. In contrast with the large body of literature on the effects of antidiscrimination law in the workplace, sociolegal scholarship on fair housing law has largely focused on legal doctrine and enforcement mechanisms rather than the social terrain onto which the law is imposed. But at a time when a reinvigorated sociology of housing has brought attention to the central role of the rental housing market in shaping patterns of disadvantage, understanding the broader social context in which fair housing laws play out is particularly important. This study advances the understanding of antidiscrimination law in practice by bringing empirical light to an understudied, but consequential, site of contemporary stratification. Its findings illuminate how the distinct political and economic features of the modern rental housing market shape the significant challenges associated with regulating landlords from a civil rights framework. In the following sections, I summarize the central findings of the Seattle case study and discuss how they comport with, and diverge from, existing sociolegal scholarship on antidiscrimination law in practice. I then describe the study’s limitations and identify multiple avenues for future research addressing questions raised by my findings. I conclude by discussing some of the study’s policy implications beyond antidiscrimination law.
The descriptive picture constructed by this case study reveals multiple practical difficulties associated with regulating the decision-making powers of individual landlords who, to date, have been afforded considerable freedoms to screen and select tenants at their discretion. First, the findings suggest that the implications of landlord discretion for equitable housing access are more complicated than traditional understandings of discrimination imply. Rental industry experts and spokespersons articulated the conventional wisdom that excess discretion is antithetical to the letter and principles of fair housing law. By contrast, independent landlords and property managers defended their perceived rights to assess and choose tenants in the manner they see fit so long as it is not demonstrably discriminatory. These respondents maintained that subjectivity is a necessary and inevitable dimension of the tenant screening process for small-scale rental housing providers. While industry spokespersons suggested that landlords have adopted practices since the FHA’s passage that ensure rental applicants are evaluated uniformly and in accordance with clearly defined criteria, landlords and property managers reported using fairly subjective and informal approaches to screening rental applicants. Though none of this study’s respondents described using their discretion to discriminate against groups protected by fair housing laws, experimental research makes clear that discretion in tenant screening allows landlords to apply rental standards in a discriminatory manner (Massey and Lundy Reference Massey and Lundy2001; Seattle Office of Civil Rights 2012, 2015; Cohen Reference Cohen2016). At the same time, discretion affords independent landlords the latitude to rent to applicants with imperfect criminal, credit, or rental histories. It is precisely that latitude that attracts negatively credentialed renters to the independent sector of the rental industry, where they hope landlords will exercise more fungible, and possibly merciful, screening standards. In practice, however, the relative flexibility of smaller landlords did little to mitigate the formidable challenges renters with stigmatizing background records encounter when searching for housing in a competitive rental market. Furthermore, the lack of transparency that often characterizes more discretionary and/or bespoke approaches to tenant screening can compound the considerable material and psychic costs associated with housing searches for this population.
Second, while the broad discretionary powers enjoyed by agents in the independent sector of the rental industry have varied and indeterminate consequences for negatively credentialed renters, the commitment to retaining discretion in the face of new regulation has more unambiguously negative implications for that population’s ability to access housing. This study’s findings suggest that such steadfast commitments may frustrate renewed legal efforts to regulate tenant screening by motivating modes of legal adaptation that would clearly undercut the objectives of those policies. For example, some respondents described their plans to raise their minimum credit and income-related admissions criteria or stop publicly advertising vacancies in order to maintain the “quality” of their applicant pools and circumvent Seattle’s “First-in-Time” and BTB law. BTB policies may narrow the grounds on which landlords may lawfully reject an applicant, but they do not create a positive obligation for landlords to rent to those with stigmatizing traits like criminal histories. As such, even landlords who are subject to far-reaching forms of BTB policies like Seattle’s retain many ostensibly race- and gender-neutral bases on which to exclude undesirable applicants. Although stringent income and credit criteria may have discriminatory impacts on par with exclusionary criminal history standards (Wu and Birnbaum Reference Wu and Birnbaum2007; Chetty et al. Reference Chetty, Hendren, Jones and Porter2018), they are much harder for critics to assail from a civil rights perspective since they are seen as being closely linked to a tenant’s ability to fulfill their most important lease obligation: paying rent. The backlash among landlords to such policies may be particularly pronounced given that fair housing law in practice has long afforded them considerable discretion to screen and select tenants as they see fit, and they staunchly defend their perceived legal right to exclude unwanted applicants.
These findings broadly underscore lessons from sociolegal scholarship regarding the indeterminate and sometimes counterproductive effects of legal efforts to advance equity by regulating the decision-making powers of individual agents. The findings regarding landlords’ legal adaptation strategies comport with organizational and social-psychological research in the employment setting demonstrating that policies that either restrict managerial discretion or their access to candidate information can provoke behavior that undermines the equity goals of those policies (Dobbin, Schrage, and Kalev Reference Dobbin, Schrage and Kalev2015; Agan and Starr Reference Agan and Starr2017; Doleac and Hansen Reference Doleac and Hansen2016) as well as recent sociological research documenting the extent to which landlords pass on the costs of regulation to their tenants (Greif Reference Greif2018; Bartram Reference Bartram2019). In line with sociolegal arguments regarding the limitations of compliance standards for antidiscrimination law that focus on institutional decision-making processes rather than measurable effects or outcomes (Pedriana and Styrker Reference Pedriana and Stryker2017), recent tenant screening regulations create new rules for landlords’ screening and selection procedures but, ultimately, do not mandate who landlords select as renters. As such, private rental housing providers enjoy a host of options for modifying, or at least appearing to modify, their decision-making procedures without fundamentally changing the outcomes of those decisions.
This study also offers new insights for sociolegal scholarship on antidiscrimination law in practice and the legal regulation of discretion. The fuller picture that this study constructs of tenant screening in a landlord’s market helps illuminate how the distinct political and economic features of the rental housing market shapes: (1) the manner in which landlord exercise discretion; (2) the housing barriers encountered by negatively credentialed renters; and (3) opportunities for legal adaptation strategies on the part of landlords that undermine new civil rights policies. Urban policy makers interested in reducing screening-related barriers to housing are tasked with reforming landlord behavior following a decade of unprecedented growth in rental housing demand and in an era in which the public sector does little to control rising rental costs or directly assist rent-burdened households (Joint Center for Housing Studies 2017).Footnote 12 This economic and policy context exacerbates the power imbalance characteristic of the landlord-tenant relationship and the even starker power disparity between landlords and housing seekers with stigmatizing background records. My findings point to at least four specific consequences of that imbalance in Seattle’s landlord’s market.Footnote 13 First, while flexible standards enable independent landlords to use their discretion to egalitarian ends in theory, a very competitive rental market reduces incentives for landlords to open their doors to “imperfect” rental applicants given ample opportunities to select tenants with untarnished background records and/or higher incomes. Under such conditions, the broad discretion enjoyed by landlords may simply reinforce their power to choose the tenants they prefer rather than meaningfully improve the housing prospects of negatively credentialed renters.Footnote 14 Second, a tight market in which more affluent renters compete with poorer applicants for housing enables landlords to adopt the type of exclusionary practices that many of these respondents indicated they would take up in an effort to circumvent new laws, such as raising credit and income-related criteria. Third, those market conditions intensify information asymmetries between landlords and applicants by facilitating landlords’ ability to obscure the bases on which they reject tenants (that is, credibly attributing tenant selection decisions to the preference for a more qualified applicant). Fourth, the grueling and disempowering experience of searching for private rental housing from a position of extreme competitive disadvantage may leave negatively credentialed renters particularly disinclined to challenge illegal screening practices or mobilize new fair housing laws.
The traditional weaknesses of fair housing laws have also amplified landlord-tenant power imbalances and have distinct implications for sociolegal understanding of contemporary antidiscrimination law in practice. In the half-century since its enactment, the FHA has imposed limited meaningful oversight over landlords in practice, particularly in the decentralized independent sector of the rental industry. This legacy might help explain the prerogative expressed by many of the landlords interviewed for this study and even a few of the renters—namely, that landlords have the legal rights and economic imperatives to protect their investments by selecting the “best” possible tenant by any means they see fit, so long as their screening and selection procedures are not patently discriminatory. As such, the FHA has not compelled landlords to abandon informal or subjective approaches to tenant screening or to develop the sorts of formal legal compliance structures that employers, even small ones, have under Title VII (Dobbin and Sutton Reference Dobbin and Sutton1998). Given sociolegal scholarship on the symbolic functions of compliance structures and the extent to which they preempt meaningful judicial scrutiny into employer practices, their absence in the housing context does not necessarily undermine the effective enforcement of existing or future fair housing laws (Edelman Reference Edelman1992; Edelman et al. Reference Edelman, Krieger, Eliason, Albiston and Mellema2011). However, judicial deference toward landlord’s screening standards (Gordon Reference Gordon2006; McCormack Reference McCormack1986) and property owners’ rights to exclude entrants (Strahilevitz Reference Strahilevitz2005) may stymie legislative efforts to go beyond creating new procedural rules for tenant screening and regulate tenant selection outcomes.
This case study helps remedy the dearth of empirical sociolegal scholarship on landlord practices and brings a political economy perspective to the study of fair housing law in action. The generalizability of these findings is necessarily limited by the single-city case study design, the reliance on interview methods, and the timing of data collection for this study, which took place after the proposal but before the implementation of Seattle’s new tenant screening regulations. As such, this study is not a formal evaluation of the outcomes or efficacy of those policies and underscores the need for more systematic future study into the effects of new tenant screening policies. Future research could be geared toward determining whether and how landlords’ screening criteria and procedures are reshaped following the implementation of new tenant screening regulations in Seattle or elsewhere and, in particular, whether landlords adopt the legal adaptation strategies described by this study’s respondents in an effort to retain control over tenant selection. Future studies might also deploy experimental methods to investigate how often landlords use flexible or informal screening standards to offer second chances to renters with tarnished backgrounds and the types of rental applicants that are most likely to benefit from landlords’ leniency. Recent research in the employment context also raises important questions regarding the consequences of BTB policies for racial equity, as two recent studies found that the enactment of policies restricting employers’ access to criminal history was associated with an increase in statistical discrimination against black job seekers (Agan and Starr Reference Agan and Starr2017; Doleac and Hansen Reference Doleac and Hansen2016; but see Craigie Reference Craigie2020). Beyond evaluating the extent and nature of landlord compliance with new tenant screening laws within jurisdictions, future comparative research could also exploit variation in metropolitan housing market characteristics (that is, rental vacancy rates, the degree of affordable housing scarcity, corporate versus independent ownership of rental housing) in order to more systematically investigate what structural features of urban housing landscapes mean for the efficacy of new fair housing regulations.
This study’s findings also point to relevant research questions related to two groups whose roles in mediating the effects of new fair housing laws were not directly examined in this study: corporate rental housing providers and tenant screening companies. In the twenty-first century, business entities have assumed a growing market share of the private rental industry, which has long been dominated by individual investors in the United States (Kolomatsky Reference Kolomatsky2017). The mass purchases of single-family homes by financial firms-turned landlords in the wake of the foreclosure crisis has attracted some recent attention from journalists and researchers (Fields Reference Fields2014; Dezember and Kusisto Reference Dezember and Kusisto2017; Burns Reference Burns2018; Raymond et al. Reference Raymond, Duckworth, Miller, Lucas and Pokharel2018), who suggest that these owners are processing evictions at significantly higher rates than traditional landlords in ways that reproduce the racial and ethnic inequities of the foreclosure collapse (Pfeiffer et al Reference Pfeiffer, González, Ong and Pech2019). Meanwhile, the recent revival of sociological research on landlord practices has focused on independent and “mom-and-pop” landlords, reflecting these landlords’ outsized roles in the housing markets of impoverished urban neighborhoods (Rosen Reference Rosen2014; Desmond Reference Desmond2016). As such, little scholarship to date has directly interrogated what the corporate consolidation of the rental housing industry might mean for tenants or, more specifically, how ownership type impacts landlords’ compliance with fair housing laws. My findings offer a few second-hand insights into the practices of corporate housing providers. Negatively credentialed renters report avoiding larger rental companies on the assumption (or experience) that corporate owners exercise more inflexible and demanding screening criteria. Meanwhile, some rental industry respondents suggested that new tenant screening regulations impose less of a cost upon corporate housing providers since they have the financial wherewithal to assume greater risks and the organizational infrastructure to implement the mandates of the HUD Guidance (2016) or BTB laws without sacrificing effective fair housing compliance. One might take this characterization to mean that corporate housing providers will implement new fair housing regulations more faithfully than their independent counterparts. However, sociolegal work on legal endogeneity raises questions about whether housing providers with greater organizational capacity would simply institute formal structures to signal symbolic compliance with the new policies without meaningfully changing the tenant population they serve (Edelman et al. Reference Edelman, Krieger, Eliason, Albiston and Mellema2011).
The BTB movement and recent proliferation of policies restricting landlords’ use of background check information also raises pertinent questions about the ambiguous legal mandates that these policies create for third-party consumer reporting agencies that package and sell administrative data. While many BTB policies merely require postponement of criminal background checks until a conditional job or housing offer is made, Seattle’s Fair Chance Housing Ordinance (2017) expressly prohibits landlords from considering criminal history information (except from sex offender registries), and recently enacted ordinances in Portland and Minneapolis put specific limits on landlords’ use of eviction and criminal records. Seattle’s law puts the onus on landlords to restrict their own access to criminal history information but may also create liability for tenant screening companies.Footnote 15 This situation raises interesting questions about the political and legal construction of social problems, including why policy makers in the United States have targeted landlords and employers in their efforts to mitigate the negative impacts of background screening, but have been slower to strengthen regulations on the commercial dissemination of personal background records (Jacobs and Larrauri Reference Jacobs and Larrauri2012; Jacobs Reference Jacobs2015). Findings from this study also shed light on the considerable technical difficulties associated with effectively regulating the dissemination of background information online (Corda and Lageson Reference Corda and Lageson2019), which has seriously jeopardized the efficacy of expungement procedures (Wayne Reference Wayne2012). While some of the rental industry experts in this study argued that BTB policies were unnecessary in Seattle because state law already prohibits consumer reporting agencies from releasing criminal history information over seven years old,Footnote 16 multiple renters maintained that they had been denied housing on the basis of convictions over a decade old. This discrepancy could result from noncompliance on the part of screening companies or ambiguity in how credit-reporting laws define look-back periods.Footnote 17
Finally, beyond its implications for the particular varieties of tenant screening regulation under study, this research offers a new perspective on the costs of a national housing policy regime that leaves most renters, including voucher recipients and those with tarnished backgrounds, at the mercy of private landlords who have little incentive in a tight housing market to open their doors to prospective tenants who they deem risky or undesirable. This study’s findings thus underline earlier critiques of a housing system in which the state takes a backseat to the provision of housing for populations who are not well served by the private market,Footnote 18 a sentiment that was echoed by some of this study’s rental industry respondents.Footnote 19 The sustained disinvestment in public housing means that the private rental market is an increasingly consequential force in the lives of the nation’s low- and moderate-income renters (Desmond Reference Desmond2016). For those concerned about the extent to which modern background screening jeopardizes housing access and equity, those conditions necessitate a renewed policy focus on the private rental industry. However, this study suggests that, by increasing competition for scarce affordable rental housing in the private market, the state’s retreat from low-income housing provision may frustrate new legal efforts to combat discrimination and reduce screening-related barriers to rental housing. In illuminating the contemporary challenges associated with using antidiscrimination law to transform landlord behavior, this study underscores the policy imperative to increase the supply of permanent, affordable rental housing and reduce the degree to which marginalized renters’ housing fates are tied to the difficult to surveil and regulate practices of for-profit landlords.
