Document Type

Article

Publication Date

2023

First Page

270

Journal Title Abbreviation

Boston Univ. Law Rev.

Abstract

The COVID-19 pandemic resulted in an unprecedented health and economic crisis in the United States. In addition to more than nine hundred thousand deaths in the United States and counting, another kind of crisis emerged from the pandemic: an eviction crisis. In August 2020, an estimated thirty to forty million people in America were at risk of facing eviction by the end of the year. Black women renters faced a higher risk of losing their homes than other groups. At the onset of the pandemic, the federal government implemented eviction moratoria to prevent the evictions of tenants who were unable to pay their rent. However, the temporary nature of the moratoriums had little to no impact on the persisting effects evictions have on Black women seeking future housing. Black women were the most affected by evictions before the pandemic but were devastatingly impacted throughout the pandemic and beyond. The pandemic brought this oft forgotten group’s plight to the forefront. Using an intersectional lens, this Article seeks to analyze the ongoing eviction crisis to highlight who is most burdened and why. Widespread concern has been expressed about the discriminatory effects, especially on Black and Brown people, of landlords’ use of criminal records in making rental decisions. This Article is the first to contextualize similar concerns about the use of eviction records and its disparate impact on Black women. Having an eviction record, much like having a criminal record, blacklists tenants from securing future housing. Renters with mere eviction filings—not final eviction orders—on their records face the harsh collateral consequences of eviction. As others have, I refer to this stigma that follows a person with a record of an eviction proceeding on their public record as the “Scarlet Letter E.” Landlords regularly displace or blacklist Black women who have prior eviction records, thereby preventing them from accessing future available housing units. To assist with tenant screenings, landlords typically hire tenant screening companies to conduct background reports, which typically compile information related to a tenant’s criminal history, residential history, credit score, and eviction history. Landlords’ use of these reports disproportionately impacts Black women who have an eviction filing on their record and prevents them from securing public and private housing. This Article is the first to analyze the disparate impact of the use of eviction filings in rental housing decisions under the Fair Housing Act (“FHA”). It argues that blanket tenant screening policies are arbitrary, artificial, and unnecessary barriers that operate to invidiously discriminate against Black women and, therefore, violate the FHA. It then recommends areas for reform, such as eviction record expungement, sealing laws, and “ban the box” initiatives, all of which draw heavily on work related to the use of criminal records in tenant screening. In addition, this Article suggests a novel interpretation of the FHA by both the Department of Housing and Urban Development (“HUD”) and the courts that would hold landlords and the tenant screening companies that produce these tenant screening reports liable under the FHA for the disparate impact that these policies and practices have on Black women.

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