To “Otherwise Make Unavailable”: Tenant Screening Companies’ Liability Under the Fair Housing Act’s Disparate Impact Theory

By Shivangi Bhatia

Tenant screening companies present information to housing providers on prospective tenants’ criminal and eviction histories in the form of background screening reports. These screening reports disproportionately impact racial and gender minorities. Two opposing views exist on whether courts should interpret the Fair Housing Act to cover the discriminatory practices and policies of tenant screening companies. Some believe that background screening reports are a vital part of the housing industry, while others criticize them for their inaccurate, misleading, and discriminatory nature. This Note proposes that, moving forward, courts should interpret § 3604(a) and § 3604(b) of the Fair Housing Act to allow for tenant screening liability. Looking to the Seventh Circuit’s decision in NAACP v. American Family Mutual Insurance Co., a broad interpretation of the Fair Housing Act that combats the disparate impact of background screening reports is in line with judicial precedent, the Act’s legislative history, and the U.S. Department of Housing and Urban Development’s administrative guidance.