Susan Mason makes no bones about the fact that she served time.
The executive director of What’s Next Washington and member of the FARE Housing Coalition went to prison 14 years ago for 15 months. Despite Mason’s subsequent clean record and steady paycheck, landlords still look askance when she applies for housing in Seattle’s overheated market.
“I don’t even apply with property management companies,” Mason said. “They take your money and tell you ‘yes.’ It’s never a ‘yes.’”
Anybody who has applied for an apartment in recent memory knows the drill. Fill out an application, hand over a cashier’s check, pray to whatever higher power you hold dear that your late payment on an auto loan didn’t push your credit score down too far to raise eyebrows. Feel confident that you have a leg up on millions of Americans because you’ve never seen the inside of a courthouse or jail cell, and your background check makes you look like an adult Pollyanna.
Prepare for the shine to come off that halo.
Background checks used for tenant screenings in the rental housing industry are notoriously inaccurate.
Background checks used for tenant screenings in the rental housing industry are notoriously inaccurate. They use algorithms to scour public databases for a potential tenant’s credit history and criminal background, but rarely fact check the information. Results are compared to a landlord’s rental criteria, and sometimes it’s just a thumbs up or thumbs down that gets transmitted rather than the actual report.
The outcome hurts both sides of the transaction: Good tenants are routinely denied housing for offenses they did not commit, or that shouldn’t appear on a background check at all.
To top it off, there’s no government agency in Washington state that polices the industry, leaving it up to the individual to discover and correct errors, or even violations of law, themselves.
In theory, a background check works like this: A landlord or employer submits information on the prospective tenant and a company delves into credit history and publicly available information to generate a report. The landlord then makes a decision on a prospective tenant based on that analysis.
That report should only include things like a credit score, a bankruptcy that’s less than 10 years old and any crimes committed within the last seven years.
That process is problematic, even if it were followed to the letter. In many cases it’s not.
“There are extraordinary rates of errors in these reports,” said Eric Dunn.
“There are extraordinary rates of errors in these reports,” said Eric Dunn.
Dunn is a staff attorney with the Center for Economic Justice at the Virginia Poverty Law Center. But before he moved, Dunn worked for more than a decade at the Northwest Justice Project in Seattle, where he got to know the ins and outs of background checks and tenant screenings very, very well.
“What I started noticing is that I could represent somebody and settle their case, or get it dismissed, and they would come back to me at some point and say, ‘I thought we won our case?’” Dunn said. “But they went to rent somewhere else and got turned down.”
Dunn began looking into background-check companies around 2005, when he started working for the Northwest Justice Project. When his clients returned to him, still unable to rent by dint of their background check, he began research that would lead him down a legal rabbit hole that, to this day, consumes much of his professional life.
“At the time, nobody was doing this type of stuff,” Dunn said. “There was one guy in New York City, Jimmy Fishman, who was handling these types of cases, but certainly nobody in the Northwest.”
Dunn found that automated background checks crawl through public databases to find information, but that the results can be inaccurate, inconsistent or redundant.
Take a hypothetical John Doe accused of committing assault. The courts record the charge, as does WATCH, the Washington Access to Criminal History database. If Mr. Doe pleads guilty to a lesser offense, like disorderly conduct, the court will recognize that change, but WATCH now has information on the original charge and the new plea.
If he’s sentenced to time in jail, Mr. Doe gets yet another record, this time in the corrections system.
The ultimate disposition of the charges aren’t necessarily recorded, so when Mr. Doe goes to a landlord hoping to rent an apartment, the background check turns up a rap sheet — an assault, disorderly conduct and jail time.
“A lot of times, computers scrape up all these records, and the computer is not able to distinguish which records relate to the same crime,” Dunn said.
The lack of discretion has ripple effects.
What if the courts found John Doe guilty of a more serious crime, for which he had to serve a 10-year prison sentence? By federal and state law, Mr. Doe’s record should be clear seven years after he leaves incarceration.
Washington routinely releases prisoners before they complete the full length of their sentence for good behavior and work programs, but the background searches don’t take that into account. Instead, a background check will turn up crimes seven years after the end of a sentence, meaning that a person could be frozen out of housing for years after they are released.
Hilary Young works for Pioneer Human Services, a housing provider that caters to people with criminal records and difficult backgrounds. With permission, she ran a background check on a Pioneer employee who’s worked with the organization for a decade as a test.
“He still has charges,” Young said.
Many computer-based searches automatically match records to birth date and name or something name-adjacent, but not an exact match.
Many computer-based searches automatically match records to birth date and name or something name-adjacent, a moniker close to the intended subject’s name, but not an exact match.
That’s how one pair of Dunn’s clients found their records saddled with an eviction for a home they never rented — a Glenn Patrick Thompson assumed the eviction history of one Patricia Thompson.
“It’s generated entirely by a computer,” Dunn said. “There’s no human being that looks at these things.”
It’s hard to overestimate the consequences of such mistakes: homelessness, desperation and new crimes born out of necessity that lead to a perpetuating cycle of incarceration.
And yet, finding and fixing blemishes on background checks requires vigilance on the part of the victim rather than the company that compiles the information. Like most injustices that require institutional change, the fight to protect tenants from the blind groping of artificial unintelligence plays out in Olympia and the courts.
Advocates encountered roadblocks in both avenues.
In 2012, the legislature passed a law requiring landlords to inform applicants why their tenancy was denied, followed by a 2013 measure that allowed victims of domestic violence to break their leases without retaliation from the landlord.
It was 2016, however, that rocked the system.
“This bill created first-of-its-kind ability for judges to mark an eviction record for limited dissemination,” said Michele Thomas, director of policy and advocacy with the Washington Low Income Housing Alliance. “[A tenant could] make a case that the eviction record isn’t fair, and shouldn’t deny them housing in the future.”
The legislation opened doors for a range of tenants, but especially those charged with an eviction, a major red flag for most landlords, who ultimately won their cases.
That wasn’t true when Dunn represented two clients, Ignacio Encarnación and Norma Karla Farias, before the King County Superior Court in 2014.
Encarnación and Farias lived in the same apartment for three years before a new owner bought it and decided to close the place down for renovations. Under law, the new owner had to honor existing leases, but filed an eviction against the couple anyway after they refused to go month to month.
The pair received remuneration for at least three months of rent and the new owner was sent packing, but Encarnación and Farias still had an eviction on their record, even though they prevailed in court. Dunn sued to remove their names from the court record, changing them to initials so that the eviction that wasn’t would not haunt them in the future.
That’s when things got exciting.
A court clerk named Barbara Miner refused to change the record, a move for which she was praised in The Seattle Times opinion section. The legal dispute that followed went all the way to the Washington Supreme Court, which decided in favor of Miner, but with an important caveat.
The courts did not rule in Dunn’s favor, but it left the door open for the Washington Legislature to fix the problem.
And, in 2016, the Legislature did just that.
Landlords can still find that information if they physically go to the courts and look, Thomas said, but the legislation removed the passive appearance of the eviction suit on a background check.
Of course, there’s a flaw: No agency in Washington state government enforces laws restricting the information included in background checks.
Of course, there’s a flaw: No agency in Washington state government enforces laws restricting the information included in background checks.“That’s the problem, the huge gaping loophole,” Thomas said.
Before 1985, also before widespread use of the internet, the Attorney General’s Office managed such cases. It was, Dunn recalls, the busiest section of the office. But then came Anthony Schwab.
Schwab and his wife bought up a number of poorly maintained properties in Seattle and rented them out inexpensively under one condition: the tenant accept them “as is.” That meant no maintenance, no complaints, no guarantee of livable conditions.
That clearly violated state law, and Schwab’s tenants took him to court, suing under the Consumer Protection Act. The judges hearing the case looked to the legislative history of the Consumer Protection Act and found that the Legislature had entertained an amendment that would make violations of the landlord-tenant law an immediate violation of the Consumer Protection Act.
The amendment did not pass, and the judges effectively removed the power to enforce landlord-tenant law from the Attorney General’s Office.
“It was a pretty bad decision,” Dunn said.
It’s one that has left Washington with little recourse except to hope tenants know their rights and will take the time, energy and expense to enforce them, or that screening companies will take the time, energy and expense to produce accurate reports.
That hope is unfounded.
Background checks, for housing and employment, constitute a $2 billion industry with more than 14,000 employees, according to IBISWorld, an industry analysis company.
Background checks, for housing and employment, constitute a $2 billion industry with more than 14,000 employees, according to IBISWorld, an industry analysis company. Roughly 39 percent of that demand comes from landlords, the rest from employers.
Background-check companies have no incentive to provide complete, accurate information. At between $30 and $40 a pop, their interests lie in the quantity of reports generated. Each — even records produced by the Washington Access to Criminal History — come with a disclaimer that inoculates them from blame.
That means that companies can produce inaccurate information, landlords act upon it believing it to be true and tenants get branded as problematic, and no one is held to account.
Business is only growing.
Property management companies don’t often screen tenants individually, they outsource to these background-check mills. They send nonpayment information to an attorney on retainer who files evictions in court, but likely doesn’t follow up if the eviction doesn’t pan out, leaving people with evictions on their record that may never go through.
Stephen White has seen the consequences.
White owns RentPrep, a background-check company that operates out of New York. White didn’t buy into the automation craze. His site boasts that it takes a person in his employ at least an hour to generate a report by hand. Each one is prepared by an employee certified by the National Association of Professional Background Screeners.
“We are an old-fashioned screening company,” White said. “We do it by hand, hand-compile each report, don’t trust the automated process of grabbing data, grabbing information.”
That pits White against a host of other companies without the same standards, but he’s competing for a different clientele, the smaller landlords and companies that demand higher quality product.
Landlords need to know information about their tenants, White said. A study by a major credit agency showed that a person with one eviction on their record was 2.5 times as likely to get another than a person with no evictions. But throwing up barriers without determining that the records match the tenant? That’s bad for landlords and people looking for housing.
It can happen to anyone.
White shares the county in which he lives with 76 other Stephen Whites, all of the same spelling. One is a sex offender. Another has several convictions.
“Individual landlords didn’t have access to good screening,” White said. “Out of the box, rubber stamp instant out-of-the-box solutions.”
On July 13, Seattle officials began a process that could give a helping hand to people with criminal records who are working to reintegrate and in need of a place to live.
Councilmembers Lisa Herbold and Kshama Sawant, with members of the Office of Civil Rights, unveiled new legislation that would further limit the ability of background-screening companies to divulge criminal history by cutting the “lookback” period to two years in most cases.
Advocates want that to be cut down to zero, something the Seattle Weekly reported that Herbold was open to.
Landlords, however, are not.
Small landlords already have so much to balance in Seattle, argued William Shadbolt. Forcing them to operate from a position of less information only puts them, their other tenants and their property at risk, he said.
Small landlords already have so much to balance in Seattle, argued William Shadbolt, a representative of the Rental Housing Association of Washington, a landlord advocacy group. Forcing them to operate from a position of less information only puts them, their other tenants and their property at risk, he said.
“We should be looking at the criminal justice system, not putting this on individual landlords,” Shadbolt said.
The Rental Housing Association offers screenings to its members, ranging from $25 to $45 a pop, depending on the kind of information requested. The organization uses record aggregation services, but also employs two people to go through the results to make sure the report handed to the landlord satisfies state and federal laws and does not erroneously associate records to the wrong applicant.
There is no statistical evidence linking a criminal history to a bad tenancy, and, as Dunn puts it, for “everybody who commits a crime, there has to be a first.”
Even studies used to back up a seven-year lookback period come with caveats: samples were taken from one city, at one moment in time. The authors themselves wanted more research to supplement the data, and have said as much in conferences and other public settings, Dunn said.
The stage is set, and Seattle has a recent history of passing renter-friendly legislation.
At the end of the day, this new regulation, like all the others, will be about enforcement with investigations conducted by the Office of Civil Rights. Whether or not they have the capacity to enforce this along with other council-driven mandates will be borne out in time.
Ashley Archibald is a Staff Reporter covering local government, policy and equity. Have a story idea? She can be can reached at ashleya (at) realchangenews (dot) org. Twitter @AshleyA_RC
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