Yvette N.A. Pappoe, The Scarlet Letter “E”: How Tenancy Screening Policies Exacerbate Housing Inequity for Evicted Black Women, Boston U. L. Rev. 103 (2023) Abstract Below:
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.
Poverty Law 