Screening is where most fair housing exposure starts, and it is also the part of leasing you can make boring and defensible in an afternoon. Two federal things moved in the past year: HUD's General Counsel withdrew a stack of fair housing guidance on September 25, 2025, including the 2016 criminal-records memo, and HUD has proposed removing its disparate-impact regulation outright, with comments on the supplemental proposal open until October 9, 2026. The statute itself did not change. What follows is general information, not legal advice — confirm your criteria with local counsel before you use them.
Start with written criteria, applied in one order, to everyone
The Fair Housing Act covers race, color, national origin, religion, sex, familial status and disability, per HUD and 42 U.S.C. 3604.
HUD's regulation is unusually specific about screening. 24 CFR 100.60(b)(4) makes it unlawful to use "different qualification criteria or applications" — it names income standards, application requirements, application fees, credit analysis and approval procedures — on a protected basis. 24 CFR 100.65 does the same for deposits and lease terms. Both are written as "because of" a protected characteristic, so the question is why two applicants were treated differently — which is exactly what an undocumented, case-by-case process makes hard to answer.
Separately, 24 CFR 100.500 still allows liability for a practice's discriminatory effect even without discriminatory intent, under a three-step burden test: the complainant shows the effect, the housing provider shows the practice is necessary to a substantial, legitimate, nondiscriminatory interest, and the complainant may still win by showing a less discriminatory alternative. HUD proposed to remove that regulation on January 14, 2026 and has not finalized it. Until it does, the rule is the rule.
The operational version fits on one page:
| Write down | Not this |
|---|---|
| Income threshold, and whether it applies to the full rent or the tenant's portion | "Enough income" |
| Credit score floor, plus which derogatories matter | "Good credit" |
| Rental-history rule with a stated look-back | "No evictions" |
| Occupancy standard, by unit, stated per bedroom | Case-by-case judgment |
| Documents accepted as proof of income | Whatever the agent asks for |
| The order criteria are evaluated in | Whatever surfaces first |
Criminal records: the guidance is gone, the exposure is not
HUD's April 4, 2016 guidance on criminal records is among the documents the General Counsel said "no longer express the official legal opinion" of that office, effective September 25, 2025. That memo withdrew HUD's framework. It did not repeal the statute, and it did not touch 24 CFR 100.500.
Three things still constrain you:
- The FTC's current guidance for landlords states plainly that a blanket policy of refusing to rent to anyone with a criminal record may violate the Fair Housing Act (FTC).
- The FCRA limits what can appear in the report at all. Under 15 U.S.C. 1681c(a), arrest records and other adverse items more than seven years old are generally excluded, bankruptcies more than ten years old are excluded, and records of convictions are not subject to that seven-year cutoff. If your vendor is surfacing a decade-old arrest, that is a report problem before it is a screening problem.
- The drug carve-out in HUD's exemption regulation is narrow. 24 CFR 100.10(a)(4) permits acting on a conviction for illegal manufacture or distribution of a controlled substance, and 24 CFR 100.202(c) permits asking every applicant about current illegal drug use and about that specific conviction type. It does not bless a general criminal-history ban.
A defensible policy in this posture: category-specific look-back windows tied to a stated tenancy interest, no automatic denial on an arrest alone, and a documented opportunity for the applicant to submit context before you decide. Many states and cities go further — capping look-back periods, requiring an individualized assessment, or requiring a conditional offer before any criminal check. Those are local rules, not national law, and they are the first thing to check with counsel.
Source of income and the voucher math
Source of income is not in the federal protected-class list at 42 U.S.C. 3604, and HUD's General Counsel withdrew the November 4, 2024 source-of-income guidance in the same September 2025 memo. HUD's own Housing Choice Voucher guidebook chapter, dated April 2025, notes that public housing agencies may be subject to state or local statutes prohibiting discrimination on other bases, such as source of income, and that the chapter addresses only federal requirements. That is the pattern: federal silence, patchwork state and local coverage.
Where coverage exists, the income multiple is usually where the argument lands. A rule requiring income of three times rent behaves very differently applied to the full contract rent than applied to the tenant's share after a voucher. No federal rule sets the multiple or tells you which number to use. Pick one, write it into the criteria, and apply it the same way to every applicant — then have counsel confirm it against your state and city rules, which vary.
Disability: accommodations survive, animal guidance is being rewritten
24 CFR 100.204 makes it unlawful to refuse a reasonable accommodation in rules or policies where needed to give a person with a disability equal opportunity to use and enjoy a dwelling; the regulation's own example is waiving a no-pets policy for a trained service dog. 24 CFR 100.202(c) bars asking whether an applicant has a disability or how severe it is, while permitting questions — asked of everyone — about ability to meet the requirements of tenancy.
Animals are in flux. FHEO's enforcement guidance dated May 22, 2026 confirms that the 2020 and 2013 assistance-animal notices were rescinded on September 17, 2025, and states that FHEO will find reasonable cause only where the animal is individually trained to do work or perform tasks directly related to the person's disability. HUD says it intends to run notice-and-comment rulemaking on the subject.
Read that memo for what it is: a change in how HUD spends its enforcement budget. The memo itself notes it does not address Section 504 or ADA complaints, and that a complainant may still file a private civil action within two years under 42 U.S.C. 3613(a)(1)(A). State and local disability law may also require more. Denying a request because HUD has deprioritized the category is not the same as denying it lawfully — this is a counsel question, per request.
The FCRA notice a denial triggers
If a tenant screening report played any part in the decision, the FCRA applies. Per FTC guidance and 15 U.S.C. 1681m(a):
- Adverse action is broader than denial. It includes requiring a co-signer, requiring a larger deposit than another applicant would pay, and charging higher rent.
- The notice is required even if the report was a small part of the decision.
- It must give the consumer reporting agency's name, address and phone number; a statement that the agency did not make the decision and cannot explain it; and notice of the right to dispute the information and to get a free copy of the report from the agency within 60 days.
- Oral notice is permitted; the FTC says written notice is best practice, and it is the only version you can later prove.
- If a credit score influenced the decision, you owe an additional written or electronic disclosure: the score, its source, the date, the score range, and the key factors that hurt the score, in order of importance.
Before the report, the FTC also expects you to have a permissible purpose and to certify to the screening company that you will use the report only for housing purposes.
Records: what to keep, and how to destroy it
An aggrieved person has one year to file a complaint with HUD under 42 U.S.C. 3610(a)(1)(A)(i), and two years to bring a civil action under 42 U.S.C. 3613(a)(1)(A). Those two windows are the floor for how long the application file, the criteria in force on that date, the decision log and a copy of the adverse action notice are worth keeping. State retention requirements differ, so set the period with counsel rather than guessing.
Disposal is its own federal rule. 16 CFR 682.3 requires reasonable measures against unauthorized access when you dispose of consumer information, and gives burning, pulverizing or shredding paper, destroying or erasing electronic media, and using a vetted destruction contractor as examples.
What to do this week
- Put the criteria on one page, with numbers, and date it. Whatever you cannot state as a number, state as a written rule with a stated look-back.
- Fix the evaluation order and follow it for every applicant — income, then credit, then rental history, then any background check — so nobody's file is worked in a different sequence.
- Log a reason for every denial that maps to a line in the written criteria, and attach the adverse action notice you sent to the same file.
- Open your screening vendor's settings and read the actual thresholds: the look-back windows, whether it returns a pass/fail recommendation you are effectively adopting, and whether it is surfacing items outside the FCRA reporting windows.
- Write a retention period and a destruction method into the policy, covering both the paper file and whatever sits in the screening platform.
- Take the finished page to local counsel and ask one question: which state or city rules — source of income, criminal look-back, conditional offers, assistance animals — change any line on it?
Bottom line
The federal floor has not moved much: consistent written criteria, a real reason for every denial, an FCRA notice when a report influenced the outcome, and files you can still produce a year or two later. What has moved is HUD's interpretive layer, which is thinner than it was a year ago and actively under rulemaking. That cuts both ways — less federal guidance to follow also means less federal guidance to point at when a complaint arrives.
This is general information, not legal advice. Screening law varies by state and locality, statutes and regulations change — the disparate-impact comment period alone runs to October 9, 2026 — and cities regularly add protections the federal Act does not. Have local counsel review your criteria, your denial letters and your retention schedule before you rely on them.