Sex Offenders Are Not a Protected Class, Are They?
Written on November 19, 2014 by Lucas Hall, updated on October 30, 2017
I’ve met many landlords who are convinced that an applicant cannot be rejected based on a conviction as a sex offender.
When the subject comes up in conversation, they typically claim that their lawyer/brother/buddy said, “It’s against the fair housing laws.”
However, they’re never able to cite the statute or law that supports their claim.
This article is intended to explore the facts, examining the housing laws pertaining to sex offenders at a federal, state and local level.
With that said, this is not intended to be exhaustive or a substitute for qualified legal advice.
Federal Government
The Fair Housing Act
The Civil Rights Act (Fair Housing Act) of 1968, Sec. 804. [42 U.S.C. 3604], and all subsequent amendments, do not identify sex offenders as a protected class.
At a federal level, the only protected classes are:
- Race
- Color
- Religion
- Sex
- Familial Status, including having children or being pregnant
- National Origin, or
- Mental or Physical Disability
Housing and Urban Development (HUD)
In the Electronic Code of Federal Regulations (e-CFR), specifically 24 CFR 5.856, it mandates that sex offenders are prohibited from living in “federally assisted housing” (as defined in 24 CFR 5.100).
§5.856 When must I prohibit admission of sex offenders?
You must establish standards that prohibit admission to federally assisted housing if any member of the household is subject to a lifetime registration requirement under a state sex offender registration program. In the screening of applicants, you must perform necessary criminal history background checks in the state where the housing is located and in other states where the household members are known to have resided. (See §5.905.)
Though federally assisted housing is only a small percentage of the total housing in the United States, it sends a strong message when the federal government takes such a strong stance.
After all, convicted sex offenders pay taxes just like everyone else.
Sex Offender Registration and Notification Act (SORNA)
In 2006, the Adam Walsh Child Protection and Safety Act was signed into law by President George W. Bush.
The significance of the law is that it organizes sex offenders into three tiers and mandates specific requirements for each:
- Tier 1 offenders: Must update their whereabouts every year with 15 years of registration
- Tier 2 offenders: Must update their whereabouts every six months with 25 years of registration
- Tier 3 offenders: Must update their whereabouts every three months with lifetime registration requirements.
The Walsh Act also establishes the Sex Offender Registration and Notification Act (42 U.S.C.16911), abbreviated as SORNA, which requires U.S. jurisdictions (states and territories) to update their sex offender registration laws to conform with federal guidelines. States in noncompliance face a 10 percent penalty in their Bureau of Justice Assistance grant money.
State Governments
All 50 states and the District of Columbia require convicted sex offenders to register with their state, even if they have completed their sentence and have been rehabilitated.
Many states have laws that even restrict residency within a certain number of feet of a school or day care; however, these laws vary from state to state.
California Leads the Way
California became the first state to have a sex offender registration program in 1947. In 2006, the California Attorney General stated in an official report that sex offenders are not a protected class.
THE HONORABLE NICOLE M. PARRA, MEMBER OF THE STATE ASSEMBLY, has requested an opinion on the following question:
Does the prohibition against the unauthorized use of registered sex offender identifying information obtained from the California “Megan’s Law” Web site qualify registered sex offenders as a “protected class” for purposes of housing discrimination under the Fair Employment and Housing Act?
CONCLUSION
The prohibition against the unauthorized use of registered sex offender identifying information obtained from the California “Megan’s Law” Web site does not in itself qualify registered sex offenders as a “protected class” for purposes of housing discrimination under the Fair Employment and Housing Act.
Various state supreme court hearings have occurred over the years, including notable cases in Hawaii, Alaska, Missouri, and Florida, but most discuss the topic of retroactive application of the law, not whether it is currently applicable.
Local Governments
Each county must abide by federal and state legislation, but are allowed to add onto, or attempt to fight the top-down legislation. However few (if any) have succeeded in establishing sex offenders as a protected class.
Seattle Attempted to Fight
In 2010-2011, the Seattle Office for Civil Rights launched a campaign to make it easier for registered sex offenders, among others with arrest and conviction records, to find housing and employment.
After public backlash, the Seattle Office for Civil Rights scaled down the effort to exclude any specific mention of sex offenders from the campaign.
In a Q&A pamphlet, entitled “Proposed protections to end discrimination in housing and employment based on arrest/conviction record” the following question is answered:
Q. Would this mean that landlords would have to accept people with a record of violent or sexual offenses as tenants?
No. The proposal that we are exploring would prevent housing providers from discriminating against any and all applicants solely on the basis of a conviction or arrest. Applicants’ records would be evaluated on a case-by-case basis. If a landlord felt that an applicant’s record poses a threat to the safety of residents, s/he would still have the discretion to deny housing. Other places in the United States that have passed similar protections require landlords to look into the context of the conviction, the amount of time that has passed, and any rehabilitation that has occurred. The Seattle Office for Civil Rights would work with housing providers, community advocates and employers to develop similar rules.
Seattle has a long list of protected classes, and yet sex offenders are not included.
Protected Classes in Seattle:
- Age
- Ancestry
- Breastfeeding in a public place
- Color
- Creed
- Disability
- Gender identity
- Marital status
- National Origin
- Parental status
- Political ideology
- Race
- Religion
- Sex
- Sexual orientation
- Use of a Section 8 certificate
- Use of a service animal
- Military status or Veteran
In fact, Seattle’s Official Fair Housing Handbook, page 21, even clarifies that a history of sex offense does not qualify as a disability:
Under fair housing laws, the definition does not include:
- sex offenders
- current illegal drug users (however, fair housing laws do protect people who are recovering from substance abuse)
- those with convictions for the illegal manufacture or distribution of a controlled substance
This citing does not exclude sex offenders from having other legitimate and protected disabilities, it simply validates that the status as a sex offender is not a disability in itself.
Additional Resources
- National Sex Offender Public Website (NSOPW) – U.S. Department of Justice
- State-specific Registry Sites (NSOPW) – U.S. Department of Justice
- Guide to Fair Housing – It’s Your Right – U.S. Department of Housing and Urban Development
- The Fair Housing Act – U.S. Department of Justice
- “Megan’s Law” Website – State of California Department of Justice
- Sex Offender Registration – Wikipedia
- Adam Walsh Child Protection and Safety Act – Wikipedia
- Sex Offender Registration and Notification Act (SORNA) – Office of Justice Programs
Conclusion
Based on this research, I’ve come to the conclusion that while convicted sex offenders are indeed a specific class, they are not a protected class and do not have special rights and leniencies when being considered for housing.
Though there are notable tiers of offenses, confirming that some crimes are worse than others, the choice to commit a crime is exactly that, a choice. And with all choices, there are consequences.
As of yet, I have not been able to find a federal, state, or local law that identifies sex offenders as a protected class for purposes of housing discrimination under the Fair Employment and Housing Act.
Let’s Figure this Out Together!
I’m not a lawyer nor can I give legal advice. I am simply a landlord who wants to know what the housing laws say about sex offenders.
Though I’ve made a notable attempt at researching these statutes at multiple levels of government, I realize this research is not exhaustive.
If you know of a statute or law that supports sex offenders as a protected class, please let me know. I’ll add it to this article, and we’ll examine the evidence together.
Topics: Laws & Regulations, Screening
About Lucas Hall
Lucas is the Chief Landlordologist at Cozy. He has been a successful landlord for over 10 years, with dozens of happy tenants and a profitable income property portfolio.
Read more about Lucas's story.
65 Comments
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james
Well Said Vahall you hit the nail right on the head
Alain Garceau
Hi Lucas,
In Canada when you paid for your crime the story is over and should be the same here in U.S.
Canadian believe in rehabilitation and it works. Unfortunately there is no guarantee an offender of any crime will do it again after prison time or rehab but let give the player a second chance otherwise it can ruin many people’s chances to become good law abiding citizens by discriminating them over their past mistakes . How many times an offender must pay for his crime ? Why a Landlord has the ability to see their past sex offenses on a background check when it should be sealed when the case is closed ?George
I’m moving to another state, and everyone asks if I have a felony conviction including realtors. I
thought it was only for persons required to register address for certain offenses or their equal in
the jurisdiction moving to. Do I lie, take the chance a backround check will disclose this, then be
evicted for lying or be honest and get denied solely for 1 drug sale record now OVER 37 years old?
Like employers, landlords will give me any excuse except the truth so they won’t get sued.After moving I can then apply for my record to be expunged or sealed. Now not using social media
makes me suspicious/hiding something? This kind of BS has to stop, not offending again is reason
enough after all this time, and I have a right to privacy.Chris
What do we do with the Kids who got put on the list? Some states make any body on the list Lifetime, So if you were 10yo and got put on the list then you are to never have a home of your own? It don’t make any sense if you were under 18 or got tried in Family Court then you should not have to worry about being on the list or Getting housing
Sunny
California Penal Code 290.46(l)(2)(G) prohibits landlords and others from using information from the Megan’s Law website (registry) to discriminate against registrants.
California Civil Code 1786.18 forbids criminal background checks going back further than 7 years. For any registrant with a case older than 7 years, there are very few or no legal methods a landlord can use to discriminate against a registrant.
Also notable:
AB 1008 (“Ban the Box”) became effective in 2018 and prohibits employers from asking applicants about criminal history (Fair Employment and Housing Act).
In 2021 California’s 3-tiered registry (Senate Bill 384) will permanently remove tens of thousands of people from the registry altogether.
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