The Obama administration released a warning Monday telling the nation’s landlords that it may be discriminatory for them to refuse to rent to those with criminal records.

The Fair Housing Act doesn’t include criminals as a protected class, but the Department of Housing and Urban Development (HUD) says refusing to rent based on a criminal record is a form of racial discrimination, due to racial imbalances in the U.S. justice system.

“The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, or other protected characteristics,” say HUD’s newly-released guidelines. “Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African-Americans and Hispanics. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification.”

About 25 percent of Americans have some kind of criminal record, which can range from felony convictions to arrests that never led to charges. As HUD correctly notes, criminal history is not equally distributed across racial groups. For instance, while blacks are about 12 percent of the U.S. population, they are about 36 percent of the prison population. Hispanics are also overrepresented behind bars, though to a much smaller degree.

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