The City of Seattle passed the Fair Chance Housing Ordinance, which prohibits landlords from (1) inquiring about the criminal history of current or potential tenants and (2) from taking adverse action based on that criminal history. In a split decision yesterday, the Ninth Circuit found the “inquiry” provision unconstitutional under the First Amendment, but upheld the “adverse action” provision against a substantive due process attack. The majority opinion assumed without deciding that the Central Hudson intermediate scrutiny standard for commercial speech applied to the inquiry provision, and found the provision failed under that standard because the provision was not sufficiently narrowly drawn to achieve the City’s goals, pointing to criminal history laws passed by other municipalities that were less restrictive of the right to inquire– for example, requiring the landlord first complete an initial screening, allowing only inquiry as to certain crimes, limiting the relevant time period, or requiring landlords allow tenants to provide mitigating information.
As to the adverse action requirement, the court refused to find a landlord’s “right to exclude” a fundamental right for purposes of substantive due process (as opposed to in the context of Takings Clause analysis). Applying rational basis scrutiny, the Court found the adverse action provision easily survived. It remanded to the district court to conduct a severability analysis.
The two judges who formed the majority as to the Inquiry provision each filed concurrences, adopting different views as to whether landlord inquiries were commercial speech, and thus subject to Central Hudson intermediate scrutiny, or noncommercial speech, and thus subject to strict scrutiny under Sorrell.
Concurring in part and dissenting in part, Judge Gould would have upheld the entire statute.
Should the district court find the statute severable, the statute will likely still have great effect. There is little point in a landlord asking about criminal history if it cannot use the information provided. And, as many employment lawyers advise their clients, even where asking about a protected characteristic is not prohibited, it can be unwise to do so, as simply having that information could tempt you to–consciously or not–rely on it.