Is manager's zero-tolerance policy on criminal activity legal?

Question: My company owns and manages several large rental communities. After very strong encouragement from our local police department, I agreed to establish a "zero tolerance" policy for criminal activity by any of our residents.

If a police call to one of our properties results in a police report naming a resident, or if it results in a resident being arrested, that action constitutes the "one and final strike" against the resident. That resident and anyone else living in the same unit will be immediately evicted. We have incorporated this policy into our rental agreements.

Recently, I heard on television that this type of policy might be viewed as discriminatory under the fair housing laws.

I'm not trying to discriminate against anyone. I'm just promoting safety by prohibiting crime in my complex and keeping good relations with the police. Do I need to reconsider this zero-tolerance policy?

Answer: This type of policy does raise a fair housing concern because it may result in discrimination based on the policy's disparate effect.

The most obvious type of discrimination is "intentional discrimination," such as overtly refusing to rent to Latinos. However, discrimination also can occur when an apparently neutral policy or practice still has the effect of discriminating against a particular group of people when it is applied.

In your case, although you might not have the intent to discriminate against anyone at your property, a very broad zero-tolerance policy may have the effect of singling out people or groups protected under the fair housing laws. For example, there is some evidence that certain ethnic groups are more likely to be stopped or arrested, regardless of whether they have engaged in actual criminal activity.

A female resident may find herself the victim of domestic violence when she is attacked by her fiance. According to your policy, if the police are called, and they arrest the fiance, everyone in the household — including the female victim — would be evicted.

Under the "discriminatory effect" theory of discrimination, women are far more likely to be the victims of domestic violence than men. Moreover, in California, California Civil Code Section 1161.3 specifically prevents evictions of domestic violence victims because of the behavior of an abuser.

In some cases where the disruptive behavior is linked to a tenant's mental health disability, a tenant may request, as a reasonable accommodation, a second chance to comply with the lease.

Courts have found when the behavior is linked to a mental health disability, and the tenant can show that the person is taking steps to modify his or her behavior to comply with the lease, a landlord may be required to accommodate the tenant by him or her a second chance to comply with the lease.

We recommend that you modify your zero-tolerance policy to narrow its focus to address these fair housing concerns, for example by requiring a conviction or limiting it to recent criminal behavior on the premises, not just a mention in a police report or an arrest.

The policy should also allow exceptions when victims of domestic violence or other innocent victims live in the same household, or where a reasonable accommodation is appropriate.

Eichner is director of Housing Counseling Programs for Project Sentinel, a Bay Area nonprofit. Send questions to info@housing.org.