Screening vs. Discrimination: What Berkeley Rental Housing Providers Can and Cannot Do

Every rental housing provider must make choices about who to approve and who to deny. But there is a critical line between lawful screening and unlawful discrimination. Understanding that line is essential for protecting yourself from fair housing complaints and ensuring a defensible application process.

1. Protected Characteristics: What You Cannot Screen or Deny On

Federal, state, and local laws make it illegal to screen or deny applicants based on the following:

Prohibited actions:

Based on a protected characteristic, a landlord may not:

• Refuse to rent, lease, or sell housing

• Refuse to negotiate for housing

• Make housing unavailable or falsely claim it is unavailable

• Set different terms, conditions, or privileges

• Provide different housing services or facilities

• Deny access to housing-related organizations (such as MLS)

• Refuse reasonable accommodations or modifications for a person with disabilities

• Threaten or interfere with someone exercising fair housing rights

• Provide municipal services, insurance, or essential services differently

2. Criminal History in Berkeley

The Fair Chance Housing Ordinance prohibits asking about or using criminal history in most cases.
Exceptions: Criminal history may be considered only for:

• Single-family homes where the owner lives on-site and rents part of the property

• Duplexes where the owner lives in one unit and rents the other

• ADUs on owner-occupied parcels

3. Lawful Grounds for Denial

You may lawfully deny applicants based on neutral, objective factors, such as:

• Credit score below your published minimum

• Insufficient income-to-rent ratio (for example, less than 3x rent)

• Excessive debt compared to income (for example, over 40 percent DTI)

• Negative rental history, including evictions or repeated late payments

• Inability to verify income or rental references

• Too many occupants for the unit size under HUD or California standards

• False or incomplete information on the application

These reasons are only defensible if they are part of your written screening criteria and applied consistently.

4. Gray Areas That Carry Risk

• Political affiliation: Not protected under federal or state law, but Berkeley’s “arbitrary characteristics” clause makes it risky.

• Lifestyle or appearance: Tattoos, clothing, bumper stickers, and hairstyles are not federally protected, but denials on these grounds look arbitrary and may be challenged.

• Future intentions: Denying someone because they said they only plan to stay two years, or that they want to stay indefinitely, is not lawful. In Berkeley, just-cause protections control when a tenancy can end, not a lease term.

5. Why Written Screening Criteria Matter

Every lawful reason for denial must be spelled out in your screening policy. If you cannot point to it in writing, a denial looks arbitrary.

• Objective + Written + Consistent = Defensible

• Subjective + Unwritten + Case by case = Risky

This is why BPOA strongly encourages every housing provider to adopt clear, written criteria before advertising a rental.

Gut Feelings: Proceed with Caution

It is natural to rely on instincts when meeting applicants. Sometimes a “gut feeling” can alert you to issues like evasiveness, dishonesty, or aggressive behavior. But remember: in Berkeley, denials based on arbitrary characteristics can expose you to claims of discrimination.

Best practice is to use your instincts as a signal that something may be wrong, then check whether the applicant actually fails one of your written criteria. If they do, you have a defensible reason to deny. If they do not, relying solely on a gut feeling is risky.

Bottom Line for Housing Providers

You can and should be selective when choosing tenants, but your decisions must be based on objective, lawful, and written criteria. By keeping your process neutral and consistent, you protect yourself from claims of discrimination and make the rental process more transparent for applicants.