Erasing the “Scarlet E” of Eviction Records

Last year, as the pandemic raged, Jane received an eviction notice for failing to pay the rent for her apartment in Durham, North Carolina. Her landlord is one of many across the country who have continued to file for eviction despite a federal moratorium that is supposed to halt evictions in the interests of providing shelter and protecting public health. The Civil Legal Assistance Clinic that I direct at the University of North Carolina represented Jane (I’ve changed her name to protect her privacy), and we filed a successful motion to dismiss her landlord’s case. Undeterred, the landlord re-filed the case, and again we intervened to prevent our client’s displacement—no small thing, given that the vast majority of tenants appear without lawyers and are therefore less likely to raise the moratorium or other defenses. But for Jane, significant damage was already done. 

Any eviction filing creates a “Scarlet E” that can haunt a tenant for years. Private companies collect and sell housing court data, culling court records for names of defendants in eviction proceedings—whether they win or not—and then compiling them to profit off the tenants’ misfortune. Prospective landlords will purchase the information or pay tenant-screening companies to assess prospective tenants on the basis of these records. With many landlords, a prior eviction will be a complete bar to accepting a rental housing application. Others consider it as one of several factors or use it as a basis to charge a higher deposit. Eviction judgments also undermine opportunities for employment, insurance, and, more broadly, any activities that depend on good credit. While evictions push people from their homes, records of those evictions can effectively banish people from civil society. 

We face a housing crisis that preceded the pandemic and only continues to worsen. The current economic environment has accelerated the consequences, extending the massive threat of eviction to approximately 18 million families or more. Tackling housing scarcity requires deep, structural changes to address the historical roots of the problem. To the extent that eviction remains a feature of our legal system, judges and legislators must take steps to shift the extreme imbalance of power that defines the current eviction process. And, if courts continue to process eviction cases during the pandemic, policy makers must confront eviction records so they do not become yet another source of the pandemic’s collateral damage. 

By restricting how eviction records are created, maintained, and used, legislatures can mitigate the harms of the records. Otherwise, such records will haunt tenants for years, forever locking people out of the mainstream economic market due to court filings that may be wholly without merit. 

Marked Regardless of Merit

What might come as a surprise is that the merits of an eviction lawsuit will have little to no impact on whether an individual gets marked as undesirable. This is for several reasons. First, assessments of a lawsuit’s merits are questionable in an eviction system where enormous numbers of defendants lose by default and the vast majority have no lawyer. Many tenants do not come to court because it conflicts with work, school, or childcare responsibilities; because they have (reasonably) concluded that they have little chance of success; or because they were never notified of the action. A judgment then gets issued against them automatically.

When they do appear, lawyerless tenants go toe to toe with attorneys representing their landlords. Studies have found that landlords are represented by counsel in 80 to 90 percent of eviction cases, while tenants are on their own in 90 percent or more. Not surprisingly, this affects outcomes. In jurisdictions that have started to provide a right to counsel for tenants, the tenants win much more often. The truth is that when landlords’ claims are put to the test of advocacy, they often fail. There is little reason to infer that judgments against lawyerless tenants, especially those who lose by default,  reflect the merits of the landlords’ claims. 

Making matters worse, court records often make it look like the landlord won even when they didn’t. Evidence shows that eviction court records are frequently riddled with misinformation that is misleading or just plain wrong. This can result from clerical errors, name mix-ups, and an absence of good file management, but also from courts failing to capture what actually occurs. As an example, in Connecticut, court mediators resolve eviction cases by having the parties sign settlements called “stipulated judgments.” The tenant agrees to pay any rent due and (if they’re lucky) gets to stay in the home. But technically the landlord still gets a judgment. If the tenant makes timely payments, they can keep the roof over their head temporarily, but this does nothing to remove the judgment from the record. 

Finally, and perhaps most disturbingly, tenants can get marked as undesirable simply because the data collection method used by most tenant-screening bureaus includes anyone named as a defendant in an eviction case, regardless of whether any judgment is issued against them. The bureaus capture all tenants listed in eviction court files, often without any further inquiry. A tenant can even win at trial and still lose out on future opportunities because of the court record. My client Jane, for example, has twice defeated improperly filed eviction cases, but those victories count as two marks against her, threatening her access to future housing.

Eviction Filing as a Weapon

The dynamics between Jane and her landlord represent a larger problem caused by the dissemination of eviction records: It gives landlords a powerful and unfair weapon, one which increases their leverage in bargaining and opens the door for abuses of power. The potential to file a case and thereby permanently damage a tenant’s rental record on a national scale gives landlords an added leg up. When tenants are poor, any dispute with a landlord is already imbalanced because the stakes for tenants (shelter) are so much bigger than for their landlords (profit). The mismatch in legal representation exacerbates that imbalance. Yet the easy opportunity to damage a tenant’s record, with no chance for the tenant to contest the veracity or merit of the landlord’s claims, means the landlord holds an extraordinary power over each tenant’s ability to escape the current living arrangement and access new housing in the future. 

In the clinic I direct, we represent scores of tenants who want to move but, despite completing and paying the fees for rental applications, later discover their rental records to be an insurmountable obstacle. The tenants’ reasons for moving are compelling. They live in dangerous housing conditions that were not visible on move-in, or they are subjected to sexual harassment that terrorizes them in their homes. They come to our clinic not because they are facing eviction—they have paid their rent and caused no problem for their landlords—but because they seek help to improve their housing situations for themselves and their families. 

Yet they also fear retaliation, and that chills their ability to contact code enforcement offices or file reports with antidiscrimination agencies. This fear is well-founded. While some tenants suffer in silence, those who speak up risk being named in an eviction lawsuit. Many of these tenants are without lawyers and lose their homes as a consequence. And, while I can promise to defend my clients against any retaliatory eviction, their cases will still show up on their rental records. They will then be marked, making it harder for them to leave.

Inequality Exacerbated

Eviction records limit access to housing and thereby exacerbate inequality. On an individual level, the barrier of an eviction record undermines individual choices, makes it harder to maintain shelter, and increases the likelihood of homelessness. In the aggregate, the dissemination of eviction records pushes already marginalized populations into substandard rental markets, where homes have dangerous conditions or require extra fees. Because so many landlords use eviction records in their assessment of potential tenants, the exclusion of residents on this basis contributes to housing segregation.

The use of eviction records entrenches inequality along lines of race, gender, and class. This is for two reasons: Differing rates of eviction and differing effects of eviction. First, certain populations are disproportionately likely to face eviction. Tenants facing eviction generally lack generational wealth that would provide a financial cushion. Women are more likely than men to be named as defendants in eviction proceedings,  and multiple studies have shown that Black women with children are more likely than any other group to face eviction. This results from a confluence of factors including the gendered labor of caring for children and the home, wage gaps associated with race and gender, discrimination in housing, and the U.S. history of stealing wealth and labor from communities of color. 

With regard to the effects of evictions, marginalized populations are also more likely to be judged harshly for carrying the eviction marker. Social science shows that negative status markers are “stickier” for individuals already facing implicit bias. For example, the late sociologist Devah Pager demonstrated that the mark of a criminal record had a greater impact on Black job applicants than white applicants; employers were more likely to overlook the marker for white applicants, still giving them a call-back, when comparable Black applicants were turned down. 

It is reasonable to predict a similar consequence in the housing market: The mark of an eviction record is likely to be especially difficult to overcome for people of color and especially Black women. In his best-seller “Evicted: Poverty and Profit in the American City,” sociologist Matthew Desmond describes a white couple in Milwaukee whose records would likely have been insurmountable obstacles to accessing housing if not for their race. Between them, the couple, “Pam and Ned,” had five evictions on their records, a felony conviction, an outstanding warrant, and little evidence of income. Yet, after moving their housing search to a Latino neighborhood, they found a landlord who accepted them. As Desmond explains, Pam and Ned had many factors working against them—“[b]ut they were white.”

The creation of a mark that excludes people, and disproportionately women of color, from housing opportunities echoes a long history of discrimination in the United States. As Michelle Alexander has taught us, the collateral consequences of criminal records create a new system of racial segregation and exclusion. Eviction records, too, haunt tenants and keep them from participating fully in civil society. It is noteworthy that eviction records map directly onto neighborhoods with a history of redlining. To allow eviction records to perpetuate inequality would contravene the values we now claim to embrace. 

Restrict Eviction Records Like Criminal Records

The COVID-19 pandemic has dramatically increased the risk of eviction. This increase has climbed along lines of race and gender because of the demographics of the disease and its impact on low-wage and feminized industries. But there is some cause for hope: The threatened eviction of 40 million Americans has caught the attention of the media and the public. For the first time in a century, presidential candidates raised eviction as a topic that deserved national attention. Now that policymakers are paying attention, what can be done? 

The first place to look for ideas is criminal justice. The collateral consequences of criminal convictions make an analogy between criminal records and eviction records a natural one. This is particularly so because an arrest or charge, even without any conviction, can severely impact an individual’s life, just as can a naked eviction complaint. Both criminal records and eviction records also disproportionately impact communities of color. Men of color are more likely to carry criminal records, while women of color are more likely to carry records of eviction. 

Some categories of criminal records are sealed automatically, or can be expunged after a certain period of time, but in most states no such process exists for tenants. Some jurisdictions have also established ban the box laws that prohibit employers, and sometimes landlords, from asking about criminal history. These efforts reflect the consensus that we should include people in society, and help them participate in the workforce, without regard to criminal history. 

Borrowing from the criminal context, avenues for reform may be understood in two broad categories: (1) regulating private actors’ use of eviction records; and (2) altering courts’ creation and storage of such records. Legislation might demand accuracy of information that tenant screening companies disseminate, or set time periods after which records must be removed from circulation. It might also attack the problem at a different point in the pipeline, regulating landlords’ handling of rental applications. This can include prohibiting eviction-based denials and promoting greater transparency, such as by requiring landlords to make rental admission policies public and to provide any rejected applicant with an explanation for that denial. The most effective reforms include a combination of these approaches. 

Ideally, restrictions on private actors’ use would be sufficient to stamp out the problem of eviction records. Regulations on use go directly to where the harm occurs. They comport with the view that private actors ought not to spread negative and misleading information for profit and that landlords should not impose unfair barriers to housing. In Seattle, the First in Time Act requires landlords to provide notice of their screening criteria and to offer tenancy to the first qualified applicant who applies for an open unit. Minneapolis and Saint Paul have also developed nuanced rules for tenant screening and selection. Such regulations dovetail with promoting transparency in housing decisions. In Minnesota, if a landlord charges an application fee and then rejects an applicant, the landlord must notify the tenant of the reason for the denial. Yet restrictions on use require both the political will to limit private economic activity and, importantly, the establishment of legal mechanisms and financial resources to enforce the laws once passed. 

Such regulation of private actors’ use of eviction records is worth serious consideration, but the ongoing underenforcement of tenants’ rights, in areas ranging from housing discrimination to substandard conditions, suggests the need for a supplemental solution. Indeed, some misuses of eviction records already violate existing laws. The federal Fair Credit Reporting Act limits dissemination of inaccurate information and prohibits reporting of judgments more than seven years old. The federal Fair Housing Act, among other things, prohibits housing screening policies that appear neutral but have a disparate impact based on race or gender. Yet enforcement remains a challenge.

In the hope of identifying simpler solutions, a handful of state and local legislatures have made progress with expungement and sealing eviction records. Nevada, Oregon, and Minnesota now allow courts to expunge eviction records on a case-by-case basis. While this is better for tenants than no such option, applying for relief involves hurdles for unrepresented tenants. A better approach is automatically sealing records, and some jurisdictions, like California, have already adopted the automatic approach, while others, like Connecticut, are considering it. The District of Columbia passed a sealing law as a pandemic-era measure and is now considering making it permanent, alongside restrictions on tenant screening. 

To be sure, automatic sealing or expungement raises some transparency concerns, because open records have important value for academic study, journalistic expression, and democratic governance. But evidence suggests that today eviction court records are used more often by corporations generating profit than individuals seeking to participate in our deliberative democracy. Moreover, to disclose information needed in the interest of public education, scholarship and journalism exceptions can allow the disclosure of aggregate information without identifying tenants’ names. This could even include the number of evictions filed at certain addresses, or by particular landlords, so long as the properties are large enough that the tenants’ identities would not be inadvertently revealed. Yet, unless and until we can ensure robust monitoring and enforcement of restrictions on use, blocking the records at the source is essential to protecting tenants from the severe and unfair negative consequences that will otherwise follow them.

Legislation addressing the barrier of eviction records is of course part of a larger movement for improving housing. Thoughtful advocates have begun tackling eviction records as one part in a package of solutions, including pre-filing eviction diversion programs, a right to counsel, a right to organize and bargain collectively, “good cause” laws, rent regulation, strengthened public housing, community land trusts, increased rental and ownership subsidies, revised zoning, and robust enforcement of laws on the books.

UPDATE: Philadelphia city councilors introduced legislation to limit consideration of eviction records, and it paired that bill with an amendment of its fair housing law. The amendment ensures landlords make their screening criteria available to the public and entitles rental applicants to written explanations if denied. The fair housing amendment not only supports deterrence and enforcement, but also it reflects the connection between eviction and discrimination. Philadelphia offers a particularly creative model, tackling eviction records directly to supplement its existing eviction-diversion program, right to counsel, and “just cause” law. Policymakers looking at eviction rightly seek to prevent involuntary displacement and its collateral consequences. Mitigating the harms caused by eviction records is an important step forward.

Note: This piece was updated to include newly introduced legislation in Philadelphia.