If you or a loved one has a criminal record, you know discrimination can be everywhere. When you apply for a job, they’ll find your record. When you try to go to college, they’ll find your record. And when you look for housing, they’ll find your record, too. This is true even if you’re applying to live in a nursing home. That’s because nursing homes can refuse to admit people because of their criminal record in some circumstances.
Can nursing homes refuse to admit applicants with a criminal record?
Yes. Nursing homes can’t discriminate against people on the basis of their membership in a protected class. For instance, a nursing home can’t deny someone’s application because of their race, color, national origin, religion, sex, disability, familial status or any other legally protected classification. But, when it comes to any other classification — like having a criminal record — nursing homes can use that to refuse to admit someone to their facility.
Like when it comes to applying for jobs or other housing, applying for a nursing home may require that you disclose your criminal record. And, in the U.S., a nursing home can deny your application based on your record. Nursing homes justify this discrimination by pointing to safety. We can’t have criminals in our facility, they claim, for the safety of the other residents and the staff.
Does this mean that nursing homes are free to discriminate then?
No. Also like when it comes to applying for jobs or other housing, businesses may use your criminal history as a cover to discriminate against you based on your membership in a protected class. For instance, some nursing homes and landlords will refuse to to admit Black applicants with a criminal history even though they admitted white applicants with a similar record. The Fair Housing Act prohibits this kind of discrimination.
Other possible discrimination could include when a nursing home
- only asks some, but not all, of the applicants to do a background check,
- tells you that they make decisions based on arrests (rather than convictions),
- won’t reasonably accommodate your disability if it relates to your criminal record,
- discourages you from applying after you disclose your criminal record,
- acknowledges a policy to reject all applicants with any criminal history or
- says they won’t admit you because of a domestic-violence incident even if you were the victim.
These examples won’t always be illegal discrimination. But, depending on the circumstances, they could be and should at least be viewed as red flags.
What can you do if nursing homes refuse you because of your criminal record?
It depends. If a nursing home carefully considers your application but decides that your criminal history makes you an unreasonable risk for their facility, they can deny your application for that reason, even if it feels unfair. But if nursing homes use criminal records as a pretext, to screen out every applicant from a protected class or in another improper way, you may be able to file a lawsuit.
Sometimes, other organizations will file discrimination lawsuits against nursing homes, too. For example, in 2018, Mobilization for Justice (formerly MFY Legal Services) and the AARP Foundation filed a lawsuit in New York against the state and four adult homes. In the lawsuit, the plaintiffs alleged that the defendants discriminated against people in wheelchairs. While that case didn’t involve applicants with a criminal history, it is an example of organizations standing up for people who are discriminated against by nursing homes.
Nursing homes can consider an applicant’s criminal history, and even refuse to admit applicants because of it, in some circumstances. But they can’t use it as a pretext to discriminate against you for other reasons, including race, color, national origin, religion, sex, disability, familial status or any other legally protected classification. If a nursing home illegally discriminates against you, you can file a lawsuit.