10 Things You Can Do Right Now to Avoid Fair Housing Trouble
This month, the Coach zeroes in on the 10 things you can do right now to avoid fair housing trouble. Often, we’re focused on the big picture—and things that take time to put into practice. But for this lesson, we’re focusing on small, immediate steps that you could take right away to cut your risks of a fair housing complaint.
For help, we turned to our fair housing experts. Collectively, they’ve seen and done it all when it comes to fair housing. They know the law—inside and out—and have run countless training sessions, helping communities like yours on how to deal with problems—big and small—that often trigger fair housing complaints. Based on their experiences, the experts weighed in with suggestions about the most important things that community owners and managers can do to ward off fair housing trouble.
In this lesson, we’ve compiled a list of the top 10 things you can do right away to help ward off fair housing problems at your community. The list includes general strategies to avoid the mistakes and misunderstandings that often lead to complaints, along with tips on dealing with high-risk areas of concern, most notably assistance animals and criminal background checks. For some, the experts stressed the urgency of taking immediate action; otherwise, it’s up to you to decide which ones sound most appropriate for your community—and when you choose to do them.
TOP 10 THINGS YOU CAN DO RIGHT NOW TO AVOID FAIR HOUSING TROUBLE
1. Know the Law
To avoid fair housing trouble, the first thing you should do is to know all of the laws applicable to your community, says F. Willis Caruso, former head of John Marshall Law School’s fair housing program.
First off, there’s federal law—the Fair Housing Act (FHA), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, and disability. The FHA applies nationwide to virtually all rental housing communities.
In addition, many states and localities have fair housing laws in addition to the federal law—you should know them as well, says fair housing expert A.J. Johnson. Often, these state and local laws have extended fair housing protections to cover marital status, sexual orientation, and source of income, to name a few. The tricky thing is that state and local laws vary—not only between states, but also among the different counties, parishes, cities, towns, and other local areas.
It’s your job to know all the laws that may apply to your community. As Caruso puts it, you should be prepared, which means:
- Knowing the Fair Housing Act and the federal regulations;
- Knowing the state fair housing law; and
- Knowing all the local laws. (In his home base, Chicago, for example, that means the Cook County ordinance and the Chicago ordinance.)
The second thing on Caruso’s list: Learn to live with HUD—and to know what HUD expects. At his training sessions, Caruso emphasizes that HUD and the local state agencies are players, and good managers should be sure to know what HUD and others expect of them. The point he likes to make is this: Looking at the HUD website and reviewing HUD directives and interpretations as well as the regulations may not tell you everything that you need to know. He recommends that people get familiar with their local HUD office—where it is and who works there—and to do the same on the state (and local) level. That way, when you get involved in a sticky fair housing situation, you’ll be able to know what HUD expects and can try to find a way to work it out to avoid conflict with HUD’s position.
2. Give New Employees Fair Housing Training ASAP
Nearly all of our experts stressed the importance of training to ward off fair housing problems. At the top of the list: Make sure that new hires get at least some basic fair housing training before allowing them to answer the phone or interact with the public.
As fair housing expert Anne Sadovsky puts it, “No one gets to sit at the front desk without fair housing training.” Why? Because it’s risky to let someone who’s new on the job answer the phone, since he may not be familiar with fair housing requirements or have had a chance to learn the specifics of your community’s policies. It’s bad enough if he makes an offhand remark or gives the wrong answer to a question from a prospect, but it’s even worse if the caller turns out to be a fair housing tester. Nationwide, fair housing testers posing undercover as would-be prospects are calling—and emailing—to check for differences in the way you treat people based on race, family status, disability, or other characteristics protected under federal, state, or local law. Even experienced staff can sometimes get tripped up by their questions, but the risk increases dramatically if you put a new employee, who may have little experience in the field, in a position to make you vulnerable to further investigation—or perhaps, a fair housing complaint.
It’s not just the front desk you need to worry about. All new employees, no matter what their job, should be trained before they’re allowed to interact with the public. If you’re hiring a bunch of new people, Caruso says you should arrange for classes as soon as possible after they come on board. If it’s only one or two, then you could arrange for online training—or have the supervisor review materials from the last fair housing training to tide them over until the next regular training session.
3. Give All Employees Routine Fair Housing Training
When was the last time you provided your all employees with fair housing training? If you don’t remember—or it’s been more than a year since the last training session—then getting it on the calendar ASAP is something that you can do right now to stave off fair housing trouble down the road.
Fair housing expert Doug Chasick says that every employee who has any contact with the public (prospects and residents) should not only complete fair housing training, but also understand the basic principles of practicing fair housing. It’s obvious why you’d want your leasing staff to get fair housing training, but it’s also important to include maintenance workers, service techs, porters, and others, says Sadovsky.
It’s also important for upper management (and owners) to participate in the training, fair housing expert Nadeen Green added, since front-line employees may not have the authority to make the changes that are sometimes needed to comply with current fair housing requirements.
You should have fair housing updates at least once a year, says Caruso. A good update reminds employees about what they learned the last time (touching on the main points), and then explains any changes in the law since then. The update should also include any developments—in the courts or by enforcement agencies—particularly if they dealt with problems discussed during the last session. The trainer should explain what happened—and how what they learn in training will help your employees avoid making a similar mistake. Caruso recommends getting an outsider to conduct the training, as opposed to staff or management, who may be tempted to soft-pedal the answers to hard questions.
Coach’s Tip: One key thing to cover during the training: claims based on unintentional discrimination—also known as disparate impact claims. Fair housing attorney Robin Hein says that it’s important to explain to staff that unintentional discrimination means when a policy applies to everyone but has a harder consequence or impact on minorities (adverse or disparate impact), says Hein. It’s a relatively new concept and difficult for management staff to understand because their companies traditionally have trained them not to “make exceptions” and treat everyone the same. The staff assume that if they treat everyone the same on every policy, there won’t be a fair housing complaint or discrimination.
4. Take Training to the Next Level
Just “checking the box” that fair housing training was completed isn’t good enough, says Chasick. Don’t just “send” people to fair housing training; take it to the next level, he says, by taking steps both before and after training to make sure that employees can put what they learned into practice. He offers some tips:
- Before the training, supervisors should prepare their direct reports in a pre-training meeting by setting expectations about what they will learn and how their behavior will change as a result of attending the training.
- Follow up afterward by having a post-training review of what was learned and what changes will be made as a result of attending the training. The supervisor needs to monitor performance to ensure the agreed-upon changes are made.
- Continue to follow up, by having a monthly team meeting to review fair housing, including anything that has happened since the last meeting, updates on anything new from HUD, the Justice Department, or state or local fair housing agencies. Review any new policies or directives from corporate. You could have a theme for each monthly meeting, such as parking, animals, or use of amenities—and have a different employee lead each meeting. And, he says, include office and maintenance staff.
5. Root Out Discriminatory Statements
Review all written material on a regular basis for potentially discriminatory statements, says Johnson. Train employees regarding what to say—both in person and on the phone, and ensure that email responses to inquiries are consistent and non-discriminatory, says Johnson.
Have a zero-tolerance policy toward casual remarks, jokes, and wise cracks, Chasick says. Pay attention to the words you use. For example, there is no such thing as a “service pet,” he says. Along the same lines, Green says that employees should understand how to handle transgender situations, particularly in the pronouns used—for example, when “he” is applying for a unit, but “his” name or ID belongs to “her.”
Chasick also emphasizes the importance of interpersonal skills. Smile, be polite, and be respectful. The correct response to “Thank you” is “You’re welcome.” Stop multitasking and direct 100 percent of your attention to the human in front of you or on the other end of the phone. Stand when another human enters the room. This is not political correctness, he says, it’s common courtesy. Or, he asks: Do you think there is a huge distance between the perception of disrespect and the perception of discrimination?
6. Review Your Disability Policies & Procedures
One thing you can do right away is to make sure that you have the appropriate policies and procedures in place for handling disability-related issues. The FHA bans disability discrimination; the law broadly defines disability as a physical or mental impairment that substantially limits one or more major life activities.
One form of disability discrimination is the refusal to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford an individual with a disability the equal opportunity to use and enjoy her unit, along with public and common-use areas. In essence, this means that communities must make exceptions to their general rules for individuals with disabilities when it’s both reasonable and necessary under certain circumstances.
More than half of all complaints to HUD are for disability discrimination, a substantial number from reasonable accommodation requests. The substance may vary, but communities often get in trouble, at least in part, from the way they handled the requests, particularly when it’s for assistance animals or reserved parking. Here are some tips from our experts to help you avoid these problems:
- Know the rules about when and how people can request reasonable accommodations. You can ask that people put requests in writing—or to fill out your standard forms—but you can’t refuse to accept a request simply because they won’t put it in writing. As Caruso notes, he’s handled complaints because staff told applicants for an accommodation that they have to put in writing.
- Know the rules about whether—and when—you can request documentation to verify that the person has a disability or has a disability-related need for the requested accommodation. And know when enough is enough: Once the person produces satisfactory documentation, you can get in trouble if you keep asking for more information—you could be accused of stonewalling.
- If you’re satisfied that the person qualifies as having a disability, but you believe the accommodation requested is unreasonable, then you should take the next step—what HUD calls the “interactive process,” which is basically talking to the person to determine whether there is an acceptable alternative way to reasonably accommodate his disability-related needs. Green warns that failure to engage in the interactive process often leads to fair housing trouble.
- Once you’ve got enough information, respond quickly to the request—with either a yes or no answer, says Green. She warns against dawdling in response to a reasonable accommodation request: If it goes on long enough, it’s considered the same as a formal denial.
A good practice, Green says, is to name a point person, who’s responsible for handling all requests for reasonable accommodations for the community, property management company, or owner.
Chasick takes it a step further, explaining that there should be only one ultimate authority for all fair housing questions at each community. Usually, he says, it’s the on-site manager. Everyone else should be trained on how to hand off all fair housing questions and inquiries to that ultimate authority, typically accomplished by memorizing and repeating something like this, “I’m sorry and I’m not sure—let’s go speak to the manager.”
7. Pay Special Attention to Reasonable Accommodation Requests
Disputes involving animals are such a big problem, that all of our experts weighed in with tips on things you can do right now to avoid fair housing trouble.
As far as fair housing law is concerned, you can have any policy you want to regulate whether and when residents may keep pets at your community—as long as you understand that you MUST consider making exceptions to the policy as a reasonable accommodation for applicants or residents who ask to keep assistance animals. Here are some tips from the experts:
Don’t think of assistance animals as pets. Don’t fall into the trap of calling all animals “pets” or believing that your pet policies automatically apply to assistance animals. Under fair housing law, assistance animals are not pets. They’re animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability, according to HUD. In that way, assistance animals are more like human aides who provide necessary services, assistance, or support for individuals with disabilities. Just as you couldn’t refuse access to an aide who provides needed assistance to a resident with a disability, you can’t enforce pet policies to ban an animal that provides the resident with similar assistance.
Understand that service animals aren’t the only kind of animals allowed under fair housing law. It’s clear that the law applies to service dogs, such as guide dogs for visually impaired people, which have been trained to provide disability-related services to a person with an apparent disability. But there’s more to it than that, because the FHA recognizes that assistance animals may include a wide variety of species—not just dogs—that provide various forms of assistance, including emotional support, with or without specialized training, according to HUD.
Requests for assistance animals are by far the biggest area of concern today for rental properties, says Hein, because people are trying to bring in pets that have no training and were once considered to be “dangerous breeds.” Many communities have policies banning so-called dangerous breeds, but HUD warns that breed, size, or weight limitations may not be applied to an assistance animal.
Be careful in handling requests for emotional support animals. Review your current policy statements and response procedures to disability accommodation requests from applicants and residents who want to have an assistance animal that may be an emotional support animal as opposed to a trained service animal, Hein said. It doesn’t matter what they call it—whether it’s “comfort” animal, “companion” animal, or “therapy” animal—all may be considered assistance animals if they provide emotional support that alleviates one or more identified symptoms or effects of a disability. Failure to accommodate requests for assistance animals, especially for emotional support or “comfort animals,” often leads to fair housing trouble, says Green.
Requests for emotional support animals often lead to trouble because it isn’t obvious that the prospect, applicant, or resident has a disability. But don’t let outward appearance fool you. Under fair housing law, all individuals with disabilities are equally protected—whether the disability is physical or mental, obvious or not.
Train your staff on how to spot, recognize, and notify their supervisors if someone makes a disability accommodation request for an emotional support animal. The law doesn’t require that a request be made at a particular time or in a particular manner. The reasonable accommodation rules kick in anytime anyone says he needs or wants something—including an assistance animal—because of a disability. Anytime you get a request for an assistance animal, treat it as a reasonable accommodation request for an exception to your pet policies.
And don’t make the mistake of thinking, “We charge for pets so we charge for assistance animals,” says Caruso. HUD says that you can’t charge an extra fee or pet deposit as a condition of granting a reasonable accommodation for an assistance animal.
The bottom line: Stop second-guessing when dealing with requests for assistance animals, Chasick says. If a prospect, applicant, or resident follows your policies and presents the required documentation, then he gets the animal. If he met your all requirements, then allow the request and move on—even if you think he’s gaming the system.
Coach’s Tip: The second major source of fair housing complaints: disputes over parking accommodation requests. Even if your general policy is to provide unassigned parking on a first-come, first-served basis, you shouldn’t flatly refuse to make an exception if there’s any suggestion that it’s needed because of a disability. Treat any disability-related request for special parking arrangements the same as you would any other request for an exception to your standard policies: They should all be handled as requests for reasonable accommodations. For more information on parking accommodations, see the Coach’s February 2016 lesson, “How to Handle Disability-Related Requests for Parking Accommodations.”
8. Update Criminal Background Screening Policy
In the spring, HUD announced new guidelines to address the discriminatory effect criminal background policies may have on racial and ethnic minorities. It may take some doing to get your policy in shape, but there are some things that you should do right NOW to avoid triggering a fair housing complaint—or worse, being the test case for HUD’s new policy. The first step, Green says, is to ask yourself these questions:
When was the last time you reviewed your policies on criminal background screenings? If it’s been a while, pull out your policy ASAP and get cracking. Depending on what it says, you may—or may not—have to make changes, but you won’t know unless you know what it says.
Does your policy still consider arrest records of applicants? If so, you’ll need to make some changes immediately. HUD’s new guidelines flatly say that excluding someone based on arrest records is likely to have a discriminatory effect based on race and national origin.
Does your policy still have “all felonies” or long-ago felonies as reasons not to rent to someone? If so, you may be headed for trouble because the guidelines call into question the lawfulness of excluding people based on criminal convictions without consideration as to what the conviction was for or how long ago it occurred. For help, consult with your attorney, screening company, and local apartment association.
Does your policy allow applicants to explain the background of a felony conviction? The HUD guidelines say that communities should offer applicants with criminal records an opportunity to explain the circumstances and what’s happened since then—something akin to the “interactive” process for disability-related reasonable accommodation requests.
Editor’s Note: In several recent lessons, the Coach reviewed the new guidelines in depth, along with recommendations from our experts on how to comply with the new requirements. Check out the June 2016 issue, “Q&A on HUD’s New Guidance on Criminal Background Checks,” and the Special Issue, “Conducting Criminal Background Checks: Further FAQs & Follow-up.”
9. Watch How You Treat Families with Children
In a recent crackdown, HUD has been taking a hard look at communities that exclude or otherwise limit families with children from living there, so now’s a good time to review your policies and procedures to avoid similar problems at your community.
Don’t exclude families with children, says Sadovsky. Only qualified senior housing communities are allowed to restrict families with children from living there. To qualify, communities must meet strict technical requirements; otherwise, it’s unlawful to keep children from living at your community.
Don’t adopt unreasonable rules for children, says Green. Of most concern these days: the one that “all children must be accompanied by an adult when in the common areas/outside” or any variation along those lines. While the swimming pool and the exercise room might need some age restrictions because of legitimate safety issues, she warns that other restrictions are very dicey.
Editor’s Note: For more information, see the Coach’s August 2016 lesson, “Play by the Rules When It Comes to Kids and Their Families.”
10. Enhance Your Compliance Efforts
Finally, the experts offered some tips on ways to enhance fair housing compliance—and to avoid problems they’ve seen over the years.
Written policies and documentation. The best way to support the practice of fair housing is to have a current, correct, written policy about everything and a form and system to document everything, says Chasick. The easier it is to find and follow policy and to document, the more likely the policy will be followed, he says. If you don’t have written policies—or if you haven’t reviewed them in a while—then it’s something that you can do right now to cut your risks of a fair housing problem.
And don’t forget the basics, he says. Is the fair housing poster prominently displayed? In what language(s)? Does all advertising, signage, business cards, letterhead, and social media display the “Equal Housing Opportunity” logo? Are your occupancy and qualifying standards prominently displayed and discussed with every visitor?
Complaints. Thousands of fair housing complaints are lodged each year. Have a procedure for responding to such complaints—and follow the procedure, Johnson says. Make sure all employees fully understand the procedure.
Availability. The only people who should be answering questions about apartment availability are the people who are holding the current, accurate availability list, Chasick says. Train your maintenance staff—and everyone else—to refer all questions to that person. Otherwise, you run the risk that a prospect will get two different answers about availability—raising suspicions of discriminatory intent.
Rules violations. Before any eviction or non-renewal of lease for any reason, make sure that you have proof that you sent two or more written notices to the resident spelling out clearly the reason for the action along with documentation about any verbal contact with the resident. Any meeting with residents that warn of policy violations resulting in eviction, such as excessive noise, lack of animal cleanup, hoarding, and the like, should have a witness present when meeting at the office or at the apartment.
To avoid fair housing trouble long-term, Green said that it’s important to keep your ears to the ground on what the issues are at any particular time, even if there’s not yet clarity on what will happen in the long term. Assistance animals and parking are still major bones of contention, but right now, criminal background policies are the hot topic. The next big thing? It may be occupancy standards, and the continued validity of the two person per bedroom standard.
Rest assured that Fair Housing Coach is monitoring these developing trends, but you can also stay on top of things by getting updates from your attorney—or your state and local apartment associations. Green says that many of the associations have a membership class for “small owners” to make it more affordable for them, and that smart owners get involved because associations give information and support on legal and legislative issues.
- Fair Housing Act: 42 USC §3601 et seq.
F. Willis Caruso, Esq.: Chairman of the Board, Metropolitan Housing Development Corp. 8 S. Michigan Ave., Ste. 3100, Chicago, IL 60603.
Doug Chasick, CPM®, CAPS, CAS, Adv. RAM, CLP, SLE, CDEI: The Apartment Doctor, Melbourne Beach, FL; (321) 956-2188; email@example.com.
Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; firstname.lastname@example.org.
Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood & Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RHein@ApartmentLaw.com.
A.J. Johnson: A. J. Johnson Consulting Services, Inc., 3521 Frances Berkeley, Williamsburg, VA 23188; (757) 259-9920; email@example.com.
Anne Sadovsky, CAM, CAPS, CSP: Anne Sadovsky & Co., Dallas, TX; (866) 905-9300; firstname.lastname@example.org.
Carl York, CPM® Emeritus, CAM, CAPS: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.