The Dos & Don'ts of Fair Housing Training
This month, we are going to talk about how to beef up fair housing training—among the most important of the New Year's resolutions we recommended in the January 2011 issue. Though policies and procedures are essential to help ward off discrimination complaints, you must rely on your staff to apply the policies fairly and consistently to meet the challenges of complying with fair housing law.
The importance of training your staff—and the consequences of failing to do so—are illustrated in some recent headlines. In Oregon, for example, the Portland Housing Bureau (PHB) last month pointed to an audit showing bias in the rental screening process in Multnomah County. The testing, conducted by the Fair Housing Council of Oregon on the PHB's behalf, focused on two protected classes: race (African American compared to white), and national origin (Latino compared to white). The tests revealed differences in treatment across many areas of the rental screening process, including the cost of renting units, move-in specials, moving costs, and deposit and lease terms, among others. To address the problem, the PHB issued a number of recommendations, among them: educating property owners and managers about fair housing law.
“Fair housing education has never been more important. Landlords have an obligation to offer the same opportunities and the same policies for the same housing unit. Consistent application and inquiry processes can help keep all landlords from violating fair housing laws, even unintentionally,” Deborah Imse, executive director of the Metro Multi-Family Housing Association and a member of the Fair Housing Advisory Committee, said in a statement.
And in Michigan, the owners of 14 condominiums and two apartment buildings recently learned a costly lesson for their alleged failure to understand fair housing requirements. In March, the Michigan Department of Civil Rights reported that the owners agreed to a $60,000 settlement for alleged discriminatory housing practices, including refusing to rent to unmarried couples and steering families with children and men away from select units, over the past 30 years. According to the department, the owners admitted to the violations, citing their failure to learn applicable housing laws before conducting business.
“We are pleased that this investigation has resulted in a favorable conclusion. Not only will the activities engaged in by these owners likely cease as a result of this agreement, we hope that the attention it draws will give people in West Michigan a greater awareness of their rights as renters, and that it will cause other property owners to ensure that they have a clear understanding of their rights and responsibilities under the law,” Daniel H. Krichbaum, the department's executive director, said in a statement.
Knowing the importance of fair housing training is one thing, but presenting the information so that your staff can understand and apply it properly is quite another. Fair housing requirements can be complicated, so this month's lesson offers a clear, easy-to-follow format: the do's and don'ts of fair housing training. Then, at the end of our lesson, you can take the Coach's Quiz to see how much you have learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bans housing discrimination based on race, color, national origin, religion, sex, disability, or familial status. In addition, many state and local laws have expanded protection to other characteristics—marital status, sexual orientation, age, and source of income, to name a few.
On its face, fair housing law seems straightforward: It's illegal to exclude anyone—or to treat people differently—because of a protected characteristic. But avoiding discrimination claims is much more complicated. The law identifies certain unlawful housing practices—some clear-cut, such as “refusing to rent—but others are subject to interpretation, such as “making housing unavailable.”
Furthermore, it's sometimes hard to determine if a particular person is covered under the FHA, because some of the protected characteristics—such as disability and familial status—have precise legal definitions that must be understood to be applied properly. Meanwhile, the law contains special provisions with respect to disability and housing for older persons, to name a few.
Employees need guidance to follow these complex rules. Having written policies and procedures will help, but it's essential to provide training about the basics of fair housing law, as well as instruction on how the rules apply to everyday interactions with prospects, applicants, residents, and their guests. And since fair housing claims may arise simply from the perception of discrimination, training in customer service, cultural sensitivity, and other “soft” skills will help employees from inadvertently triggering a discrimination complaint.
10 RULES FOR FAIR HOUSING TRAINING: ESSENTIAL DOS and DON'TS
DO Include All Employees in Fair Housing Training
DON'T Focus Solely on Leasing Staff
When planning fair housing training, it's natural to think of employees in your leasing office; they are the ones most directly involved in the process of renting units to prospects. Their tasks—starting with their first contact with prospects, determining their needs, conducting tours, explaining rental standards, and taking applications—are often the source of fair housing problems.
Nevertheless, fair housing expert Anne Sadovsky says that all employees—ranging from administrative staff, housekeepers, maintenance workers, groundskeepers, and even attendants at fitness centers, pools, and other amenities—should undergo fair housing training. Whatever their job, your employees represent your community while interacting with members of the public, as well as prospects, applicants, residents, or their guests. Consequently, you could be called to defend a fair housing complaint for any comments or behavior—ranging from overt hostility to offhand remarks—that suggests your community engages in or tolerates unlawful discrimination.
An obvious example of overt discrimination is sexual harassment. Without proper safeguards and employee training, the community may be liable for a fair housing violation if a property manager, maintenance worker, or groundskeeper sexually harasses your residents. But there are countless other ways in which potential claims could arise, including how a receptionist answers the phone, a maintenance worker handles a repair request, or a pool attendant deals with unruly children. To avoid fair housing problems, you must ensure that your entire staff knows the basics of fair housing rules so they won't say or do anything that may either directly or inadvertently trigger a discrimination complaint against your community.
COACH'S TIP: Don't forget about vendors or contractors—anyone who is not your direct employee, but performs services at your community on your behalf. Depending on the circumstances, you could be liable for fair housing violations committed by outside contractors if you knew that they were harassing or discriminating against your residents but failed to do anything to stop it. Though it may not be practical to require them to undergo fair housing training, you can take steps to protect your community. As an example, Sadovsky says that you may require them to sign a statement confirming that they will refrain from discriminatory comments or conduct while working on your property. For further guidance, see the February 2009 issue of Fair Housing Coach, “How to Protect Your Community from Fair Housing Violations by Outside Contractors.”
DO Train New Hires Before They Deal with the Public
DON'T Get New Hires to Work ASAP
Make sure all new employees, whatever their job, get at least some basic fair housing training as soon as they are hired. Don't wait until you conduct a formal fair housing session, which could be scheduled some months away. Before they are allowed to interact with the public, train new hires in your community's policies and procedures as well as what employees can and can't do under fair housing law.
Make sure new employees understand that they should treat everyone politely and professionally, and warn them against asking personal questions or making stray comments that could be offensive or illegal under fair housing law. Emphasize that they should ask for guidance if they are unsure what to do in a particular situation—and that they know whom they can ask for help.
DO Schedule Training Sessions at Least Annually
DON'T Assume Once Is Enough for Formal Training
Provide employees with fair housing training at regular intervals—at least once a year, according to Sadovsky. She says that April, which is celebrated each year as Fair Housing Month, is a perfect time to schedule annual training sessions.
It's not a good idea to train employees only once or to allow too much time to go by without giving your staff some refresher training in fair housing law. Employees come and go, memories fade, and novel situations arise all the time, so you may be vulnerable to fair housing complaints if prospects are treated differently by different staff members. Periodic training serves to maintain consistency by ensuring that everyone understands the rules and knows how to apply them.
DO Cover Federal, State, and Local Fair Housing Laws
DON'T Focus Solely on Federal Law
Make sure your training covers all fair housing laws applicable to your community. In addition to the seven federally protected characteristics—race, color, religion, national origin, sex, disability, and familial status—many communities are subject to state and local laws that have extended protection based on marital status, age, and source of income, and other attributes.
Most recently, state and local governments across the country have enacted measures to ban discrimination based on sexual orientation, or to add gender identity to current laws protecting sexual orientation. At last count, 20 states and more than 200 local governments have made housing discrimination against lesbian, gay, bisexual, and transgender persons illegal, according to HUD, which has proposed regulations to ban such discrimination in federally assisted housing programs.
Furthermore, some communities are subject to state and local laws that ban discrimination against many others, including domestic violence survivors, veterans, and students—even those with criminal records under certain circumstances. For example, Sadovsky points to Madison, Wis., which bans housing discrimination based on as many as a dozen characteristics beyond the seven covered under federal law and five under state law.
Meanwhile, some governments, particularly on the local level, are actively considering measures to expand fair housing protections, so it's important to keep your staff posted on any changes to the laws applicable to your community. Though penalties under state and local law generally are not as high as those under federal law, defending any discrimination complaint will drain your time and resources, and may be just as costly in damage to your reputation.
DO Thoroughly Explain Disability-Related Fair Housing Rules
DON'T Confuse Federal Requirements on Disability
Pay particular attention to fair housing provisions on disability—the most frequent source of formal fair housing complaints. The large percentage of discrimination claims based on disability is, at least in part, due to the additional protections afforded individuals with disabilities under the FHA, according to HUD. Among other things, these additional provisions make it illegal to refuse to make a reasonable accommodation to rules, policies, practices, or services to enable an individual with a disability to fully use and enjoy the property.
Disputes over requests for reasonable accommodations, particularly involving parking and service animals, are among the most difficult to resolve. For one thing, the law does not require applicants or residents to use the term “reasonable accommodation” or any other particular language when making an accommodation request. Therefore, employees must learn that a resident is making a request whenever he makes it clear that he needs or wants an exception, change, or adjustment to a rule, policy, or practice because of a disability.
Furthermore, the training should cover who does—and does not—fall within the FHA's definition of an individual with a disability, when housing providers may request disability-related information, and how to determine when an accommodation request is both reasonable and necessary. In most cases, decisions on reasonable accommodations will require management or legal involvement, but all employees should be familiar with the basic rules so they can recognize accommodation requests and avoid inadvertently triggering a fair housing problem.
Avoid confusion between the FHA's disability-related requirements with those in other federal laws, notably the Americans With Disabilities Act (ADA). Federal officials recently approved final regulations on the ADA, which has led to some confusion, particularly with respect to service animals. In general, the new ADA regulations limit service animals to dogs (and miniature horses, in some cases) and require that the animals be specially trained. That seemingly conflicts with fair housing law, which encompasses a broad range of animals and does not require specialized training for an animal to be considered an assistance animal under the FHA.
Fair housing experts say that there should be no confusion because the ADA applies only to places of public accommodation—that is, areas that are open to the public. Within a rental community, that's usually limited to your leasing office, and perhaps your pool or clubhouse if you permit members of the public (people who are not residents or guests of residents) to use them. With those limited exceptions, the bulk of your community—individual units, common areas, and private amenities—is governed by the FHA, not the ADA, so you must abide by the FHA's broader definition of assistance animals.
DO Describe Desirable Property Features
DON'T Discuss Personal Attributes of Prospects or Residents
Warn employees to watch what they say—because making discriminatory statements is a separate violation of fair housing law. Unlike other prohibited practices banned by the FHA, liability for making discriminatory statements does not require proof of discriminatory intent. Rather, the focus is on whether the statement would suggest a preference for—or against—a protected class to the “ordinary reader or listener.”
To avoid violating these provisions in preparing ads and talking to prospects, train employees to limit themselves to describing the features of available units and the community—not the personal attributes of desired prospects or current residents. It's pretty clear that it's illegal to use terms such as “No kids,” in advertising or to tell prospects that your community does not rent to families with children.
But you could also get into trouble if employees use terms such as “empty nesters,” or emphasize only adult social activities or amenities, because they suggest that your community has a preference against families with children. Instead, employees should emphasize the positive features of the community, such as a wide variety of floor plans, amenities, and activities, available to all residents.
DO Limit Small Talk to Neutral Subjects
DON'T Make Comments on Personal Attributes
Remind employees that they could inadvertently trigger a fair housing complaint during casual conversation if they step over the line by asking questions or making comments about a prospect's personal attributes, such as their appearance, clothing, disability, or children.
Even if it's out of simple curiosity, it's illegal to ask disability-related questions—for example, by asking a prospect in a wheelchair about the nature of his condition. Furthermore, even if not illegal in and of themselves, comments or questions about a prospect's personal appearance, such as a headscarf or clothing common to certain ethnic or religious groups, could raise the suspicion that people are treated differently because of their religion or national origin.
During your training, reinforce that employees represent your community and that any comments they make—however innocently—related to a protected characteristic could be taken the wrong way. Basically, Sadovsky says, that means that employees must remember where they are, and that comments and questions that they could make on their own time—for instance, while waiting in line at the grocery store—are inappropriate while they are at work. As an example, Sadovsky says, it may be fine to ask a woman in the grocery store line about the ages of her five adorable children, but asking the same questions of a prospect in your leasing office could lead to fair housing trouble.
COACH'S TIP: For the same reason, train employees on what to say if a prospect initiates a conversation about the personal attributes about your residents or those living in neighboring units. Warn them against inadvertently falling into the trap of discussing the type of people who live in your community during what seems like a casual conversation.
DO Find Out What Prospects Want
DON'T Act on What You Think They Want
In training leasing consultants, emphasize that they should find out what prospects are looking for when inquiring about vacancies—the type of unit, the price range, and other features—as opposed to acting on preconceived notions about what would best suit the prospect. Making assumptions about what a prospect would want—and doing anything to limit his choices based on those assumptions—raises the specter of unlawful steering.
In general, unlawful steering means suggesting, guiding, or discouraging a prospect against living in the community, or in certain parts of the community, based on a protected characteristic. An obvious example is to reserve certain buildings or floors for certain racial or ethnic groups, or families with children. Another is to tell prospects with children or those with a disability only about vacancies on the ground floor—or warning them of the hazards or inconvenience of living in upper-floor units. Limiting a prospect's housing choices because of his race, color, national origin, religion, sex, disability, or familial status is a violation of the FHA.
DO Enforce Lease Terms, Rules Consistently
DON'T Single Out Some Prospects for Lease, Rule Violations
Train your staff to provide prospects and applicants with the same information—in the same way—about your rental standards, lease terms and conditions, and community rules. Consistency is important because the FHA makes it unlawful to impose different terms, conditions, or privileges of rental based on a protected characteristic. Make sure they explain to all prospects, applicants, and residents the substance of your community rules so they know what's expected and the consequences of failing to meet those requirements.
For the same reason, your staff must enforce community rules fairly—it is unlawful to come down hard on some residents, such as racial minorities, for rules violations, but turn a blind eye when white residents or others commit similar transgressions. The same goes for children: While you are allowed to have reasonable rules to protect residents' safety and quiet enjoyment of the property, you may not unfairly enforce the rules only against families with children.
DO Maintain Good Records
DON'T Ignore Paperwork or Discard Records Prematurely
Make sure that the training emphasizes the importance of good record keeping, because you'll need it to defend yourself if your community ever faces accusations of a fair housing violation.
In general, the better your paperwork, the quicker and less expensive it will be to resolve a claim. In addition to formal documents—such as rental applications, leases, and legal paperwork—employees need to maintain internal files, such as phone logs, guest cards, unit availability records, maintenance and repair files, as well as records of complaints by or about residents and what you did about them.
Don't forget to keep good records about your fair housing training program. Document how often you conduct the training, what was covered, and attendance records to identify the name, date, and time that employees participated in the training. These documents demonstrate your commitment to fair housing principles and your good-faith effort to ensure that all your employees—from property managers to maintenance staff—understand and follow the law.
Finally, make sure your staff knows that they should not throw away old files too quickly. Sadovsky recommends retaining paperwork for at least three years, and to make sure that it's accessible, so you can find it in case you need it.
Fair Housing Act: 42 USC §3601 et seq.
Anne Sadovsky, CSP: Anne Sadovsky and Co., Dallas, TX; (866) 905-9300; firstname.lastname@example.org.
Carl York: VP, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.
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|June 2011 Coach's Quiz|