Fair Housing FAQs: Answering Your Questions About Fair Housing Compliance

In honor of Fair Housing Month, we're going to tackle some of the frequently asked questions (FAQs) about fair housing that come up in conventional multifamily housing communities.

We'll start with fair housing basics—who is covered, who may be liable, what conduct is banned, and the consequences of failing to comply. Along the way, we'll point out the nuances to explain, for example, exactly who is covered under the familial status provisions. We'll talk about common problems that arise from dealing with prospects, applicants, and residents. In the final segment, we'll home in on the most common source of formal fair housing claims—the law's disability-related provisions.

Keep this issue handy—it's a good starting point for answers to common concerns about fair housing compliance. And we've included pointers on where to go if you need more detailed information for handling sticky situations. Finally, you can take the COACH's Quiz to see how much you've learned.

COACH'S TIP: With few exceptions, all multifamily housing providers must comply with federal, state, and local fair housing laws. In addition, public housing and federally assisted housing communities are subject to more stringent antidiscrimination requirements. For example, federal fair housing law does not ban discrimination based on sexual orientation or gender identity, but HUD recently adopted a formal rule to do so in communities that receive federal funding. The final rule, Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity, is available at http://portal.hud.gov/hudportal/documents/huddoc?id=12lgbtfinalrule.pdf.

17 FAQs on Fair Housing Compliance

Part I: Fair Housing Basics

FAQ #1: Who Is Protected Under Federal Fair Housing Law?

The federal Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability. These terms seem self-explanatory, but nuances in the law's definitions sometimes extend fair housing protections beyond what appears to be obvious on the surface.

Race and color. Though often lumped together, these characteristics are different, so fair housing claims could be based on race or color—or both. Race generally refers to a person's physical appearance, while color refers to a characteristic of a person's race.

National origin. In general, national origin refers to the country that an applicant or his ancestors come from. In some cases, discrimination claims based on national origin are closely tied to claims based on race, color, and sometimes religion.

Religion. The generally accepted definition of religion refers to a particular faith or belief system, but fair housing experts say that it may also cover individuals who are not affiliated with a particular religion or do not ascribe to particular religious beliefs.

Sex. As used in the FHA, sex generally refers to gender—that is, discrimination against either men or women because of their gender. Sexual harassment is considered a form of discrimination based on sex.

In some cases, victims of domestic violence may be covered under the sex discrimination provisions since women are predominantly the victims of domestic abuse.

In contrast, the ban on sex discrimination does not cover claims based on sexual orientation, although HUD's position is that claims based on gender identity could be considered sex discrimination if, for example, a resident claims harassment “because she wears masculine clothes and engages in other physical expressions that are stereotypically male.”

Familial status. Under the FHA, familial status means households with one or more children who are under 18 years of age, where the child is living with:

• A parent;

• A person who has legal custody (such as a guardian); or

• A person who has the written permission of the parent or legal custodian to care for the child.

Also included are pregnant women and those in the process of securing legal custody of a minor child, such as a foster or adoptive parent.

Disability. Technically, the law bans discrimination based on “handicap,” though the term “disability” now is more commonly used. Disability generally means a physical or mental impairment that substantially limits one or more major life activities. It applies to individuals who have a disability, have a record of a disability (such as a medical history of such an impairment), or are regarded as having a disability (such as someone who is believed to have a mental illness, but in fact does not have such an impairment). The law generally excludes individuals who currently use illegal drugs or pose a direct threat to the health and safety of others.

FAQ #2: Are There Any Additional Protected Classes?

Yes, depending on where a community is located. Many state and local governments have expanded their fair housing or civil rights laws to include marital status, sexual orientation, gender identity, source of income, age, ancestry, military status, and other characteristics.

COACH'S TIP: For a state-by-state breakdown of state fair housing laws, see the August 2011 Fair Housing Coach, “State Law Roundup: Checklist of State Fair Housing Protections,” available at www.FairHousingCoach.com.

FAQ #3: Can Someone Who Isn't a Member of a Protected Class File a Fair Housing Complaint?

Yes, anyone injured by a violation of fair housing law may file a claim. The law recognizes claims by prospects, applicants, and residents who suffer discrimination because they are members of a protected class—or because their household members, relatives, friends, or guests are members of a protected class. That means that a white resident could file a fair housing claim if he is harassed because he entertains African-American friends in his unit.

In addition, the law protects the white resident's household members, relatives, friends, or guests if they are subjected to discrimination or harassment because of their race or other protected characteristic. Such claims may arise if a community denies housing to an interracial couple or the white mother of a biracial child.

Moreover, a community's own employees may pursue fair housing claims—regardless of whether they are members of a protected class—under the law's anti-retaliation provisions. For example, an employee could sue for retaliation if she was fired for helping a resident pursue his rights under fair housing law or for cooperating with officials during a HUD investigation.

COACH'S TIP: Government and private organizations also may file fair housing claims. Federal, state, and local enforcement agencies may initiate proceedings either in response to a complaint or on their own initiative. In addition, private fair housing organizations may pursue fair housing claims, either on behalf of an individual alleging a discriminatory practice or on their own behalf under certain circumstances.

FAQ #4: Who May Be Held Liable for Fair Housing Violations?

Community owners, property managers, individual employees, and outside contractors—along with real estate professionals and others—may be held liable for housing discrimination under federal fair housing law.

Because the law requires community owners to ensure compliance with fair housing requirements, an owner may be liable not only for discriminatory actions it has taken—such as adopting discriminatory policies—but also for the discriminatory acts of its employees or agents—for example, if an employee or outside contractor sexually harasses female residents.

FAQ #5: What Conduct Is Banned Under Fair Housing Law?

The FHA outlaws certain rental practices if based on race, color, religion, national origin, sex, disability, and familial status, including:

• Refusing to rent or negotiate for housing.

• Making rental housing unavailable.

• Falsely denying that housing is available for inspection or rental.

• Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures.

• Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms.

• Providing different housing services or facilities, such as access to community facilities.

• Failing or delaying maintenance or repairs.

• Discouraging the rental of a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable or incompatible with existing residents.

• Assigning residents to a particular section of a community or floor of a building.

• Threatening, coercing, intimidating, or interfering with anyone exercising a fair housing right or assisting others who exercise that right.

• Making, printing, or publishing any statement that indicates a preference, limitation, or discrimination (which applies to single-family and owner-occupied housing otherwise exempt under the FHA).

In addition, the FHA considers it unlawful discrimination based on disability to:

• Refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for the individual with a disability to fully use and enjoy the housing.

• Refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident's expense, if necessary for the individual with a disability to fully use the housing.

• Fail to meet accessibility requirements in the design and construction of rental housing with four or more units that were first occupied after March 13, 1991.

FAQ #6: What Are the Penalties for Violating Fair Housing Law?

In general, it depends on the procedural process used to pursue the claim. One path is administrative: a complaint filed by an individual, private fair housing organization, or federal, state, or local officials. The other path is a civil lawsuit filed in federal or state court.

Depending on the path taken, potential liability for a fair housing violation may include:

• Civil penalties;

• Compensatory damages to cover financial losses (such as increased housing costs if an applicant was wrongfully denied housing) or emotional distress (such as the mental anguish of a female resident subjected to sexual harassment);

• Punitive damages, when warranted to punish wrongdoers and deter others from similar misconduct; and

• Attorney's fees and court costs.

In addition, those found liable for housing discrimination may be subject to court orders either to take affirmative action (such as correcting design and construction defects) or to stop discriminatory conduct in the future.

PART II: COMMON FAIR HOUSING PROBLEMS

FAQ #7: How Does Fair Housing Law Apply to Advertising?

Under the FHA, it's unlawful to make, print, or publish any notice, statement, or advertisement related to the rental of a dwelling that indicates any preference, limitation, or discrimination based on a protected characteristic. The rules apply to words, phrases, photographs, illustrations, symbols, or forms that express a preference against members of protected groups—such as “no blacks” or “no kids—or a preference for others—such as “Christians preferred” or “perfect for singles,” according to HUD.

In contrast to other provisions of the FHA, liability for making discriminatory statements doesn't require proof of discriminatory intent. Instead, the focus is on whether the statement would suggest a preference to an “ordinary reader or listener.”

In addition to oral and written statements, the rules apply to all advertising media, including newspapers, magazines, television, radio, and the Internet. Fair housing experts believe it extends to emails, online advertising venues, community Web sites, and even social media outlets.

Moreover, liability may arise from selective marketing—that is, choosing media or locations for advertising that deny particular segments of the housing market information about housing opportunities because of a protected characteristic.

COACH'S TIP: For more information, see the November 2011 Fair Housing Coach, “How to Avoid Fair Housing Problems in New Media,” available at www.FairHousingCoach.com.

FAQ #8: What Are Potential Pitfalls When Dealing with Prospects?

Claims can arise from the initial contact with someone expressing interest in the community, be it in person, over the phone, via email, or using a community's online system. A claim could come from a bona fide prospect, or it could come from a fair housing tester—that is, someone posing as a prospect to gauge whether individuals with certain protected characteristics are treated differently than others.

Though traditionally accomplished through visits to the community, fair housing testing now includes phone inquiries—and more recently, email or online communications. Testing may uncover overt discrimination—cases where communities turn away or misrepresent the availability of vacancies to, say, families with children.

It may also uncover more subtle forms of discrimination: linguistic or email profiling—that is, treating a prospect differently because his manner of speech, accent, or name suggests that he's a member of a protected class. For example, prospects who are African American, Hispanic, Asian, or Middle Eastern could claim unlawful profiling based on race, national origin, or religion if phone calls or online inquiries are not returned because of their names or the way they sound on the phone.

Claims also can arise from the way prospects are treated when they visit your office. It could be because of the way they look—or because a staff member is having a bad day—but a prospect who is ignored, treated rudely, or otherwise subjected to unprofessional conduct may suspect unlawful discrimination is to blame.

FAQ #9: What Kinds of Problems Arise When Showing Units?

Conducting tours can trigger a fair housing complaint if it's not done properly. A major trouble spot is steering: It's unlawful to limit a prospect's housing choices by telling him about only some vacancies, but not others that meet his criteria, because of judgments about where he should live. Intentions may be benign—for example, showing families with children or prospects who use a wheelchair only ground-floor units based on concerns for their safety or comfort. Or it could be discriminatory—showing vacancies in only certain areas within the community to individuals from particular racial or ethnic groups or families with children—to keep them away from long-term residents who may object to their presence. Either way, it's a violation of fair housing law.

In addition, unlawful steering includes discouraging someone from looking at certain units because of a protected characteristic—either by exaggerating the drawbacks or withholding information about desirable features of the unit or the area in which it's located.

Claims may also arise from inconsistencies in whether, when, and under what circumstances tours are conducted. For example, many communities require prospects to produce some form of photo identification before leasing consultants will take them on a tour of available units. For the most part, communities may establish whatever policy they choose regarding photo IDs, but fair housing problems arise if it's not applied consistently—for example, by dispensing with the requirement for white prospects, but strictly enforcing the policy for African-American prospects.

FAQ #10: What Are Potential Pitfalls When Dealing with Applicants?

Problems often arise due to inconsistencies in how applications are taken, processed, and decided upon. Fair housing law bans communities from imposing different qualification criteria or application procedures—such as income standards, application requirements, application fees, credit analyses, or approval procedures—because of a protected characteristic. For example, communities may not impose stricter income or employment verification standards on members of particular racial or ethnic groups than on white applicants.

It's also unlawful to apply different lease terms, such as those related to rental charges or security deposits, for discriminatory reasons. For example, it's unlawful to require recent immigrants to pay an additional month's rent because of concerns that they may leave the country before the end of the lease term.

A decision to deny an application often triggers a fair housing complaint. Communities may reject applications that don't meet reasonable and objective screening criteria, but problems may arise from the way a rejection is handled. Unless the process is performed consistently and in a respectful manner, an applicant may suspect that your stated reason for rejecting the application was merely an excuse to cover up unlawful housing discrimination.

FAQ #11: What Are the Trouble Spots When Dealing with Residents?

Fair housing complaints from residents often boil down to a lapse in consistency. The FHA makes it unlawful to discriminate against residents in the terms, conditions, or privileges of their tenancy—or in the provisions of community services or facilities—because of a protected characteristic.

For example, an extended delay in responding to maintenance requests from an Hispanic resident, while promptly attending to a white resident's request could trigger a claim. It could be a simple misunderstanding—the Hispanic resident's request was put on hold because of an emergency request in another part of the community—but without proper communication, the resident may suspect discriminatory treatment.

FAQ #12: What Common Problems Arise from Community Rules?

In general, community rules trigger fair housing problems in one of two ways—either the rules are enforced unfairly or the rules themselves are unfair.

The first relates to consistency. Communities face potential liability if members of a protected class are singled out for strict enforcement of the rules, while enforcement against others is lax. For example, it would be unlawful to come down hard on African-American residents for breaking the rules while ignoring similar infractions by white residents.

The second relates to the fairness of the rules themselves. For example, communities have legitimate reasons to govern resident behavior in common areas, such as hallways, parking lots, and outside spaces, but rules that unreasonably target children or limit their behavior in common areas could lead to a complaint of discrimination based on familial status.

FAQ #13: How Can Communities Minimize Problems When Dealing with Troublesome Tenants?

Communities may have legitimate reasons for taking action against residents who fail to pay their rent on time, disturb their neighbors, damage community property, or break community rules, but a problem tenant may lodge a discrimination complaint in an effort to derail eviction proceedings.

Nothing can be done to prevent frivolous complaints, but communities have the means to expose the truth—and to protect themselves from liability. The key is to document the nature of the resident's misdeeds—including records of late or missing payments, complaints from neighbors and ensuing investigations, and good faith efforts to resolve the problem short of eviction. Proof that the resident committed serious lease or rules violations, that he failed or refused to remedy the problem, and that others were evicted for similar misconduct should dispel unfounded discrimination claims.

COACH'S TIP: Get legal advice before taking action against a problem resident who already has a pending fair housing complaint against the community. The law doesn't require communities to overlook serious lease or rules violations simply because a resident has filed a discrimination complaint, but any adverse action against the resident raises the potential for a retaliation claim. The FHA has a separate provision banning housing providers from harassing, coercing, or intimidating anyone for exercising her fair housing rights, which means that communities may be held liable for retaliating against anyone for filing a fair housing complaint—even if the initial complaint turns out to be groundless.

PART III: COMMON DISABILITY-RELATED FAIR HOUSING PROBLEMS

FAQ #14: How Does the FHA Restrict Disability-Related Inquiries?

The FHA has strict rules restricting disability-related inquiries. In general, housing providers may not ask questions to determine whether an applicant or resident (or someone in his household or associated with him) has a disability—or to determine the nature or severity of a disability.

During the application process, the law permits inquiry into the ability of an individual with a disability to meet the requirements of the tenancy—as long as the same questions are asked of all applicants, regardless of disability. Communities also may ask whether an applicant is qualified either for a dwelling available only to individuals with disabilities or for a priority available only to such individuals.

Notably, there's a limited exception that allows disability-related inquiries when necessary to respond to requests for reasonable accommodations or modifications by or on behalf of an individual with a disability. But that doesn't mean that communities have free rein to ask questions about an individual's disability or to demand medical records. The rules are complicated, but the exception generally applies only if either the resident's disability—or the disability-related need for the requested accommodation or modification—is not obvious or apparent.

FAQ #15: When Do the Reasonable Accommodation Rules Apply?

The basic rule requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. Requests may be made at any time before or during a tenancy. And the rules require a prompt response—an unreasonable delay is considered a refusal to make the requested accommodation.

The rule applies only if the individual with a disability—or someone on his behalf—makes the request, but the law doesn't require him to use any specific language to make a request. According to HUD, it's a reasonable accommodation request any time a person makes it clear that he's requesting an exception, adjustment, or change to a rule, policy, practice, or service because of a disability.

The rules don't apply unless the individual qualifies under the FHA's definition of disability. That includes a vast array of physical and mental impairments, but it generally excludes temporary conditions. Nor does it cover minor problems—the impairment must substantially limit a major life activity, such as seeing, walking, and breathing. The rules allow limited disability-related inquiry to verify that an individual qualifies under the FHA's definition of disability—but only if it's not obvious or apparent.

In addition, the rules apply only if the requested accommodation is necessary—that is, there's an identifiable connection between the requested accommodation and the individual's disability. Again, the law allows communities to verify the disability-related need for the requested accommodation—but only if it's not obvious or apparent.

Finally, the requested accommodation must be reasonable—that is, it does not impose an undue financial and administrative burden on the community or fundamentally alter its operations. When denying a requested accommodation because it's not reasonable, communities are advised to engage in an “interactive process—a discussion with the requester about whether there's an alternative accommodation that would effectively address his disability-related needs without imposing an undue administrative and financial burden or fundamentally alter the community's operations.

FAQ #16: What Are the Rules on Assistance Animals?

The important thing to remember is that assistance animals are not considered pets under fair housing law.

Although communities may adopt “no-pets” policies, it's unlawful to deny a request for an assistance animal as a reasonable accommodation for an individual with a disability. And just as you may not ban, limit, or charge extra fees because an individual with a disability uses a wheelchair, you may not enforce similar restrictions on reasonable accommodation requests by applicants or residents who have a disability-related need for an assistance animal.

Don't be confused by recent rules restricting service animals to specially trained dogs (and in some cases, miniature horses) under the Americans with Disabilities Act (ADA). The ADA doesn't overrule the FHA's broad provisions that consider assistance animals to include a vast array of animals that provide a variety of services or tasks. The FHA applies equally to a guide dog used by a resident with a visual impairment and to a reptile kept as an emotional support animal by an individual with post-traumatic stress disorder.

COACH'S TIP: For more detailed information, see the September 2011 Fair Housing Coach, “Answering Your Questions About Assistance Animals.”

FAQ #17: What Are the Rules Governing Reasonable Modifications?

The FHA makes it unlawful to refuse to permit an individual with a disability, at his own expense, to make reasonable modifications to the housing if necessary to afford him full enjoyment of the premises.

The rule applies to both the interior of a unit, as well as public and common use areas of buildings. When it's reasonable to do so, the community may condition approval of a modification request on the resident's agreement to restore the interior of a unit at the end of the tenancy—but the law doesn't require residents to restore areas outside their units.

The procedures for handling reasonable modification requests track those pertaining to reasonable accommodation requests. For example, an applicant or resident isn't entitled to a reasonable modification unless it's requested by or on behalf of an individual with a disability. The verification rules are roughly the same, as is the requirement that there be an identifiable disability-related need for the requested modification.

One major difference is in who pays the costs related to reasonable modifications. The resident is responsible for paying the costs of reasonable modifications, while the community is generally required to pick up the expenses associated with reasonable accommodation requests, as long as they aren't excessive.

COACH'S TIP: When it comes to requests for parking spaces, federal officials cite court rulings that treat them as reasonable accommodation requests—even though they affect the physical premises and sometimes involve costs for signage, curb cuts, and the like.

• Fair Housing Act: 42 USC §3601 et seq.

• HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf.

• HUD guidance: Reasonable Modifications Under the Fair Housing Act, www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf.