Holiday Celebrations And Religious Discrimination Claims

This month, we are going to focus on avoiding discrimination claims based on religion. Housing communities face particular fair housing challenges this time of year, when many residents celebrate a number of religions' holidays. Fair housing law does not prevent you from celebrating the season—as long as your community doesn't appear to be promoting any particular religious holiday or favoring one religion over another.

Nevertheless, it's important to remember that a religious discrimination complaint could arise at any time of year. Fair housing law makes it unlawful to exclude or otherwise discriminate against applicants or residents because of their religion. So if you explicitly or implicitly suggest that you have a preference for—or against—members of certain religious groups in the way you advertise, market, or operate your housing community, you could be accused of violating fair housing law.

This month, we are going to review federal, state, and local laws that prohibit discrimination based on religion. Then we'll suggest seven rules to avoid claims of religious discrimination during the holidays—and all year long. Finally, you can take the COACH's Quiz to see how much you have learned.

WHAT DOES THE LAW SAY?

Under the Fair Housing Act (FHA), it is unlawful to exclude or otherwise discriminate against applicants and residents on the basis of religion. That means that you can't treat people differently because they are members of a particular faith. And although the FHA does not define “religion,” fair housing experts say that the law's protections are broad enough to prohibit discrimination against individuals who are not affiliated with a particular religion or do not ascribe to particular religious beliefs.

Fair housing claims may arise if your advertising or application practices indicate that your community has a preference for or against applicants based on their religion. Furthermore, fair housing complaints could arise if your policies or practices favor members of one religion over those of another or otherwise treat residents differently because of their religious beliefs.

In addition to federal law, many state and local laws protect both religion and “creed,” or combine the terms to refer to “religious creed.” In Tennessee, for example, state law refers to both religion and creed, while the laws in Massachusetts and Pennsylvania refer to “religious creed.”

In New Jersey, where the law bans discrimination based on creed, civil rights officials say that the law protects individuals who:

• Belong to a particular religious faith or attend a particular place of worship;

• Are nonbelievers;

• Are associated with a person of a particular religion;

• Are perceived to be of a particular faith, even though they are not actually of that faith; or

• Have sincere and meaningful moral or ethical beliefs that are held with the strength of traditional religious views.

But, state officials add, the New Jersey law banning discrimination based on creed generally does not apply to protect a person's political or social views, such as to protect a person who is a member of the Ku Klux Klan.

COACH'S TIP: The FHA includes a narrow exemption that allows religious organizations, which own or operate housing for noncommercial purposes, to limit occupancy or give preferential treatment to members of the same religion, as long as membership in the religion is not restricted on account of race, color, or national origin.

7 RULES FOR PREVENTING DISCRIMINATION CLAIMS BASED ON RELIGION

Rule #1: Make Sure Marketing Materials Don't Reflect Religious Preference

Check to ensure that your advertising and marketing practices and materials do not indicate that your housing community has a preference for or against applicants based on their religion.

The FHA makes it is unlawful to make statements that indicate any preference, limitation, or discrimination based on religion and other protected characteristics. According to federal regulations, you may not use “words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons because of…religion.” According to HUD, that means that advertisements may not include explicit preferences—such as “Christian community—or limitations—such as “No Jews.” It is also unlawful under the FHA to advertise that you prefer only those who are members of an organized religion.

Example: In September 2009, the U.S. Department of Justice announced a settlement of a lawsuit filed under the FHA against an insurance company that allegedly discriminated because of religion by advertising special benefits and discounts available only to “churchgoers” and “persons of faith.” Allegedly, the company offered the special endorsement in at least 19 states and used an application form that included a space for applicants to indicate their “denomination.” Pending court approval, the settlement calls for the company and two agents to pay a total of $29,500 to three victims of discrimination and an additional $45,000 to the government as a civil penalty, and to stop the alleged discriminatory practices [U.S. v. GuideOne Mutual Insurance Co., Kentucky, September 2009].

COACH'S TIP: You could face a fair housing challenge if you market your community only in religious publications or outlets. According to HUD regulations, it is discriminatory to advertise in a manner that denies particular segments of the housing market information about housing opportunities based on religion. Fair housing experts advise advertising in a broad range of media or locations to avoid accusations that you are favoring one religious group over others.

Rule #2: Avoid Appearance of Religious Preference

Even if you don't intend to discriminate against applicants or residents based on their religion, you could unintentionally suggest you have such a preference for members of one religion over another. Though unlikely, by itself, to lead to a fair housing complaint, evidence of an implied preference could be used against you if there is other evidence of religious discrimination.

For example, HUD has said that advertisements of descriptions of the housing community, such as “apartment complex with chapel,” or services, such as “kosher meals available,” do not on their face state a preference for persons likely to make use of those facilities, and are not violations of the FHA. But that doesn't mean that you should emphasize religious amenities, such as your community's proximity to a particular church or other house of worship, according to fair housing experts, who warn that they suggest a preference for members of that faith.

HUD observes that in some cases, the name of the housing community—such as the “Roselawn Catholic Home—or use of a religious symbol—such as a cross—in an advertisement could indicate a religious preference. Nevertheless, HUD says that it will not be considered a fair housing violation if the ad includes a disclaimer to indicate that the housing community does not discriminate on the basis of race, religion, and other protected characteristics. In most cases, however, fair housing experts caution against use of religious symbols in your advertising or marketing materials unless there are special circumstances such as, for example, when it's part of a registered trademark or logo.

Rule #3: Leave Religion Out of the Application Process

Take a close look at your application policies and procedures to ensure that they do not have the effect of excluding or otherwise discriminating against applicants based on their religious affiliation or beliefs.

During the screening process, you could get into trouble if you ask questions that directly—or indirectly—refer to an applicant's religion. Do not ask about whether applicants are religious, belong to a particular religion, are affiliated with a house of worship, or belong to a religious organization.

And be careful about how you respond if prospects ask you about the religion of your residents. An inappropriate response to such a question could get you into trouble—especially if the person asking you the question is really a tester—that is, someone hired to pose as a prospect to find out if a community is committing fair housing violations. Fair housing experts recommend being prepared for such questions by giving a stock answer, such as: “I'm sorry, but our company policy and fair housing law don't permit me to answer that question.”

You could also get into fair housing trouble during the application process if you make subjective judgments about an applicant's ability to meet your screening criteria because of the way they look or dress. It is unlawful to discriminate against applicants who adhere to certain grooming standards or wear certain apparel as a matter of religious expression. For example, you could face a discrimination complaint if your leasing staff turns away an applicant simply because she is wearing a hijab (a body covering and/or head scarf worn by some Muslim women). Similarly, you could be accused of discrimination if you show distaste for an applicant because of his grooming habits, because the applicant could be a practicing Rastafarian who, in accordance with his religion, does not shave or cut his hair.

COACH'S TIP: Don't get carried away in your efforts to avoid creating the appearance of a religious preference by unlawfully interfering with employees' rights to religious expression. Under federal law, employers must permit employees to engage in religious expression, unless the religious expression would impose an undue hardship on the employer, according to the Equal Employment Opportunity Commission. Some reasonable religious accommodations that employers may be required to provide workers include leave for religious observances, time or place to pray, and ability to wear religious garb.

Rule #4: Treat Residents Consistently—Regardless of Religion

Adopt policies and practices to ensure that your community does not treat residents differently based on their religious affiliation or beliefs.

The FHA bars communities from discrimination in the terms, conditions, or privileges of rental of a dwelling—such as imposing higher fees or more onerous lease terms—or the provision of services or facilities at the housing community—such as withholding or delaying maintenance services—on the basis of religion. The law also prohibits communities from steering applicants to certain areas within the community because of their religion. Make sure that your entire staff understands that they may not give preferential treatment to members of their religion—or less favorable treatment out of prejudice against members of other religions.

Example: Earlier this year, a New Jersey housing community agreed to pay $200,000 to settle claims that it violated the FHA on the basis of race, religion, and national origin, according to the Justice Department. The complaint alleged that, between 2002 and 2004, the community's owners and managers transferred or attempted to transfer Hispanic and African-American tenants from their units located in its most desirable building to make room for Orthodox Jews whom they courted as new residents. Allegedly, the community then assigned the non-Jewish residents to less desirable units in the rear of the property, which had fewer amenities and were less well maintained than the most desirable building at the front of the property. The government also alleged that incoming Jewish residents paid less rent than non-Jewish residents for comparable units [U.S. v. Triple H. Realty LLC, April 2009].

It is also unlawful to hold residents to different standards of conduct just because they are members of a particular religion. In the aftermath of the 9/11 attacks, for example, HUD warns that a housing community could be accused of religious discrimination if it acts improperly in response to complaints from neighbors about Muslim residents. While communities must be responsive to complaints from residents, HUD says that you should take action against residents only when based on legitimate property management concerns. As an example, HUD cites a neighbor's complaint about a Muslim resident's weekly meeting of Muslim men, whom the neighbor says appear to be “unfriendly” and might be “up to something.” If the visitors do not disturb other residents in their peaceful enjoyment of the premises, HUD says that the housing provider could face a discrimination complaint if it asks the resident to refrain from having Muslim guests without evidence of any violation of established community rules.

Rule #5: Aim for Inclusiveness in Holiday Celebrations

When it comes to the holidays—particularly those falling at the end of the year—communities often put up decorations, send greetings, or host festivities to promote good cheer among managers, employees, residents, and their guests. The law banning religious discrimination does not prohibit communities from celebrating the holidays, but fair housing advocates advise emphasizing the general festivity of the season, rather than referring to particular holidays or religions.

As communities become more culturally diverse, your residents may celebrate a wide variety of religious holidays. Others may not celebrate any religious holidays at all. Singling out particular religious holidays may give the appearance that your community has a preference for—or against—members of a particular religion.

It's true that HUD says that use of secularized terms or symbols such as Santa Claus, Easter Bunny, or St. Valentine's Day images, or phrases such as “Merry Christmas,” “Happy Easter,” or the like do not constitute a violation of the FHA. But fair housing experts say that a better practice is to use more inclusive terms and symbols, such as “Happy Holidays” or “Seasons Greetings” to avoid the appearance that your community favors one religious group over another. For the same reason, they advise using neutral messages, colors, and themes in holiday decorations in your leasing office or other areas of your community.

If, like many communities, you host a party or other special event during the holiday season, fair housing experts say that you should keep it neutral and invite all residents, regardless of their religious affiliation. Make sure residents know all are welcome, but avoid any impression that they must attend holiday events.

And if you send holiday greetings via cards, newsletters, or emails, be sure to send them to all your residents—not only those whom you know to be of a particular religious faith. If you send holiday cards only to the residents you believe are Christian, for example, you could be accused of discrimination based on religion by residents of other faiths.

COACH'S TIP: Some communities allow residents to use common rooms for family parties or similar functions. It doesn't violate fair housing law to allow residents to use the common room to celebrate religious or cultural holidays, as long as you give all residents equal access to use the common room for such purposes.

Rule #6: Promptly Address Complaints About Religious Harassment

If you receive a complaint from a resident about religious harassment by a neighbor, it's important to investigate and act swiftly to resolve the problem. Unless you take such complaints seriously, you could be accused of tolerating religious discrimination at your community. That could lead to a violating fair housing complaint and, depending on the circumstances, liability for damages if a court finds that you knew about the neighbor's religious harassment but did nothing to stop it.

Example: In 2004, the San Francisco Housing Authority settled a lawsuit alleging that it tolerated religious, racial, and ethnic harassment against public housing residents of Iraqi descent and Muslim faith following the 9/11 terrorist attacks. The complaint alleged that the housing authority had knowledge of the harassment, but failed to take reasonable steps to protect the residents as required by law. The settlement required the housing authority to pay $200,000 to compensate the victims of discrimination and to modify its policies to ensure prompt action in response to complaints [U.S. v. San Francisco Housing Authority, January 2004].

Rule #7: Get Legal Advice Before Acting on Your Own Religious Beliefs

Fair housing experts warn against discriminating against anyone due to their religion or your own.

Even if you have strong religious objections to renting to certain applicants, such as unmarried couples, you could be accused of a fair housing violation under federal, state, or local law. For example, many state and local laws ban discrimination based on marital status. Court rulings have been mixed on whether those laws require owners to rent to unmarried couples when doing so violates their religious beliefs.

You should also consult your lawyer if you have religious qualms about renting to certain applicants based on their sexual orientation. In many parts of the country, state and local laws ban discrimination based on sexual orientation and gender identity. And although the FHA does not currently cover sexual orientation, it may be on the horizon at the national level. In October 2009, the Obama administration announced plans to propose a rule banning discrimination against lesbian, gay, bisexual, or transgender (LGBT) individuals in public housing. In addition, the administration said it plans to commission the first-ever national study of discrimination against LGBT individuals in the rental and sale of housing.

Fair Housing Act: 42 USC §3601 et seq.

COACH Sources

F. Willis Caruso, Esq.: Executive Director, The John Marshall Law School Fair Housing Legal Clinic, 28 E. Jackson Blvd., Ste. 500, Chicago, IL 60604; (312) 786-2267; 6Caruso@jmls.edu.

Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.