How to Avoid Discriminating Against People with Limited English Proficiency

More than 25 million people in the U.S. have limited ability to speak, understand, write, and read the English language. That’s about 9 percent of the national population. Sadly, people in this “limited English proficiency” (LEP) group frequently get doors slammed in their faces. Such unfavorable treatment can and does occur in the rental housing context. Sometimes it’s deliberate; sometimes it’s the inadvertent and unforeseen effect of policies and practices favoring English speakers and restricting the use of other languages.

The question: Do federal fair housing laws protect LEP persons against this kind of treatment?

The answer: Yes, they do.

Accordingly, we’re dedicating this month’s lesson to LEP discrimination. First, we’ll explain the current laws banning LEP discrimination and the different ways such discrimination can occur. Then we’ll set out nine rules to follow to help you and your rental staff avoid LEP discrimination. We’ll finish up the lesson with the Coach’s Quiz so you can see how much you’ve learned.

DEEP DIVE

The Languages of America

Among LEP persons in the United States, approximately:

• 16.4 million speak Spanish (65%)
• 1.7 million speak Chinese (7%)
• 850,000 speak Vietnamese (3%)
• 620,000 speak Korean (2%)
• 530,000 speak Tagalog (2%)
• 410,000 speak Russian (2%)

WHAT DOES THE LAW SAY?

LEP isn’t on the list of characteristics that the federal Fair Housing Act (FHA) protects from discrimination. However, three of those characteristics can come into play when landlords discriminate against people because of their limited proficiency in English: religion, race, and especially national origin. Discrimination on the basis of national origin occurs when people get treated less favorably because of the geographic area from which they or their ancestors come. This may include a country (for example, China), a region within a country (for example, Wuhan, the city believed to be the origin of the COVID-19 virus), or a region spanning several countries (such as Asia). The link between national origin and LEP is not only fairly intuitive but also supported by census data. Thus, in the U.S.:

• 34 percent of Asians and 32 percent of Hispanics are LEP, as compared with 6 percent of whites and 2 percent of non-Hispanic whites;
• 61 percent of persons born in Latin America and 46 percent of persons born in Asia are LEP, as compared with 2 percent of persons born in the U.S.; and
• Over 63 percent of noncitizens are LEP, compared with 39 percent of naturalized citizens and 1 percent of native-born citizens.

The bottom line: The line between discrimination based on national origin and discrimination based on LEP is so thin as to be almost invisible. Many a landlord has learned this lesson the hard way.

Example: In 2013, HUD ordered a Virginia property management company to pay $82,500 to settle allegations of not letting a Hispanic woman apply for an apartment. According to the complaint, the company refused to give her a rental application because she didn’t speak fluent English even though she brought along a bilingual person to act as a translator. HUD investigators also found that the company actually had a written policy requiring all prospects to be able to communicate with management in English without help from others [Travsiňa v. Virginia Realty Company of Tidewater, Inc., FHEO Case Numbers 03-11-0424-8].

The 2 Basic Forms of LEP Discrimination

In September 2016, the U.S. Department of Housing and Urban Development (HUD) confirmed what we basically already knew from the court cases: LEP discrimination violates the FHA. The HUD guidance, “Office of General Counsel Guidance on Fair Housing Act Protections for Persons with Limited English Proficiency,” explains the interplay between the two forms of discrimination. Specifically, it outlines the two basic ways discriminating against LEP people violates the FHA ban on national origin and, in some cases, racial or religious discrimination.

1. Intentional discrimination. The most direct form of discrimination is excluding people because they’re LEP. The HUD guidance says that any time housing providers impose language rules or restrictions, it should raise a bright red flag inviting close scrutiny. The guidance lists different forms of intentional LEP discrimination, including:

• “Proxy” discrimination—that is, relying on language-based restrictions as a pretext for national origin and other forms of banned discrimination, such as by not renting to people unless English is their primary language;
• Selective enforcement of language-based restrictions, such as applying the restrictions only to LEP applicants who are Hispanic or Asian. “Because a person’s primary language generally derives from his or her national origin, singling out persons for disparate treatment because they speak a certain language is typically national origin discrimination,” the HUD guidance notes;
• Targeting individuals for unfair or illegal housing-related services because they’re LEP or speak a particular language, such as by imposing an administrative fee for processing applications completed by applicants in a language other than English; and
• Failing to provide language assistance services to LEP people required under a contract or federal or state assistance programs (see the discussion on Title VI below).   

2. Disparate impact discrimination. As with other bases of discrimination, rental policies and practices that appear neutral on their face may be illegal if they have the effect of discriminating against LEP people. This is true even if there was no intent to discriminate and the discriminatory effects are totally unintentional. Thus, for example, while the intent of an “English-only” policy for rental applications and leases may be to simplify and reduce the costs of administration, it may also have the effect of excluding LEP applicants and renters. In an actual case, HUD or a court would use a three-part test to determine whether a policy or procedure targeting LEP persons crosses the line:

1. Policy must have disparate impact: First, the “plaintiff,” or person bringing the LEP discrimination complaint, must prove that the policy has a “disparate impact” on a group because of its national origin, race, or other protected characteristic. Evidence that can be used includes census data as well as actual experience, such as the fact that the percentage of Hispanic people signing new leases at the community dropped X percent or Hispanic tenants evicted increased X percent since the landlord adopted the LEP-related policy.

2. Policy must achieve substantial, legitimate, nondiscriminatory interest: When and if the plaintiff proves disparate impact, the burden shifts to the landlord to show that the policy serves a substantial, legitimate, and nondiscriminatory interest. This is basically the same standard that employers use to justify otherwise discriminatory employment policies as a bona fide occupational requirement, such as excluding non-English speakers from consideration for certain receptionist or other customer-facing positions. However, justifying policies requiring English proficiency is much harder in the housing context. That’s because landlords don’t have the same kind of close, continuing relationship and communication with their rental applicants and tenants as employers do with their job applicants and employees.

3. There must be no less discriminatory alternatives: Proving substantial purpose doesn’t get the landlord out of the woods. The plaintiff can still defeat the policy by showing that the landlord could have achieved the purpose in a less discriminatory way. Thus, for example, maybe instead of instantly disqualifying applicants who can’t speak English, the landlord could provide or allow the applicant to bring a translator.  

Stricter Rules Apply to HUD-Assisted Housing

Avoiding the LEP discrimination patterns that HUD outlines in its 2016 guidance is only the tip of the compliance iceberg if you participate in federal housing assistance programs. Explanation: The HUD guidelines deal only with liability under the FHA—that is, Title VIII of the Civil Rights Act of 1964. Housing providers who participate in HUD and other federal programs are also subject to Title VI, which requires recipients of federal financial assistance to not only refrain from LEP discrimination but also take “reasonable steps” to ensure LEP persons have “meaningful access” to their programs and activities.” Executive Order 13166, the HUD Handbook, and other HUD guidance explain the things providers must do to ensure meaningful access, starting with the creation of a Language Assistance Plan based on an individualized assessment of four factors:

• The number or proportion of LEP persons eligible to be served or likely to be encountered by the site;
• The frequency with which LEP individuals come in contact with the program;
• The nature and importance of the program, activity, or service provided by the program to people’s lives; and
• The resources available to the recipient and costs.

While the Title VI meaningful access requirements don’t apply to landlords that don’t receive federal housing assistance, they do represent a best practices model that can help ensure compliance with Title VIII rules and embrace commitment to lingual diversity.

FOLLOW 9 RULES FOR AVOIDING LEP DISCRIMINATION

Now that you know why LEP discrimination is illegal and how it can happen, the next step is to train your leasing and management staff how to avoid committing it. Here are nine rules to cover in your training.  

Rule #1: Don’t Base Housing Decisions on a Person’s Language

Never refuse to show an apartment, reject an applicant, or otherwise treat people differently and unfavorably just because they have trouble speaking, understanding, reading, or writing English. If you do, you’ll be setting yourself up for liability for intentional discrimination.

The first and most obvious way to get into trouble is by refusing to rent to persons based on their primary language. This rule works in both directions. Thus, denying people housing because English (or some other language) is their primary language is just as illegal as denying them housing because English (or that other language) is not their primary language.

Example: In November 2009, a California community agreed to pay a record $2.725 million to settle allegations of discrimination against non-Korean-speaking residents and prospects in the Koreatown area of Los Angeles. Among other things, the complaint alleged that the community refused to rent to non-Korean prospects, misrepresented the availability of units to non-Korean prospects, and provided inferior treatment to non-Korean residents in those buildings [United States v. Sterling, November 2009].

Other intentional discriminatory practices to avoid include:

• Applying an English-speaking language-related requirement to people of certain races or nationalities;
• Posting advertisements that contain blanket statements, such as “all tenants must speak English”; and
• Immediately turning away applicants because they’re not fluent in English.

Rule #2: Avoid Impatience, Frustration, and Exasperation

Dealing with persons who have trouble with the English language can be challenging for leasing agents, managers, and other rental staffers. Having hired and trained them, you may feel comfortable that your people aren’t racists or bigots. The problem is that they don’t have to be to commit LEP discrimination.

It’s imperative to ensure that staffers remain calm, patient, poised, and professional at all times when dealing with LEP people. Giving in to frustration, even if it’s just a momentary and isolated lapse, may result in comments and actions that serve as Exhibit A in an intentional discrimination case against you.

Example: In 2017, the owner and manager of a California community had to shell out $20,000 to settle claims of national origin discrimination against Latino tenants. The turning point came when a local fair housing group joined the case bringing along evidence showing that the manager repeatedly made statements about not liking having Latino tenants at the community because they didn’t speak English [HUD Case Numbers 09-16-5009-8 and 09-16-5459-8].

Rule #3: Beware of ‘Linguistic Profiling’

Another weak spot that can cause otherwise good and well-intentioned staffers to do and say things that constitute LEP discrimination is linguistic profiling, the practice of treating people differently because of the way they speak or sound on the phone. Scientific research shows that most people can determine race by hearing a caller’s voice. The risk is that leasing agents may, whether intentionally or subconsciously, give inaccurate information about availability, display rudeness, fail to return calls, or engage in other forms of unfavorable treatment when fielding calls from LEP prospects.

Example: In 2015, a real estate agent in Jackson, Miss., paid $46,000 to settle charges of providing different information to white and Black callers seeking to purchase homes. The fair housing agency that brought the suit did extensive testing documenting that agents steered white and Black callers to different neighborhoods based on the sounds of their voice [National Fair Housing Alliance v. Lorgroup, LLC, DBA RE/MAX Alliance].

Leasing agents need to know about and be careful not to engage in linguistic profiling when dealing with LEP individuals, including persons with heavy accents. The same goes for what’s known as “email profiling”—that is, treating people differently because their name suggests that they (or their ancestors) are of a particular racial, religious, or ethnic group.

Rule #4: Beware of Steering

Another significant discrimination pitfall in the LEP context is steering, or seeking to influence rental prospects’ housing choices on the basis of their English language skills. As with linguistic profiling, steering can be deliberate or inadvertent and unconscious. Practices to warn your leasing staff against include:  

• Not allowing LEP people to rent in certain buildings or floors because of their LEP;
• Telling LEP prospects where they’d “fit in” or be “comfortable” renting, such as on floors with other LEP tenants; and
• Answering discriminatory questions or granting discriminatory requests of prospects asking about LEP people, such as a person who expresses disdain for people who don’t speak English and asks “how many of your tenants can speak English” or requests that you “put me on a floor where everybody speaks English.”  

Rule #5: Avoid English-Only and Other Language-Based Policies

The Title VIII fair housing laws don’t require that rent applications, leases, and other essential documents be bi- or multilingual (although the Title VI rules might); however, they don’t allow for English-only policies and other language restrictions simply because they make business and lease administration easier and less expensive. Even if that is the intention, such policies may be perceived as a pretext for national origin or racial discrimination.

In some cases, the 2016 HUD guidance explains, LEP persons may speak English well enough to conduct essential housing-related matters or have a household member who can provide assistance as needed. Accordingly, a blanket refusal to deal with LEP persons is probably not motivated by genuine communication concerns and won’t fly.

Example: A family sued the owner of a Minnesota townhouse for refusing to rent to them because they were of Hmong descent. They claimed the owner made remarks citing the mother’s limited English skills and suggesting that she could easily break the lease unless it was translated to her native language, which was very costly. When a federal court refused to dismiss the national origin complaint, the owner knew the gig was up and paid $5,000 to settle the case [U.S. v. Edmunds, January 2017].

As we noted above, English-only and other restrictive language policies would be justified only when the landlord can demonstrate that the purpose they achieve is not only legitimate and nondiscriminatory but also “substantial.” According to the guidance, cost-based justifications of language restrictions and policies are “immediately suspect,” especially where free or low-cost language assistance or translation services are available.

Rule #6: Consider Less Discriminatory Alternatives

Keep in mind that even if it clears the considerable substantial-legitimate-nondiscriminatory-purpose hurdle, a restrictive language policy is justified only to the extent that there are no less discriminatory alternatives available.

Bottom line: If you find yourself in the position of having to defend an English-only or other restrictive policy, you better be prepared to explain the alternatives you considered, such as translations, use of translators, giving LEP applicants extra time to study the documents, etc., and exactly why you rejected them.

Rule #7: Apply Screening Criteria Consistently

As with any other fair housing complaint, the key to avoiding LEP discrimination is to apply your screening policies uniformly regardless of applicants’ English language skills, accent, country of origin, appearance, or other characteristic related to their national origin. One thing you can’t do is make LEP applicants answer additional questions or undergo special screening, such as verification of their U.S. citizenship or legal residency status, that you don’t ask of applicants who speak perfect, unaccented English. Nor can you look more closely at whatever documentation you do require simply because the applicant is LEP, such as asking prospects if they illegally purchased their Social Security card because they speak with a Hispanic accent.

Coach’s Tip: Although the FHA doesn’t ban discrimination based on citizenship, other federal civil rights laws may ban discrimination based on citizenship. So, it’s important to check state and local laws. For example, California law expressly bans housing providers from asking about an applicant’s citizenship or immigration status. In addition, some state and local laws ban discrimination based on immigration status or “alienage.”

Rule #8: Promote Cultural Sensitivity

Perhaps the most important and overarching rule in this bundle is the need to incorporate cultural sensitivity into your staff training. Emphasize the importance of professionalism, avoidance of stereotypes, sensitivity, and respect for the ethnic, cultural, and religious differences among the rental prospects, applicants, and tenants that staffers encounter on the job. Explain that diversity and inclusion go beyond mere tolerance and avoiding overt discrimination. It’s about understanding what makes people different and how these differences may color the way they act and speak, as well as how they perceive the way you act and speak to them.

Identify and make staff aware of any customs or cultural norms that they need to respect in going about their jobs. Thus, for example, make maintenance personnel aware of the need to remove one’s shoes before entering a tenant’s apartment if your tenant mix includes persons from cultures that follow this protocol. If removing shoes isn’t safe or practicable, instruct staffers to seek other solutions such as wearing booties over their shoes or even apologizing for not being able to remove them. The important thing is sensitizing maintenance personnel so they don’t offend tenants when entering their units.  

Rule #9: Don’t Ask or Comment About a LEP Person’s Ethnicity

Part of cultural sensitivity is refraining from asking or making comments to LEP people about their accents or where they come from. Keep in mind that the people to whom you direct these questions may be testers sent to your community to monitor your FHA compliance. And while staffers may think they’re just engaging in friendly or casual conversation, seeking information about a person’s race, religion, national origin, etc., during the rental process is a form of discrimination. As a result, the questions and comments a leasing agent makes about a rental applicant’s ethnicity or origins put the person in a position to claim discrimination, especially if you end up rejecting his or her application.

Example: One housing provider who learned this lesson the hard way is the Massachusetts real estate broker who noticed the Latino accent of the wife of the couple he was meeting with. Having married a Brazilian woman himself, the broker felt a wave of friendly curiosity and asked the wife where she was from. Venezuela, she replied. And that was the end of it. Or so the broker thought.

Only later when the lawsuit was filed would he learn that instead of representing friendly chit-chat, his question touched a nerve triggering extreme emotional distress. He had no idea that the woman had recently been denied a rental opportunity because of her national origin. So, when the broker asked where she was from, her immediate reaction was “oh no, it’s happening again!”

The couple filed a complaint with the Boston Fair Housing Commission, which ordered the broker to pay more than $61,500 in damages, penalties, and attorney’s fees.

The appeal court affirmed that the broker committed discrimination. The broker had no intent to discriminate and the couple didn’t suffer any discrimination in seeking the rental, the court acknowledged. However, the question itself violated the FHA, it said. The only good news for the broker is that the court reduced the damages award [Linder v. Boston Fair Housing Commission, 467 Mass. 1105 (2014)].

Out-of-line questions and comments may also occur during a LEP person’s tenancy. For example, warn maintenance staff not to ask questions or make comments about art, artifacts, and religious items they see when they’re inside a LEP tenant’s unit. Another potential hot spot is the pool area, especially if you limit use to those who wear proper “swim wear.” For some cultures and religions, proper swim wear constitutes not western style bathing suits but long garments that are far less revealing. This is something your staff should recognize and be prepared to accommodate, provided that allowing for such garments poses no real threat to health, safety, or pool filtration systems.

Last but certainly not least, warn staffers not to demand that tenants speak English when they’re in hallways, elevators, pools, or other common areas.