How to Comply with Fair Housing Law While Dealing with COVID-19
In this month’s lesson, we’ll look at how to avoid fair housing trouble while dealing with the COVID-19 pandemic. For months now, the nation has been confronting the public health emergency caused by the new coronavirus. By April, all 50 states had reported cases of COVID-19 to the U.S. Centers for Disease Control (CDC), though different parts of the country experienced different levels of COVID-19 activity. According to the CDC, U.S. COVID-19 cases include:
- People who were infected while traveling, before returning to the United States;
- People who were infected after having close contact with someone known to be infected with the virus; and
- People who were infected but don’t know how or where they were infected.
The CDC has warned against stigmatizing people or groups because of COVID-19. Health officials noted that people in the United States may be worried or anxious about friends and relatives who are living in or visiting areas where COVID-19 is spreading. Some people are worried about getting the disease from these people. Fear and anxiety can lead to social stigma, for example, toward people who live in certain parts of the world, people who have traveled internationally, people who were in quarantine, or healthcare professionals.
Stigma is discrimination against an identifiable group of people, a place, or a nation, according to the CDC. Stigma is associated with a lack of knowledge about how COVID-19 spreads, a need to blame someone, fears about disease and death, and gossip that spreads rumors and myths.
But, as the CDC points out, stigma hurts everyone by creating more fear or anger toward ordinary people instead of focusing on the disease that’s causing the problem. And in multifamily housing communities, stigma against particular people or groups because of COVID-19 could also lead to fair housing trouble.
In this lesson, we’ll review the law and offer six rules to follow to help you avoid fair housing trouble at your community while dealing with COVID-19.
COACH’s Tip: The news regarding COVID-19 has been rapidly evolving, so it’s important to stay up to date on the latest developments. For the health information related to virus, visit the CDC’s website at https://www.cdc.gov/coronavirus/2019-ncov/index.html. And check your state, county, or municipal government websites to find out what’s happening in your area.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability—also known as “protected classes.”
In general, fair housing law targets housing practices that exclude or otherwise discriminate against anyone because of their race or other protected class. Owners, managers, and individual employees all may be held liable for discriminatory housing practices, including:
- Refusing to rent or making 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;
- Discouraging prospects from renting a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable with existing residents;
- Assigning residents to a particular section of a community or floor of a building;
- Providing different housing services or facilities, such as access to community facilities; and
- Failing or delaying maintenance or repairs.
In addition, the FHA makes it unlawful to advertise or make any statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. The law also prohibits retaliation by making it unlawful to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assisting others who exercise that right.
Deep Dive: Disability
General Rules: Technically, the FHA bans discrimination based on “handicap,” though the term “disability” now is more commonly used. Under the FHA, disability generally means a physical or mental impairment that substantially limits one or more major life activity. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.
The law protects not only individuals who have a disability, but also individuals with a record of such disability (such as medical history of such an impairment), or those who are regarded as having such a disability (such as someone who is believed to have a mental illness, but in fact does not have such an impairment).
Despite the general rule banning discrimination against individuals with disabilities, the law recognizes an exception that allows communities to exclude an individual whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation. But it’s a limited exception—federal guidelines warn against a blanket policy that excludes anyone based upon fear, speculation, or stereotypes about disabilities. Instead, the law requires an individualized assessment of the particular applicant or resident based on reliable objective evidence of current conduct or a recent history of overt acts.
Special Rules: In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant requests for reasonable accommodations or modifications if necessary to allow individuals with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.
6 RULES FOR COMPLYING WITH FAIR HOUSING LAW
WHILE DEALING WITH COVID-19
Rule #1: Remember Fair Housing Requirements While Responding to COVID-19
Fair housing law may not be the first thing you think of when it comes dealing with the coronavirus crisis, but it’s important to remember that the law bans discrimination on the basis of race and national origin, disability, and other protected characteristics, even if motivated by concerns about COVID-19. It’s certainly on the minds of federal and state fair housing enforcement agencies and advocates.
“As the global response to the COVID-19 pandemic continues, the Justice Department will remain vigilant in enforcing civil rights laws,” Assistant Attorney General for Civil Rights Eric S. Dreiband said in a statement. “We must ensure that fear and prejudice do not limit access to housing, schools, benefits, services, jobs, and information, among other things, on account of race, sex, religion, national origin, disability, or other protected classes.
“It is important that we all work together to address unlawful discrimination, including violent acts or threats based upon protected classes. As in all emergencies, the COVID-19 outbreak has affected people of many different races, religions, and ethnicities, as well as those with disabilities. Unlawful discrimination may also discourage people from coming forward to seek treatment or information. Laws prohibiting unlawful discriminatory behavior must and will be vigorously enforced,” he said.
HUD Secretary Ben Carson echoed those sentiments in HUD’s Statement on Fair Housing and COVID-19:
We all must be vigilant to take protective measures recommended by public health officials to prevent the spread of COVID-19, knowing that many individuals with COVID-19 show no symptoms and have no awareness of exposure to the virus. Regardless of specific laws, now is not the time to evict people from their homes. If a housing provider is concerned that a person has COVID-19 and may pose a threat to the health or safety of others, the housing provider should set aside fear and speculation, and rely on objective medical information and advice from public health officials to determine steps that could mitigate or prevent the risk of transmission.
Likewise, officials in New York State explain that state law bans discrimination against anyone because of a perceived connection between his race, national origin, or disability, and COVID-19. The law prohibits discrimination against anyone assumed to have been exposed to COVID-19 based on any of these traits.
Fast Fact About Face Masks: If an applicant or resident is wearing a face mask as a precaution, he’s still protected against discrimination, warn officials in New York State. The law prohibits discrimination based on a perceived connection between race, national origin, or disability and possible exposure to coronavirus—wearing a face mask doesn’t change this.
Rule #2: Comply with Laws Banning Discrimination and Harassment Against Racial and Ethnic Minorities
Fair housing law bans discrimination based on race and national origin, so it’s unlawful to exclude or otherwise discriminate against racial or ethnic minorities, even if motivated by concerns about COVID-19.
“As the CDC has said, viruses do not target specific racial or ethnic groups,” HUD Chief Ben Carson said in a statement. “Be aware that the Fair Housing Act and other federal laws prohibit the eviction, turning away or harassment of a person in housing because they are profiled, on the basis of race, national origin or other protected class, to be associated with COVID-19. The Fair Housing Act also prohibits retaliation and intimidation against persons who report acts of discrimination they have witnessed to law enforcement authorities, like HUD, or who aid someone who has been the victim of discrimination.”
Of particular concern during the COVID-19 outbreak are increasing reports of discrimination and harassment against Asian Americans. In the first four weeks following its official launch in mid-March, the STOP AAPI HATE reporting center said that it had received nearly 1,500 reports of coronavirus discrimination from Asian Americans across the country. More than half originated in California and New York—the states hardest hit by COVID-19 at the time. Civil rights violations involving workplace discrimination and being barred from businesses and transportation or refused service made up almost 10 percent of incident reports.
In New York City, officials announced the formation of a COVID-19 Response Team to handle reports of harassment and discrimination related to the outbreak. By mid-April, the New York City Commission on Human Rights recorded 248 reports of harassment and discrimination related to COVID-19, over 40 percent of which identify incidents of anti-Asian harassment or discrimination. By comparison, during this same time period in 2019, the commission received just five reports of anti-Asian discrimination.
The COVID-19 Response Team has taken action in 148 cases, including conducting early or emergency intervention, providing information on how to request a reasonable accommodation, referring the individual to another service or agency, or commencing an investigation. The 18 matters currently under active investigation span discrimination in housing, public accommodations, and employment on the basis of race, national origin, disability, and lawful source of income. Additionally, the Response Team has successfully resolved nine matters of COVID-19-related harassment and discrimination.
“In this time of unparalleled crisis, the NYC Commission on Human Rights is dedicated to responding to and investigating reports of bias, harassment and discrimination related to the COVID-19 outbreak in our city,” Chair and Commissioner of the NYC Commission on Human Rights, Carmelyn P. Malalis, said in a statement. Even in the midst of a pandemic, human rights cannot be violated, and we encourage anyone who has experienced COVID-19- related discrimination to report it to us.”
Fast Fact About Retaliation: Fair housing law also bans retaliating against anyone for complaining about discrimination or bias-based harassment, or otherwise exercising her rights under fair housing law. For example, a housing provider can’t evict someone for reporting housing discrimination to a state enforcement agency, explain New Jersey officials.
Rule #3: Don’t Let Fear of Virus to Lead to Disability Discrimination Claims
It’s important to keep fair housing disability rules in mind when dealing with COVID-19. The FHA bans discrimination based on disability, so it’s unlawful to deny housing to people—or to treat them less favorably than others—because of a disability.
As noted by Secretary Carson, “There is much still to learn about COVID-19. We know, however, that persons with disabilities, including those who are older and have underlying medical conditions, are vulnerable and at high risk for a severe, life-threatening response to the virus. HUD recognizes that these persons may face unique fair housing and civil rights issues in their housing and related services. Housing providers are required to make reasonable accommodations that may be necessary to deliver housing and services to persons with disabilities affecting major life activities.”
There are no clear-cut answers about whether individuals who contract COVID-19 qualify for the disability protections under fair housing law. In part, that’s because the nature of the virus itself: For example, the symptoms of the condition vary so widely: Some people have no symptoms at all, while others suffer life-threatening, often fatal, consequences. For another thing, there’s still much that isn’t known about the virus—for example, whether people who have recovered from the virus are no longer contagious, and whether and for how long, they may be immune from the virus.
Under fair housing law, the disability provisions protect anyone who has a physical or mental impairment that substantially limits one or more major life activities. For example, the law would protect people with disabilities from discrimination, even if you believe that they have a higher risk of serious consequences from the coronavirus.
The law is also likely to cover anyone with serious symptoms of the virus, but it’s debatable whether it would cover someone with only mild or no symptoms of the virus. On one hand, even people with mild or no symptoms must self-quarantine to avoid any activities that could spread the virus to others, including work, a major life activity. On the other hand, the self-quarantine period is usually only a few weeks—and the disability provisions generally don’t cover temporary conditions.
Even in people with few, if any, symptoms of the virus, it’s important to remember that fair housing law protects not only individuals who have a disability, but also those who are regarded as having a disability—that is, anyone who is mistakenly believed to have a disability. Consequently, you could face a discrimination complaint if you take adverse action against someone because you believe they have the virus—whether or not they actually do.
Q: Can or should I disclose the identity of residents who test positive for the virus to other residents?
A: In general, fair housing law requires that disability-related information be kept confidential, so you should exercise caution concerning what you tell your residents about anyone diagnosed with COVID-19.
The first step is to find out about recommendations of state and local authorities, if any, with respect to your obligation to disclose active COVID cases to the residents at your community. Absent applicable requirements, fair housing expert Doug Chasick says it’s fine to send a general notice to advise residents that there are active COVID cases at the community, but not to disclose the names or unit numbers of people with the virus. Disclosure may not only violate the resident’s privacy, but also trigger discrimination or harassment of the resident by others living at the community.
Rule #4: Carefully Consider Reasonable Accommodation Requests
In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant reasonable accommodations if necessary to allow individuals with disabilities to fully enjoy their dwellings.
Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. By definition, reasonable accommodations are exceptions to your general policies or practices. For example, fair housing attorney Terry Kitay says that if someone wants to break a lease early because she has COVID-19, and needs to be hospitalized for treatment, then a request for early lease termination would be an accommodation to a disability.
Only individuals who qualify under the FHA’s definition of disability are entitled to reasonable accommodations. For example, someone who isn’t sick, but has lost employment because of stay-at-home policies, isn’t entitled to a payment plan as a reasonable accommodation under the Fair Housing Act, explains Kitay. Instead, this would be a customer service you’re providing for residents because of the pandemic.
In other cases, you could get a reasonable accommodation request for an exception to policies adopted to minimize residents’ exposure to the virus. For example, many communities closed amenities, such as fitness centers and pools, and other areas to slow the spread of the virus, but you could get a request by a resident with a disability, who usually uses the treadmill as part of his therapy, for an exception to the policy as a reasonable accommodation so he could use it.
Even though his request is related to a disability, fair housing law doesn’t require you to grant a request for a disability-related accommodation if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. In this case, Kitay says that his request to use the fitness center would probably be considered unreasonable—it would not only pose a direct threat of spreading the virus, but also impose an additional financial and administrative burden on the community to clean and sanitize the facility and the equipment after each use.
Rule #5: Comply with Laws Banning Discrimination, Harassment Based on Sex
Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex. Though most sexual harassment claims are filed by women, the law is broad enough to protect both men and women from sexual harassment, regardless of whether the perpetrator is a man or a woman.
Since the COVID crisis began, there have been increasing reports of landlords pressuring women unable to pay rent due to lost income from the COVID crisis into “arrangements” and sexual conduct, according to Khara Jabola-Carolus, Executive Director of the Hawaii State Commission on the Status of Women. Though the law temporarily protects renters from evictions, there’s no official policy for rent forgiveness. About one-third of Americans were unable to pay their rent on April 1—and male landlords were taking advantage of the intensifying financial pressure, she said.
In response to reports of sexual harassment during the pandemic, Attorney General William Barr directed federal prosecutors throughout the nation to deploy all available enforcement tools against anyone who tries to capitalize on the current crisis by sexually harassing people in need of housing.
“As the country adopted drastic measures to slow the spread of COVID-19, many Americans have lost their jobs and many more have seen their wages curtailed,” Barr said. “These losses have forced many to seek abatements or suspensions of their rent, with reports that nearly one-third of Americans were unable to pay their April rent at the beginning of the month.”
Though many landlords responded by trying to work with their tenants to weather the current crisis, Barr said that others have responded to requests to defer rent payment with demands for sexual favors and other acts of unwelcome sexual conduct. “Such behavior is despicable and it is illegal,” he said. “This behavior is not tolerated in normal times, and certainly won’t be tolerated now.”
In a statement, HUD Secretary Ben Carson praised the Attorney General for devoting all “necessary resource” to aid HUD investigations into reports of landlords demanding sexual favors in exchange for rent.
“The Fair Housing Act embodies the spirit of this great Nation where everyone is entitled to equal opportunity and respect,” Carson said. “No one should have to endure sexual harassment and degrading treatment, especially to keep a roof over their heads. I’m pleased Attorney General Barr has partnered with HUD to fully investigate and prevent sexual harassment in housing particularly during this difficult time in our country.”
Senate Urged to Provide Housing Support for Domestic Violence Survivors
During Coronavirus Pandemic
In April, U.S. Senators Jeanne Shaheen (D-NH) and Maggie Hassan (D-NH) joined a group of 20 senators in sending a letter to Senate leaders, asking that future legislation to address the coronavirus pandemic also include resources to meet domestic and sexual violence survivors’ urgent housing needs, which have been exacerbated by stay-at-home orders, social distancing, and the ongoing economic upheaval caused by COVID-19.
In addition, the entire New Hampshire congressional delegation urged courts and state officials in New Hampshire to issue guidance prohibiting the release of offenders convicted of domestic violence and sex offenses. Due to the COVID-19 outbreak, New Hampshire correctional facilities have released inmates in an effort to stop the spread of the disease. The delegation’s statement comes as concerns were raised with the release of an inmate who was a violent offender.
Rule #6: Treat Applicants and Residents Consistently
Don’t treat people differently based on whether they have—or you believe they have—been exposed to COVID-19. Absent a positive COVID test, it can be difficult, if not impossible, to tell whether someone has the virus, because so many people have few, if any, symptoms of the virus.
It’s discriminatory to assume that someone has been exposed to the virus, simply based on where they—or their ancestors—were born. For example, enforcement officials in New Jersey explain that owners or managers can’t refuse to make necessary repairs to a unit because the resident is Asian and they’re afraid of contracting COVID-19. Nor can an owner or manager refuse to rent a property to someone based on these reasons. Fair housing law doesn’t prohibit a landlord from taking reasonable steps to protect himself or other residents from COVID-19, but such reasonable steps wouldn’t include actions premised on stereotypes based on race or national origin.
Consistency is key to fair housing compliance, says fair housing expert Doug Chasick. During the COVID crisis, for example, many communities have suspended regular maintenance operations, responding only to emergencies, to avoid the risk of exposure between residents and staff. When responding to emergency repair requests, it’s important for maintenance staff to respond to requests using the same safety practices to avoid potential discrimination claims.
Kitay agrees. When dealing applicants and residents, she says it’s a good idea to assume that everyone is positive, so you go into every situation with the same protocol.
Fair Housing Compliance Basics
- Suspend Judgment
- Think: Equal, Not Fair
- Be Consistent, which doesn’t mean “treat everyone the same”
- Manage Expectations
- Be Transparent – Communicate the “Why”
- Appreciate that Perception Is Reality
Source: Doug Chasick, The Apartment Doctor
Douglas D. Chasick, CPM, CAPS, CAS, ADV. RAM, CLP, SLE, CDEI: The Apartment Doctor; Merritt Island, FL; firstname.lastname@example.org.
Theresa L. Kitay, Attorney at Law: Oak Island, NC; Tkitay@kitaylaw.net.