How to Ensure Fair Housing Compliance When Dealing with Recent Immigrants
This month, we’re going to review how to ensure compliance with fair housing law when dealing with recent immigrants. It’s a hot button issue in light of the national debate over immigration reform.
If anything, the battle over immigration reform has only intensified since Fair Housing Coach last reported on the topic in January 2008. Federal lawmakers have yet to agree to a comprehensive solution, prompting state and local governments across the country to enact their own measures to combat the illegal immigration. All have been met with litigation, leading the courts—all the way up to the U.S. Supreme Court—to issue rulings striking down the validity of those laws.
You may be wondering what all this has to do with rental housing. After all, federal fair housing law doesn’t list citizenship or immigration status among its protected characteristics. But the law does list national origin—as well as race, color, and religion—any and all of which may apply to immigrant populations, depending on their country of origin, and their ethnic, racial, and religious background. So it’s key to understand how to navigate through the uproar over immigration to ensure that your community fully complies with fair housing law when dealing with recent immigrants.
It’s particularly important now because HUD has recently stepped up efforts to emphasize fair housing protections for new immigrants. Last year, HUD initiated a national media campaign and a series of community discussions, including its first Immigrant Housing Conference, to better address housing discrimination based on national origin.
"The new Census data demonstrate that newcomers are settling not only in traditional gateway states. They reside in communities across the Midwest and South. Through this education campaign, HUD will work with communities to prevent housing discrimination and promote immigrant integration into the broader society,” HUD Assistant Secretary for Fair Housing and Equal Opportunity John Trasviña said in a statement.
HUD has backed up initiatives to protect people of foreign descent by awarding millions in grants to fair housing groups across the country. In announcing last year’s funding, HUD said that many of the organizations will use the grants to address discrimination against immigrants, Latinos, non-native English speakers, and minority communities. And in May 2012, HUD’s latest round of funding awarded millions in grants to fair housing organizations in a dozen states that focus on the rights and needs of underserved populations, including recent immigrants.
In this lesson, we’ll review how fair housing laws apply to immigrant groups—and offer four rules to help you avoid potential problems that could lead to discrimination claims. And, in our Legal Update, we’ll review the latest ruling by the U.S. Supreme Court in the battle over immigration reform. Although it didn’t address housing restrictions, the decision is likely to affect courts reviewing the dozens of other state and local immigration measures that do affect rental housing providers.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability.
The FHA’s national origin protections apply to discrimination based on a person’s ancestry, country of birth outside the United States, and the language he or she speaks, according to HUD. National origin discrimination often involves immigrants or non-English-speaking individuals, but it can also involve native-born U. S. citizens based on their family ancestry, the agency says.
Moreover, it’s common to see an overlap with federally protected characteristics, including race, color, religion, gender, disability, and family status, HUD says. For example, courts often treat claims of discrimination against Latinos based on both national origin and race. The same goes for those who were born in—or whose ancestors came from—countries in Asia, Africa, or the Middle East, who may also be entitled to protection based on religion.
Nevertheless, the FHA doesn’t ban discrimination based solely on a person’s citizenship status, according to a 2003 HUD memo, which said that “asking housing applicants to provide documentation of theircitizenship or immigration status during the screening process would not violate the Fair Housing Act.”
In fact, the HUD memo noted, such measures have been in place for years in screening applicants for certain federally assisted housing. For those properties, federal law requires housing providers to verify housing eligibility based on U.S. citizenship or lawful immigration status. HUD regulations define what kind of documents are considered acceptable evidence of citizenship or eligible immigration status and outline the process for collecting and verifying such documents. HUD says these procedures are applied uniformly to every applicant.
These federal rules don’t apply to most private rental housing that has no federal funding. HUD warned that other housing providers who are considering implementing similar procedures must ensure that those measures are carried out in a nondiscriminatory manner.
For example, HUD said that it’s unlawful discrimination based on national origin for a housing provider to ask for additional information from an applicant from the Middle East, but not from someone who comes from Europe. On the other hand, HUD stated that it was not unlawful for a community to check the immigration status of a student who comes from abroad to study in the United States—to ensure that his visa doesn’t expire during the tenancy—as long as the landlord requests this information regardless of the applicant’s race or specific national origin.
At present, it’s the same under state law, except in California, which bans inquiry into an applicant’s immigration status. New York City goes further by adding “alienage or citizenship status” among characteristics protected under its fair housing law. So, in California it would be discriminatory to ask for information about a rental applicant’s immigration status or right to be in the United States. In New York City, the rental owner could not ask for the applicant’s country of citizenship or whether he’s a U.S citizen.
Elsewhere, federal and state fair housing law permits conventional housing communities to choose whether—or not—to ask about an applicant’s citizenship status. However, given HUD’s new enforcement emphasis on preventing discrimination against Latinos and persons from other countries, a leasing policy of screening out immigrants—whether in the country legally or illegally—could leave your community vulnerable to a discrimination claim. Refusing to rent to non-U.S. citizens could also violate other federal civil rights laws.
In the years since HUD’s 2003 memo, HUD and fair housing advocates have increasingly raised concerns about the adverse effect (disparate and unfair impact) of such policies on protected groups—most notably, Latinos. The argument is that policies to screen out illegal immigrants—even if not the result of intentional discrimination—are unlawful under the FHA because they have a disparate impact or greater impact in denying housing to Latinos based on national origin and race.
That argument took hold in a recent court ruling to prevent a provision in Alabama’s immigration law from taking immediate effect. The court agreed with fair housing advocates, who argued that the provision, which effectively prevented illegal immigrants from living in mobile homes in the state, was unlawful under the FHA. Based on statistical evidence, the court found that the provision had a “severe and disproportionate effect on Alabama’s Latino population.” Combined with evidence of discriminatory intent and other factors, the court found enough evidence of an FHA violation based on disparate impact to put the provision on hold, pending further court proceedings [Central Alabama Fair Housing Center v. Magee, December 2011].
4 RULES FOR COMPLYING WITH FAIR HOUSING LAWS
WHEN DEALING WITH IMMIGRANT GROUPS
Rule #1: Treat People of All Nationalities with Consistency
Fair housing law bans discrimination based on national origin, which means that communities can’t do anything to suggest that they have any preference—for or against—anyone based on where they or their ancestors were born. This means the housing provider can’t single out certain nationalities to favor them over certain other nationalities, nor can the landlord deny them housing because of where they come from, according to Atlanta-based fair housing attorney Robin Hein.
In the wake of the 9/11 terrorist attacks, there were increased incidents of housing discrimination against people who were—or were perceived to be—Arabs, Muslims, or of Middle Eastern or South Asian descent, HUD notes. More recently, the controversy over illegal immigration has been accompanied by numerous reports of housing discrimination against Latinos—many of whom are U.S. citizens or lawfully present in the United States.
Meanwhile, the nation’s demographics are changing rapidly. In addition to the increase in the Latino population, the Asian population grew faster than any other race group in the United States between 2000 and 2010, according to the 2010 Census. Though it often goes unreported, advocates say that Asian immigrants and those of Asian descent frequently experience housing discrimination.
As the nation continues to struggle with terrorism, illegal immigration, and changing demographics, it’s natural to have strong opinions on these topics of national interest. But whatever your personal or political views, fair housing law requires consistent treatment of all prospects, applicants, and residents, regardless of where they—or their ancestors—were born.
Rule #2: Take Training to the Next Level
Training employees on fair housing basics is essential, but to best protect your community from discrimination claims, it may be necessary to take your training to the next level. Of course, the basics will explain the ban on steering and other discriminatory housing practices based on race, national origin, and other characteristics protected under federal, state, and local laws. These lessons will help prevent employees from engaging in obvious forms of housing discrimination.
But to fully protect your community, it’s important to make employees aware of subtle—even inadvertent—forms of discrimination. Take, for example, what has come to be known as “linguistic profiling”—treating people less favorably because of the way they speak, such as treating prospects rudely because they have an accent or difficulty speaking English. As fair housing expert Nadeen Green recently explained at the National Apartment Association’s 2012 Educational Conference & Exposition, linguistic profiling testing has revealed more subtle forms of discrimination—such as not responding to voicemail messages or failing to invite certain callers to visit your community if they’re interested in doing so.
Moreover, Green warned that fair housing organizations are increasingly turning to email testing, which is cheaper and easier than office visits and telephone calls. Email testing focuses on differences in treatment based on the sender’s email address, which may offer strong clues about a prospect’s race, name, or ethnic background. If your community gives short shrift—or worse, fails to respond—to emails from prospects with “foreign-sounding” names, it could be considered evidence of discrimination. And there can be an issue if you respond to some emails with positive information about your community (the lowest rents, the great amenities, and the like) and with negative information (such as the highest rents or your criminal background screening) to others. It may not be enough to justify a formal complaint against your community, but it could prompt further investigation.
Rule #3: Take a Close Look at Your Applicant Screening Policies
Applying your screening criteria consistently will help prevent fair housing claims, but it may be time for a closer look at the screening criteria themselves to avoid potential discrimination claims from immigrant groups.
Even though HUD’s 2003 guidance says the FHA doesn’t prohibit discrimination based solely on a person’s citizenship status, Hein strongly advises against adopting a policy to deny housing to applicants simply because they are not U.S. citizens—even if they apply to all applicants who are not U.S. citizens, regardless of their country of origin. He explains that there are many people who are permanent legal residents of the United States (those with “Green Cards”)—although they aren’t U.S. citizens, they have nearly all the same rights as U.S. citizens and may lawfully live and work in the United States. Although citizenship (the country in which someone has full rights as a citizen) is different from ancestry (the country where someone was born), the two concepts are related. Any leasing policy that expresses a preference for or against someone on the basis of either nationality or citizenship could lead to charges of unfair discrimination, Hein says.
Furthermore, denying housing to non-U.S. citizens could lead to liability under other federal civil rights laws. For example, a Colorado court dismissed a fair housing claim against a community for denying a rental application solely because the applicant was not a U.S. citizen, but allowed her claim to proceed under another federal law that did cover claims of citizenship discrimination [Martinez v. Partch, January 2008].
Taking it a step further, conventional housing communities may want to reconsider policies for screening applicants based on citizenship and lawful immigration status. Several clear legal trends have developed over the past four years in the area of illegal immigration, according to Hein. First, state and city governments have tried to enact and enforce their own laws limiting illegal or undocumented aliens from working and living in the United States. Second, the federal courts repeatedly have struck down or restricted the effect of those state and local regulations of immigration. Third, HUD and the Justice Department have increased their level of interest in preventing discrimination against Latinos and other nationalities (notwithstanding increased enforcement efforts of the U.S. Citizenship and Immigration Enforcement agency to stop and return those caught trying to enter the United States illegally). The current administration has increased efforts to provide and protect the rights (voting, education, and the right of long-term residents to remain without being deported) of those who may have entered the United States illegally—rights normally considered by the public as reserved only for U.S. citizens and legal immigrant residents.
Furthermore, there are practical problems with requiring proof of an applicant’s citizenship or immigration status, Hein warns. Setting up procedures for checking all applicants’ citizenship and immigration documents requires a high degree of consistency and training of the landlord and leasing staff that may be very difficult to implement. Among other things, it’s very difficult to determine or verify which immigration documents and other forms of identification (such as a driver’s license) are valid—and which are not.
Rule #4: Review Information Required to Process Applications
Some fair housing experts have raised concerns about requiring applicants to provide Social Security numbers (SSNs). It’s a controversial topic—and one on which lawyers disagree, Green notes.
On one hand, communities have a legitimate reason for requiring SSNs—that is, because many tenant screening companies require them to perform tenant screening, such as credit and criminal background checks. But fair housing advocates increasingly decry the practice, arguing that requiring SSNs is merely being used as an excuse to cover up intentional discrimination against immigrant populations.
Hein points out that there is no current federal or state law or regulation that prohibits rental owners from requiring applicants to provide an SSN in order to apply for a rental home. He observes that the vast majority of rental owners have leasing policies that ask for an SSN in order to process the rental application and run it through the credit bureau.
Green says the policy could be risky because SSNs are tied to national origin. After all, she points out, all U.S. citizens have SSNs, but many people from other countries, even if here lawfully, may not—international students, for example. If the community denies housing unless the applicant provides an SSN, it would have a disproportionately negative effect on people from other countries—potentially leading to a discrimination claim of disparate impact based on national origin.
San Diego-based attorney J. Kathleen Belville, of the Law Offices of Kimball, Tirey and St. John LLP, raises similar concerns. She suggests an alternative policy would be to ask for—but not require—SSNs for all applicants. If the applicant cannot provide such information, she says it would be wise to continue to process the application without it. Ask whether your current screening company can run the check without the SSN—if it can’t, you might want to find a screening company that can run credit and check eviction history using alternative information, such as the applicant’s name, date of birth, and last known address.
Green agrees, and offers yet another alternative to give the community some extra financial protection in the event of a default by applicants without SSNs. If permitted under state laws (including your landlord/tenant laws), you could adopt a policy requiring any applicant who doesn’t provide an SSN to pay a higher security deposit—say, twice the amount required of qualified applicants who do provide SSNs—or whatever is the maximum allowed under the law in your state. Or, Belville suggests, you might also require a cosigner and/or an initial month-to-month tenancy until the resident has established a rental history at your property.
• Fair Housing Act: 42 USC §3601 et seq.
J. Kathleen Belville, Esq.: Partner, Law Offices of Kimball, Tirey & St. John LLP, 7676 Hazard Center Dr., Ste. 900, San Diego, CA 92108; (619) 234-1690; Kathy.Belville@KTS-LAW.com.
Nadeen W. Green, Esq.: Senior counsel, For Rent Magazine, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; email@example.com.
Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood & Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.
LEGAL UPDATE: IMMIGRATION REFORM
The ongoing lack of comprehensive immigration reform by federal lawmakers has led many state and local governments to step into the breach by enacting their own measures to stem the tide of illegal immigration into their jurisdictions—principally from the nation’s southern borders.
States including Arizona, Alabama, Georgia, Indiana, South Carolina, and Utah have adopted sweeping legislation seeking to prevent illegal immigration. The laws vary in approach, but most empower state and local law enforcement officers to stop, query, and detain those suspected of being in the country illegally. Other key provisions discourage employment by imposing criminal penalties on undocumented workers who unlawfully seek or obtain work.
Supreme Court Immigration Decision
In June 2012, the authority of a state to prevent illegal immigration by making it criminal and requiring its law enforcement officers to check on immigration status was the central issue decided by the U.S. Supreme Court in reviewing a lower federal court ruling that prevented four key provisions of Arizona’s immigration law from going into effect. The Court struck down three of the provisions, ruling that states are not allowed to adopt their own immigration laws making unlawful entry to the state a criminal offense. The Supreme Court upheld the right of Arizona to require its law enforcement officers to question a person detained on suspicion of committing a crime whether he or she is a U.S. citizen or lawfully in the U.S. However, the Court cautioned that the legality of singling out persons for questioning because they “appear” to be from another country and detaining someone for an unreasonable period of time would not be lawful.
But the Court ruled that the fourth provision—dubbed the “show me your papers” provision—should be allowed to take effect. It requires state and local law enforcement conducting a stop, detention, or arrest to verify the person’s immigration status under certain circumstances. The Court said that the requirement doesn't interfere with federal law, which encourages the sharing of information about possible immigration violations.
Opponents of the Arizona law argued it would encourage unlawful profiling, but the law specifically bars officers from considering race, color, or national origin while applying its provisions. Until the law goes into effect—and the state has a chance to apply it—the Court ruled that it would be inappropriate for the court to review its validity [Arizona v. United States, June 2012].
It’s important to note that the Court’s ruling in the Arizona case doesn’t address what housing providers should—or shouldn’t do, according to attorney Hein. In fact, Arizona Attorney General Tom Horn issued an advisory to assurehousing providers that the Arizona law doesn’t change or apply to current fair housing laws. In an advisory, Horn said that the law “provides no legal authority for, nor does it require, landlords and property managers to inquire about a potential or existing tenant’s immigration or citizenship status.” Nor does the law require housing providers to report known or suspected undocumented persons to law enforcement authorities, he said. “Procedures to screen potential and existing tenants for citizenship and immigration status may violate prohibitions on national origin housing discrimination.”
Nevertheless, the Arizona ruling is important because the same arguments have been raised in other lawsuits involving state and local laws that directly affect rental housing providers. Case in point: Alabama.
In 2011, Alabama adopted the strictest immigration law in the nation, intended to “attack every aspect of an illegal immigrant’s life,” according one legislator. Among other things, the law makes it unlawful for illegal aliens to enroll in or attend public college, fail to carry alien registration documents, or apply for work in the state. Despite legal challenges and objections from business leaders and others, the state legislature in May 2012 reaffirmed much of the original law—while adding some new controversial provisions, according to the New York Times.
In separate rulings last year, courts invalidated two housing-related provisions. In the first, decided in September, the court ruled that federal law preempted Alabama’s “harboring” provisions, which among other things criminalized “entering into a rental agreement…with an alien to provide accommodations if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States.” Although the Alabama law aims to apply to the same subject as federal law, the court said that nothing in federal immigration law criminalizes such rental agreements [United States v. State of Alabama, September 2011].
In December 2011, a court issued an order to stop another provision, which prohibited “business transactions” between illegal aliens and state and local government agencies, from taking effect. Fair housing advocates argued that the Alabama provision operated to prevent mobile home owners from obtaining licensing documents needed to live in their homes. The court ruled that the law was preempted because the state usurped federal control over immigration by establishing its own residency regulation for unauthorized aliens. (In related litigation, the federal appeals court in March 2012 expanded an order to put this provision on hold pending further proceedings.)
In addition, the court agreed with fair housing advocates, who argued that the provision discriminated against Latinos in violation of federal fair housing law based on race and national origin. In essence, they argued, the provision made housing unavailable by conditioning residence in manufactured homes on a demonstration of lawful presence in the United States.
The court ruled that the provision may violate fair housing law based on intentional—and unintentional—discrimination against Latinos. After reviewing the legislative history, the court found enough evidence of a discriminatory bias against Latinos behind passage of the law to prevent the law from taking effect, pending further court review. Even if not the result of intentional discrimination, the provision may be unlawful because it has a disparate impact based on race and national origin by significantly restricting housing for Latinos in Alabama [Central Alabama Housing Center v. Magee, December 2011].
While state-wide measures adopt a sweeping approach, a number of local governments across the country have enacted ordinances aimed specifically at keeping illegal immigrants out of rental housing. For the most part, federal courts have invalidated the ordinances, ruling that such local ordinances are illegal under, and preempted by, federal law. We’ll take a look at just one—affirming a 2010 ruling that struck down an immigration-related rental housing ordinance in Farmers Branch, Texas (first summarized in the December 2010 Fair Housing Coach, available in our online Archive).
In March 2012, a federal appeals court ruled that the Farmers Branch ordinance, which required all adults living in the rental housing to obtain an occupancy license conditioned on the occupant’s citizenship or lawful immigration status, was unconstitutional. The ordinance made it a criminal offense not only for occupants to lie about their immigration status, but also for lessors to knowingly permit a person to occupy a rental unit without a valid license.
The court traced the ordinance’s history back several years while the city council considered the perceived ills posed by illegal aliens, particularly Latinos, living in the city. In addition to declaring that English was its official language, the city adopted a series of ordinances attempting to regulate immigration in the rental housing context, which in turn faced opposition in court. The purpose of all three, according to members of the city council, was to reduce the number of illegal immigrants in the city.
Groups representing both landlords and tenants sued, arguing the law conflicted with federal immigration law, and was therefore unconstitutional. In March 2010, the court agreed, noting that federal law established an elaborate system for determining an individual’s right to remain in the country, and the city did not have the authority to set up its own restrictions on an alien’s residence in the city [Villas at Parkside Partners d/b/a Villas Parkside v. City of Farmers Branch, March 2010].
In March 2012, the appeals court upheld the ruling that the ordinance was unconstitutional. Because the sole purpose and effect of the ordinance was to target the presence of illegal aliens within the city and cause their removal, it trampled on the federal government’s exclusive authority over the regulation of immigration and conditions of residency in this country.
In closing, the court noted that the country had a large Latino population and that millions of Latinos live here without legal permission. “However, the great majority live quietly, raise families, obey the law daily, and do work for our country. For all that they contribute to our welfare, they live in constant dread of being apprehended as illegal immigrants and being evicted, perhaps having their families disrupted. As unsatisfactory as this situation is, it is the immigration scheme we have today. Any verbal and legal discrimination against these people, as Farmers Branch exemplifies in this ordinance, exacerbate the difficulty of that immigration scheme. This is a national problem, needing a national solution” [Villas at Parkside Partners v. City of Farmers Branch, March 2012].
COACH’S TIP: Check with your attorney if your community is located in the handful of jurisdictions that have imposed immigration-related restrictions on rental housing. Based on the Supreme Court’s decision involving Arizona’s immigration law, Hein believes that state and local governments have very little authority to adopt any law that makes it unlawful for housing providers to rent an apartment to an illegal immigrant. To date, federal courts have either struck down or put these local measures on hold at present, but it’s still a good idea to get legal advice if your community is directly affected by any state or local requirements related to immigration status.
Take The Quiz Now
|August 2012 Coach's Quiz