How to Face Your Fair Housing Fears and Everyday Dilemmas
Are you confident when it comes to fair housing? Or are you worried about falling short and inadvertently triggering a discrimination claim? It’s bad enough when seemingly small missteps cause problems, but it’s even worse when those problems escalate into costly lawsuits.
You’re probably well aware of the potentially costly ramifications of a fair housing complaint. No doubt you’ve heard about communities forced to pay out thousands—even millions—in damages or settlements, along with costly attorney’s fees, to resolve allegations of housing discrimination.
But there’s no need to fear fair housing law—if you get to know the rules and avoid the blunders that so often lead to fair housing complaints. In this lesson, we’ll review the law and offer seven strategies to help tame your fair housing fears and minimize the risk of getting hit with a discrimination claim. Then you can take the Coach’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The FHA prohibits housing discrimination based on race, color, religion, sex, national origin, disability, and familial status —also known as “protected classes.” Depending on where you’re located, there may be additional protected classes—such as marital status, sexual orientation, or source of income—under state or local fair housing laws.
In a nutshell, fair housing law forbids communities from denying housing to people—or treating them worse than others—because they are a member of a protected class. Examples include misrepresenting whether a unit is available, quoting higher rental charges, or steering people away from living in the community because of their race or other protected class. Illegal discrimination against residents includes denying access to community facilities, failing or delaying maintenance services, or singling them out for lease violations because they are members of a protected class.
In addition, it’s unlawful to advertise or make statements that indicate a preference, limitation, or discrimination based on race, color, religion, sex, national origin, 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.
The FHA further protects individuals with disabilities from housing discrimination by making it unlawful to refuse requests for reasonable accommodations or modifications when necessary to allow individuals with disabilities to fully use and enjoy a dwelling. By definition, reasonable accommodations are exceptions to your general rules, policies, procedures, or services. Common examples include requests to keep assistance animals in communities with no-pet policies and requests for reserved parking spots in communities that don’t have assigned parking. In general, communities are required to grant accommodation requests if it’s both reasonable and necessary to allow an individual with a disability to fully use and enjoy the community. In general, communities are responsible for paying the costs associated with a reasonable accommodation as long as it doesn’t pose an undue financial and administrative burden.
Reasonable modifications are structural changes to interiors and exteriors of units and to common- and public-use areas, such as lobbies, main entrances, and parking lots. Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area. In general, residents are responsible for paying the cost of the reasonable modifications.
Coach’s Tip: The FHA also includes accessibility requirements in the design and construction of rental housing built since the early 1990s. The rules, which apply to housing with four or more rental units that were first occupied after March 13, 1991, require:
- An accessible entrance on an accessible route;
- Accessible common and public use areas;
- Doors sufficiently wide to accommodate wheelchairs;
- Accessible routes into and through each dwelling;
- Light switches, electrical outlets, and thermostats in accessible locations;
- Reinforcements in bathroom walls to accommodate grab bar installations; and
- Usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.
7 RULES TO HELP YOU
FACE FAIR HOUSING FEARS AND EVERYDAY DILEMMAS
Rule #1: Knowledge Is Power
Learning about the law is key to gaining your confidence and taming your fair housing fears. You can’t just sit back and say you didn’t know something was illegal under fair housing law. “Ignorance of the law is no excuse,” warns fair housing expert Anne Sadovsky.
That’s why fair housing training is so important: It’s essential for everyone working at the community, regardless of his or her job, to understand what’s okay—and not okay—to do or say when interacting with applicants, residents, and guests at the community.
It’s critical for employees working in the leasing office to have a thorough understanding of fair housing law, but it’s no less important for the people in your service department, Sadovsky says. With more people using online services to pay their rent and perform other functions, she points out that service techs may spend more time than anyone else interacting with residents in units and on the grounds as they go about their work.
It’s common to conduct fair housing training at regular intervals, but what about temporary workers and newly hired employees? Sadovsky warns against allowing temps or new hires to interact with the public until they receive at least some fair housing instruction. “Any company or employer in this industry that doesn’t give fair housing training on day one is at risk,” she says. That applies to all new hires, not just those in your leasing office, says Sadovsky, who recommends mandatory fair housing training on the first day on the job for everyone—including service techs, maintenance workers, landscapers, and housekeeping staff.
Rule #2: Put It in Writing
Having a written fair housing policy lets everyone—from your staff, to prospective and current residents, to fair housing advocates and regulators—know that your community doesn’t tolerate discrimination based on race, color, religion, sex, national origin, disability, familial status, or any other characteristic protected by state or local law.
Once your policies are in place, don’t neglect to keep them up-to-date, says Sadovsky. She says she’s seen cases where the community had the right policy—and was doing the right thing—but faced problems defending itself from discrimination claims because of outdated rules or signs.
For instance, she still sees communities that have pool signs with some variation of “No children between ages 3 and 12 on Saturday, adult swim.” Sadovsky warns that signs like these could trigger a complaint, or be used against you, if you’re ever accused of discriminating against families with children.
Coach’s Tip: To ward off discrimination claims by families with children, Sadovsky says it’s a good idea to review policies, rules, and signs to take out the word “child,” and replace it with “no one.” As an example, she says that instead of signs warning that children cannot ride bikes on the sidewalk, your signs could say that no one can ride bikes on the sidewalk. That way, you’re addressing the problem behavior, rather than targeting children’s activities.
Rule #3: Keep Up with Current Events
Though the FHA has been on the books for decades, there’s a lot to keep up with as enforcement agencies and the courts apply the law to changing circumstances. It’s also necessary to keep up with efforts to expand state and local fair housing laws beyond the seven federally protected classes. Sadovsky warns that failure to stay up to date on all fair housing laws affecting your community could lead to fair housing trouble.
As an example, Sadovsky points to HUD’s 2016 guidance on the use of criminal records in both conventional and assisted housing communities. In general, the guidance warned that criminal background policies against renting to applicants with any kind of criminal record could trigger a fair housing complaint for discrimination based on race or national origin. Though the courts have yet to issue any definitive rulings, you should review your policies to avoid drawing the attention of enforcement agencies or fair housing advocates looking for the next test case.
Example: Last year, five rental housing companies in the state of Washington agreed to pay fines and penalties to resolve allegations that they violated federal and state fair housing law by applying blanket bans on applicants with a past felony. Although criminal convictions may be grounds for housing providers to deny applicants after appropriate inquiry, state officials said that fair housing laws prohibit landlords from applying overly broad bans on those convicted of crimes, because such bans are likely to discriminate against minorities.
The cases resulted from an investigation conducted by the state Attorney General’s office. When contacted by an investigator posing as a prospect with a felony conviction, some communities appropriately followed up with questions as to the nature, circumstances, and timing of the felony, but investigators alleged that five providers flatly denied applicants based on the mention of a criminal history, without asking for any further information. The companies settled the case without admitting liability. (See “At a Glance,” below, for more about HUD’s guidance on this topic.)
In another key development, Sadovsky points to HUD’s 2016 guidance on how fair housing law applies to claims of housing discrimination brought by people because they don’t speak, read, or write English proficiently. Though people with limited English proficiency are not a protected class under the FHA, the law bans discrimination based on national origin, which is closely linked to the ability to communicate proficiently in English.
The guidance warns that the law prohibits communities from using limited English proficiency selectively or as an excuse for intentional housing discrimination. The law also prohibits communities from using limited English proficiency in a way that causes an unjustified discriminatory effect on people based on their national origin. For example, the community cannot refuse to show or rent the housing just because the person can’t speak English.
TO LEARN MORE: See the Coach’s May 2017 lesson, “Avoiding Legal Trouble When Renting to Immigrants and Noncitizens,” available on our website here, and our companion one-hour webinar recording, available here.
At a Glance: HUD’s Guidance on Criminal Background Policies
Fair housing law prohibits both intentional discrimination and housing practices that have an unjustified discriminatory effect based on race, national origin, and other protected characteristics. Because of widespread racial and ethnic differences in the U.S. criminal justice system, the HUD guidance stated that restrictions on housing based on criminal history are likely to disproportionately affect African Americans and Hispanics. According to the guidance:
- The FHA does not prohibit communities from appropriately considering criminal history information when making housing decisions.
- The discriminatory effect of a policy that denies housing to anyone with a prior arrest or any kind of criminal conviction (a blanket denial) cannot be justified, so it would violate fair housing law.
- Policies that exclude people based on criminal history must be tailored to serve the community’s substantial, legitimate, nondiscriminatory interest and take into consideration such factors as the type of crime and the length of the time since conviction.
- Where a policy excludes people with only certain types of convictions, the community must still prove that any discriminatory effect caused by the policy is justified. That determination must be made on a case-by-case basis.
- Selective use of criminal history as a pretext for unequal treatment of people based on race, national origin, or other protected characteristic violates fair housing law.
TO LEARN MORE: See the Coach’s June 2016 lesson, “Q&A on HUD’s New Guidance on Criminal Background Checks,” available on our website here, and our one-hour webinar recording, “Applicant Screening and Criminal Histories: Addressing Disparate Impact Liability Under the Fair Housing Act,” available here.
Rule #4: Use Your Common Sense
If someone tells you something that doesn’t sound quite right, don’t simply rely on what could be incorrect information. “Use your common sense: Ask questions and find out the truth,” Sadovsky says.
Sometimes what people tell you about fair housing law may be like what happens in a game of telephone, where children sit in a circle and repeat a statement to the person sitting beside them. When the child at the end of the circle says the statement out loud, it’s usually hilariously unlike the original statement.
The same thing can happen when someone tells you something they “know” about fair housing law. Just like the last child in the circle, you may be getting a garbled message—and something that’s far different from what it’s supposed to be—but in a decidedly unfunny way that can lead to fair housing trouble.
To avoid falling prey to incorrect information, listen to your gut if someone tells you something that just doesn’t sound right. “If something you hear doesn’t make sense to you—if you have any question at all—then ask,” Sadovsky says. “Don’t take action based on it unless you’re sure it’s right.”
And don’t be afraid to ask questions if you’re not quite sure about fair housing rules, Sadovsky says. For example, people often seem confused about what they can—or can’t—do or say during holidays. They know the law bans discrimination based on religion, but wonder whether they can get into trouble for saying “Merry Christmas” or displaying manger scenes. The short answer: Sadovsky says that it’s okay to wish people a “Merry Christmas,” which has been recognized by HUD as a secularized statement, but it’s a good idea to avoid decidedly religious displays like manger scenes, which could raise fair housing concerns.
Over the years, Sadovsky has honed this list of words that should—and shouldn’t—be used to steer clear of potential fair housing problems.
DO: Use neutral terms and phrases, including:
- Master Bedroom
- Great View
- Desirable Neighborhood
- Walk-In Closets
- Jogging Trail
- Walk to Bus Stop
- Quiet Street
- Family Room
- Santa Claus
- Easter Bunny
- Merry Christmas (But note that holiday decorations should not have a religious aspect).
DON’T: Use discriminatory words or phrases, including:
- Adults Preferred
- Separate Adult Building
- Men Only
- Women Only
- Christian Property
- Exclusive Neighborhood
- Children’s Pool
- Professionals Only
- Children Over 6 Only
- Empty Nesters
- Elevator Perfect for Seniors
- No Animals
Rule #5: Pay Attention to Disability Concerns
Pay particular attention anytime anyone raises disability-related concerns, complaints, or problems, because disputes over animals, parking, and other reasonable accommodation requests so often lead to fair housing trouble. In general, you must make exceptions to your general rules for individuals with disabilities when it’s both reasonable and necessary under the circumstances.
You can’t ignore accommodation requests simply because the person doesn’t appear to be disabled. The law’s disability protections apply to people with physical or mental impairments that substantially limit one or more major life activities—even when they aren’t obvious or apparent.
Sometimes, problems arise because someone with a medical problem considers himself to be disabled but doesn’t qualify under the FHA’s technical requirements as an individual with a disability. Although the law applies to a wide variety of physical and mental impairments, the impairment must be serious enough to substantially limit one or more major life activities.
Even when a resident has a qualifying disability, the law doesn’t require you to give her the exact accommodation that she wants. For one thing, the requested accommodation must be necessary to enable the individual with a disability to use and enjoy the dwelling—which means that it must be clearly related to the individual’s disability. For another, it must be reasonable—that is, it would not impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations.
It’s a good idea to get legal advice when confronted with disability-related requests, complaints, or concerns. The disability rules are complicated, so it’s sometimes hard to tell if a resident qualifies as having a disability—or is legally entitled to a requested accommodation. If not handled properly, disputes about disability-related requests may trigger a discrimination complaint—and costly litigation to resolve the matter.
Rule #6: Carefully Consider Requests for Assistance Animals
Be careful when dealing with requests for assistance animals, one of the most common sources of fair housing trouble. Whatever your policy on pets, you must make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy the community.
You can’t turn people away because they ask for a disability-related accommodation or modification. Even if your general policy bans or restricts pets, you could trigger a fair housing complaint if you tell someone that animals aren’t allowed or stonewall them so that you can rent the unit to someone else.
Example: In February 2018, a court ruled that the owners of an Oregon community were liable for violating fair housing law by denying housing to an applicant because she said she had a service animal.
The case began when a woman applied for a vacant unit for herself, her mother, and her young daughter. The application indicated that the mother owned a “VA registered service animal,” which was “trained with documentation.” The mother had various medical conditions and had a puppy that she intended to train as an assistance animal.
The property manager contacted the owner about renting the unit, which had carpeting described by an employee as “FILTY, NASTY,…PUKE.” Despite the community’s policy of allowing animals in units, the owner allegedly said that he was “not super excited about a 50 pound (probably larger) dog on new carpet.” Noting that the family was tight on income, he allegedly suggested a $1,200 deposit. The property manager said that they couldn’t seek a deposit for service animals, but the owner allegedly repeated his concerns and told her not to contact them.
When she called back, according to the daughter, the manager told her that no decision had been made, but their income barely met the financial limits and the owner didn’t want to replace the old, worn-out carpet in that unit and then put an animal in it, so they would have to accept a really high deposit and old carpet.
The family gave away the dog and inquired once again about the unit. When the manager informed the owner, he allegedly told her not to return their call because “they’ll just move the dog in later and we won’t be able to stop them.”
After remaining homeless for two months, the family sued for disability discrimination under federal and state fair housing law.
Siding with the family, the court ruled that the community was liable for discriminating against the family because they said they had a service animal.
Even if the dog didn’t qualify as a service animal, the family could sue for disability discrimination because the owner operated on the assumption that it did. The law’s definition of “disability” includes not only people who have a qualifying impairment, but also those “regarded as” having a qualifying impairment. Because the owner “regarded” the dog as a service animal, the applicants could sue for disability discrimination under fair housing law.
Even if the community never explicitly denied the family the unit, the family produced evidence that the community was motivated by discriminatory intent when it imposed conditions that effectively made the housing unavailable to them. The owner flatly admitted that the community would only offer the unit with the puke-stained carpet and an inflated deposit because the mother had a large service animal [Sanders v. SWS Hilltop, LLC, Oregon, February 2018].
Coach’s Tip: People can sue you for disability discrimination, even if they don’t technically have a qualifying impairment. The law bans discrimination against individuals with “a record of” impairment—that is, people who have a history of, or were misclassified as having, a mental or physical impairment that substantially limits one or more major life activities. The law also protects an individual who is “regarded as” having such an impairment, a catchall phrase that includes an individual with—or without—an impairment when he is treated by another as having such an impairment.
Rule #7: Be Prepared to Handle Online Certifications
To avoid the common mistakes that often lead to fair housing complaints, it’s essential to follow the rules on disability verification. In general, fair housing law forbids housing providers from making disability-related inquiries, but there’s an exception that allows communities to ask for verification in response to a reasonable accommodation request when either the disability—or the disability-related need for the requested accommodation—isn’t obvious or apparent.
It’s particularly important to understand the verification rules now that so many applicants and residents can go online and find a quick “certification” process to say their dog is a certified assistance animal. Often, you’ll be presented with an official-looking certificate embellished with a gold seal and ready for framing. But Sadovsky warns against rejecting the request out of hand simply because it makes you suspicious. You still have an obligation to consider, respond, and act upon the request for an assistance animal.
When an applicant provides you with an online certification that he needs an assistance animal, you should determine whether it meets the requirements that it’s reliable and from someone familiar with the applicant’s disability. If it doesn’t, Sadovsky says it’s better to say thank you, make a copy for the file, and explain to the applicant that the community policy requires verification from a knowledgeable third-party healthcare provider.
Explain that you need the name and contact information so that you can send out the verification form, Sadovsky says, and politely decline an offer by the applicant to get the form signed himself. Explain that the community’s policy is to send out the form directly to the healthcare provider and to have it sent back directly to you.
Check with your attorney about the language to be used on the verification form. In general, you should be able to receive confirmation from the applicant’s treating healthcare provider to verify that the applicant is under the provider’s care and treatment and has a diagnosed medical or mental condition that renders the patient disabled. Also, you may request confirmation from the provider that the animal is prescribed to assist with the disability.
Sadovsky says you may also consider adding language such as, “I understand I may be called to testify as to accuracy in a court of law.” You can’t reject the documentation simply because the provider refuses to sign it, but it might confirm your suspicions about the validity of the request. Before rejecting the request, however, it’s a good idea to check with your attorney about what to do next to avoid triggering a fair housing complaint.
- Fair Housing Act: 42 USC §3601 et seq.
Anne Sadovsky, CAM, CAPS: Certified Speaking Professional, Dallas, TX; (866) 905-9300; firstname.lastname@example.org.
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|April 2018 Coach's Quiz|