How to Fulfill Your Duty to Prevent Race Discrimination

Recent protests against racial inequities in policing have drawn attention to racism elsewhere, including in housing.

 

In this month’s lesson, the Coach focuses on fulfilling your obligation to comply with fair housing rules banning discrimination based on race and color.

Spurred by the death of George Floyd, protests across the country have rekindled attention on the Black Lives Matter movement and racial inequities involving policing practices and the criminal justice system. Against the backdrop of the coronavirus crisis, the movement has also drawn attention to broader issues of systemic racism in healthcare, employment, and housing.

The fight against racial discrimination and segregation was one of the main reasons that the federal Fair Housing Act was passed more than 50 years ago. When the landmark legislation was passed in 1968, Congress declared that ensuring fair housing throughout the United States was a national policy of the “highest priority.” The goal of the new law was to replace racially segregated neighborhoods with “truly integrated and balanced living patterns.” 

In the years that have passed since then, the number of complaints of race discrimination, which once held the top spot, have steadily decreased. In the meantime, the number of disability discrimination complaints have steadily increased, now accounting for more than half of all formal fair housing complaints.  

Some see the decreasing number of race discrimination complaints as a sign of progress to achieve equal housing opportunities regardless of race. But others say the country still has far to go to eliminate racial discrimination in housing. Though it’s rare to hear reports of blatantly racist practices, fair housing advocates believe racial discrimination has simply gone underground, replaced by more subtle forms of discrimination that are more difficult to detect.

Example: A June 2020 study by a research team from Suffolk University Law School found that Greater Boston landlords and agents discriminate against Black renters and those with Section 8 housing vouchers, illegally shutting out qualified renters. 

According to researchers, the study revealed that housing providers, mostly real estate brokers, showed Black testers about half the number of apartments they showed to white testers. They told white testers that more units were available, showed them more units, offered them more incentives to rent, and made more positive comments about the units.

Overall, the study showed that Black testers faced discrimination in 71 percent of the tests (for example: not being able to make an appointment, not being offered an application, not being offered financial incentives, like a free parking space or rental discount, that were offered to white testers). When agents dealt with Black testers, the incidence of “ghosting”—cutting off communication—was much higher. White testers continued to hear back from agents 92 percent of the time. Black testers heard back only 62 percent of the time.

The testing also uncovered high levels of discrimination against people with Section 8 housing vouchers, regardless of race. Ninety percent of the testers who indicated they were using a voucher faced discriminatory behavior from a rental agent (such as cutting off communication with the tester, not offering a rental application, not setting up an appointment to visit properties).

“The COVID-19 crisis and killing of George Floyd and so many other unarmed Black people has shone a bright light on the negative effects of the structural racism that has always existed in our country. This is a problem right here in our own community,” said Law Professor William Berman, director of Suffolk Law’s testing program.

Whatever your views in this volatile political climate, it’s essential to remember that multifamily housing communities and other housing providers have a duty to comply with longstanding fair housing laws banning discrimination based on race and color.

In this lesson, we’ll review fair housing requirements and offer six rules to help you fulfill your obligation to prevent race discrimination at your community. Then you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) forbids housing discrimination because of race or color, national origin, religion, gender, disability, and familial status (having children under age 18). The law applies to rental, sales, lending, and other housing transactions.

With respect to rental housing, the FHA declares certain practices to be unlawful when based on race and color-and any other protected characteristic. Among the prohibited practices are:

• Making housing unavailable by excluding or otherwise denying housing;
• Imposing different terms, conditions, or privileges for rental, such as higher rental payments or fees, more stringent screening criteria, or different housing services;
• Making discriminatory statements, including advertising;
• Misrepresenting the availability of rental units;
• Threatening, harassing, or retaliating against anyone for exercising their rights under fair housing law.

Coach’s Tip: Anyone who experiences discrimination because of race or color may pursue a fair housing claim—whether or not she’s a member of a minority group. Early court cases established that white residents may make claims of racial discrimination based on a denial of their right to associate with African Americans. Allegations of fair housing violations have been brought by interracial couples and the parents of biracial children, as well as white residents who were subjected to discrimination because of the race of their family members, friends, or guests.

SIX RULES TO FOLLOW FOR PREVENTING RACE DISCRIMINATION

Rule #1: Keep Race Out of the Leasing Process

Don’t allow race to play any part in decisions about who may live in your community. Under the FHA, it’s unlawful to deny housing or treat people differently based on their race or color. Discriminatory conduct can be overt or subtle—it’s just as unlawful to blatantly refuse to rent to African-American prospects as it is to treat them differently than whites by misrepresenting availability, quoting higher rent requirements, or applying more stringent screening criteria.

Example: In June 2020, HUD announced that it approved a $35,000 settlement resolving claims of racial discrimination at a multifamily community on Long Island, N.Y. Specifically, the complaint alleged that the employees treated white testers posing as prospective residents who were inquiring about apartments more favorably than Black testers posing as prospective residents.

A fair housing organization filed the HUD complaint after several African Americans reported that they believed they were denied the opportunity to rent apartments at the community because of their race. As a result, the organization conducted fair housing testing using white and Black testers who posed as prospective renters. According to the complaint, the organization’s investigation showed that white testers received more favorable treatment, including being told about the upcoming availability of units, while Black testers were told that there was a long waiting list and that no units were available. The owners denied the allegations but agreed to settle the complaint.

“The color of a person’s skin shouldn’t determine whether they have the opportunity to obtain a place to live,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “That type of discriminatory treatment is unacceptable, and today’s settlement reaffirms HUD’s commitment to taking appropriate action when housing providers violate the law.”

Example: In March 2020, the Fair Housing Justice Center (FHJC) announced a $300,000 settlement to resolve a fair housing case against the owners, broker, and building superintendent of a 48-unit community in a predominantly white neighborhood in Brooklyn. The lawsuit, filed by the FHJC and five African-American testers, alleged that the community racially discriminated against African-American prospects in violation of federal, state, and local fair housing laws. According to the FHJC, its investigation found that African-American and white testers were treated very differently based on race. The FHJC alleged that for years, white testers were repeatedly shown available apartments at the building while no African-American testers ever saw an apartment. The defendants denied liability but agreed to the settlement.

FHJC Executive Director Fred Freiberg stated, “African-American renters and home buyers continue to face persistent and pervasive racial discrimination in housing fifty-two years after the passage of the federal Fair Housing Act. Over the next few years, the FHJC will focus more of its investigative and enforcement resources on ferreting out racially discriminatory housing practices throughout the New York City region.”

Example: In December 2019, the South Suburban Housing Center (SSHC), a regional fair housing agency serving the south metropolitan Chicago area, announced that it filed a lawsuit accusing the owners and managing broker of a community in the metropolitan Chicago area of race discrimination. Specifically, the complaint alleged that the defendants refused to make appointments to show available apartments to African-American prospects and misrepresented the availability of housing to an African-American prospects.

According to SSHC, its fair housing investigation showed that white prospects responding to the community’s online apartment availability ads were able to call and schedule appointments, see the available apartment, and were encouraged to submit applications. When equally qualified African-American prospects responded to the online ads, SSHC said, they were not able to obtain the address of the unit, confirm or set up times to view, and in one instance were falsely told the unit was no longer available.

“Defendants’ actions in not allowing qualified African-American renters to literally get inside the door to apply for their advertised apartment, is the dramatic evidence that compelled SSHC to file this complaint,” SSHC Executive Director John Petruszak said in a statement.

Rule #2: Apply Uniform Qualification Standards, Regardless of Race

The FHA bars unequal treatment in the application process, for example, by using different rental procedures or screening criteria—such as income standards, application requirements, application fees, credit analysis, rental approval procedures, or other requirements—because of race or other protected characteristic, according to HUD regulations.

Whatever your policy on criminal background screening, for example, be sure that you apply it consistently—without regard to race and color, or other protected characteristics. Applying it only to applicants who are members of racial or ethnic minorities, but not to white applicants, could lead to fair housing trouble.

Example: In August 2019, the owners and managers of a Tennessee community agreed to pay $42,500 to resolve allegations of race discrimination by denying the application of an African-American applicant because of his criminal record, despite contemporaneously approving the rental applications of two white people with disqualifying felony convictions. The community denied the allegations but agreed to settle the case [U.S. v. Dyersburg Apartments, LTD., Tennessee, August 2019].

Rule #3: Beware of Unlawful Steering

When showing available units in your community, refrain from any comments or conduct that suggest a prospect should—or shouldn’t—live at your community, or in a particular area within your community—because of her race or color. It’s considered “steering,” an unlawful practice under the FHA, if you direct, guide, or encourage prospects, based on an illegally discriminatory reason, to rent only certain units at a community or to seek alternate living options.

Example: In June 2020, HUD announced that it reached a $200,000 settlement with a public housing authority in Alabama after a HUD compliance review identified racial discrimination in the housing authority’s rental policies, waiting lists, and transfer requests with regard to its senior residents. HUD reported that its review showed that the housing authority discriminated against elderly Black applicants who applied for housing at more desirable properties by repeatedly skipping over them on the wait list even though they were next to receive a unit. Allegedly, Black applicants were also steered to less desirable units at one of the housing authority’s racially and ethnically concentrated properties. The housing authority denied the allegations but agreed to settle the case.

Example: In May 2020, the Justice Department filed a lawsuit against the owners and managers of multifamily housing communities in Georgia, alleging that they violated federal fair housing law by intentionally discriminating on the basis of race against African-American applicants for housing.

The lawsuit alleged that from at least 2012 to 2018, the defendants steered African-American housing applicants who were elderly or had a disability away from a predominantly white housing complex to a predominantly African-American housing complex, which was inferior in appearance, location, and amenities to the predominantly white community. Both complexes were located in the same city in Georgia. The complaint also alleged that the defendants subjected African-American residents who are elderly or have a disability to less favorable rental terms, conditions, and privileges as compared to similarly situated white residents, and denied African-American applicants more desirable units at the predominantly white community. The complaint contains allegations of unlawful conduct, which must be proven in federal court.

“Congress enacted the Fair Housing Act in 1968 to protect Americans from the racially motivated violence and discrimination that has stained our nation’s history. More than five decades later, our nation regrettably continues to suffer the scourge of racial bias,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement. “The Department of Justice will continue to fight to protect the rights of all Americans to rent and own their homes without regard to their race.”

DEEP DIVE:

What Is Steering?

According to HUD regulations, unlawful steering includes:

• Discouraging prospects from renting a unit because of a protected characteristic of the prospect or the people living in the community;
• Exaggerating drawbacks or failing to inform any person about desirable features of a unit or the community because of a protected characteristic;
• Telling the prospect that he wouldn’t be comfortable or compatible with existing residents of the community because of a protected characteristic; or
• Assigning applicants to a particular section of a community or floor of a building because of a protected characteristic.

Rule #4: Focus on Employee Training and Supervision

Focus on employee hiring, training, and supervision to prevent divisive political issues from affecting how prospects, applicants, and residents are treated at your community based on their race or color—and any other protected characteristics.

Train and regularly retrain all employees—from your leasing agents to maintenance staff, and everyone in between—to ensure that everyone is treated in the same professional manner, without regard to their race, color, or other protected class. You should also make sure all new hires receive adequate training in your policies and procedures, and at least the basics of fair housing law, before you allow them to interact with the public.

Even the best policies and training won’t protect your community from fair housing problems if personal biases affect how prospects, applicants, or residents are treated based on their race, or other protected characteristics.

Example: In July 2019, HUD charged a Texas couple with violating fair housing law by refusing to lease a room to a prospective tenant because she’s Black. HUD’s charge alleged that in online advertising for a room in a five-bedroom house, the husband required applicants to identify their race and submit a photograph of themselves. When she called about the room, the prospect said she refused to comply with the husband’s request for a picture or “selfie.” According to the prospect, they agreed to meet at the house, but when he saw that she was Black, he refused to show her the room, stating that her race would make his wife and the other residents uncomfortable. The couple denied the allegations.

“A person’s race should never determine whether or not they have access to a place to call home,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s action reflects HUD’s ongoing commitment to taking appropriate action when the Fair Housing Act has been violated.”

Coach’s Tip: Some social scientists suggest that people of all races to some extent have an implicit racial bias. Unconsciously, it could lead employees to be friendlier or more helpful to white prospects than to others, raising the perception that members of racial minorities aren’t welcome at your community. Though not unlawful in itself, that perception may be enough to cause someone to suspect that any adverse action—the denial of her application, for example—was motivated by racial bias.

Rule #5: Review Your Criminal Background Policy

Criminal background checks are the latest battleground for potential race discrimination claims. If it’s been a while since you last reviewed your policy, it’s important to check to make sure your policy doesn’t run afoul HUD guidelines addressing the discriminatory effect that criminal background policies may have on racial and ethnic minorities.

The vast majority of fair housing cases are for intentional discrimination (or what’s known as “disparate treatment”—that is, purposely treating people differently because of their race, color, or other protected characteristics. But you could face a fair housing claim even when there’s no intent to discriminate: In what’s known as “disparate impact” claims, communities may be held liable for policies or practices that appear to be neutral, but have an unjustified discriminatory effect on minorities or others protected under fair housing law.

Example: In November 2019, the owners and operators of a 900-unit New York apartment complex agreed to pay $1.1 million to settle a race discrimination case alleging that the community enforced a policy prohibiting anyone with a criminal record from living there. The complaint alleged that the policy unlawfully discriminated because it disproportionately barred African Americans and Latinos from housing without considering each potential resident’s individual history and circumstances. The community denied the allegations but agreed to settle the case.

Example: In August 2019, a Virginia community agreed to settle allegations that its criminal background screening policy discriminated against people on the basis of race. The complaint was based on the results of a fair housing testing conducted by advocacy groups to assess the barriers individuals with criminal histories face when seeking housing. Allegedly, the testing showed that testers posing as prospects were told that their applications would be automatically rejected because of their felony convictions. The community denied the allegations but agreed to the settlement requiring payment of damages and attorney’s fees.

DEEP DIVE:

HUD Guidance on Criminal Background Checks

In 2016, HUD issued guidance on how federal fair housing law applies to the use of criminal records in both conventional and government-assisted housing communities. HUD cited statistics showing that African Americans and Hispanics are arrested, convicted, and incarcerated at disproportionately higher rates than whites with respect to their share of the general population. The guidelines don’t prevent communities from screening applicants based on their criminal history, but you could face a fair housing complaint if your criminal screening policy, without justification, has a disparate impact—or discriminatory effect—on minority applicants.

If you haven’t updated your policy for a while, there are some steps you should take ASAP to reduce the risk of fair housing trouble. If, for example, your policy still considers arrest records in criminal background screenings, you should make some changes immediately. HUD’s new guidelines flatly say that excluding someone based on arrest records is likely to have a discriminatory effect based on race and national origin.

Check whether your policy still lists “all felonies” or long-ago felonies as reasons not to rent to someone. If so, you may be headed for trouble because the guidelines call into question the lawfulness of excluding people based on criminal convictions without considering what the conviction was for or how long ago it occurred.

Taking it a step further, check whether your policy allows applicants to explain the background of a felony conviction. The HUD guidelines say that communities should offer applicants with criminal records an opportunity to explain the circumstances and what’s happened since then—something akin to the “interactive” process for disability-related reasonable accommodation requests.

Rule #6: Take a Hard Line Against Racial Harassment

Given today’s volatile political climate, it’s more important than ever to be vigilant for any signs of racially motivated harassment, discrimination, or violence directed against anyone at your community. 

Fair housing law bans not only sexual harassment, but also harassment based on race or color, and other protected characteristics. As a general rule, community owners may be liable for illegal harassment by managers or employees, when they knew or should have known about it but failed to do enough to stop it. Moreover, the FHA makes it unlawful to intimidate, threaten, or interfere with anyone exercising his fair housing rights.

Take all necessary steps to prevent—and address—discrimination or harassment at the community. You don’t have only your employees or staff members to worry about—you could face liability for tenant-on-tenant harassment under certain circumstances. Under HUD regulations, communities may be liable under the FHA for failing to take prompt action to correct and end a discriminatory housing practice by a third party, where the community knew or should have known of the discriminatory conduct and had the power to correct it. The power to take prompt action to correct and end a discriminatory housing practice by a third party depends upon the extent of your control or any other legal responsibility you may have with respect to the third party’s conduct.

Example: In November 2019, HUD announced that it reached a $80,000 settlement to resolve allegations that the owners and manager of a Georgia community ignored complaints by African-American residents of repeated racial harassment by white neighbors.

Three African-American residents filed the HUD complaint, alleging that the community refused to investigate and address their claims that their white neighbors subjected them to racial harassment and verbal and physical assaults, including attacks by dogs. The community denied the allegations but agreed to the settlement requiring payment of $20,000 to each of the three residents and to create a $20,000 fund to compensate other residents who may have been subjected to racial harassment.

“No one should ever have to face threats or be subjected to physical violence in the place they call home because of their race,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “The agreement we’re announcing today is a reminder to housing providers everywhere that HUD is committed to ensuring that they meet their obligation to comply with the nation’s fair housing laws.”

UPDATE:

Tenant-on-Tenant Harassment

In the January 2020 lesson, Fair Housing Coach highlighted an appeals court ruling that a New York community could face liability under the FHA for failure to stop an alleged campaign of racial harassment against an African-American resident by his neighbor. In recent action, the appeals court agreed to a rehearing in the case; oral arguments are scheduled for September 2020.

In his complaint, the resident alleged that his next-door neighbor engaged in a months-long campaign of racial harassment, abuse, and threats against him. According to the resident, he contacted police and notified management about the neighbor’s abuse at least three times, but management failed to intervene. Ultimately, the neighbor was arrested and pleaded guilty to aggravated harassment.

The resident sued, accusing the community of violating fair housing law by failing to take action to address a racially hostile housing environment created by his neighbor. A district court ruled against the resident and dismissed the case.

After a series of proceedings, a panel of the appeals court reversed, ruling that the resident could pursue his claims against the community for intentional discrimination under the FHA by failing to do anything to stop the neighbor from subjecting him to a racially hostile housing environment [Francis v. Kings Park Manor, Inc., New York, December 2019].

Coach Resources

• Fair Housing Act: 42 USC §3601 et seq.
• HUD: Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (April 4, 2016)
• HUD: Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act — Final Rule (September 14, 2016)