How to Keep Maintenance Services from Triggering Fair Housing Claims
This month, we'll explain how to ensure compliance with fair housing laws when providing maintenance and repair services in multifamily housing communities.
Most communities understand the value of good maintenance service in attracting and retaining tenants. The community's reputation as a good place to live—along with a prospect's first impression of how the community is maintained—are key to driving traffic to the site and filling vacancies. And maintenance operations can have a direct effect on renewals: Good service can reinforce the decision to renew leases, while poor service can drive residents away.
In managing maintenance operations, fair housing may not be the first thing that comes to mind. It's much easier to see the connection between fair housing and various aspects of the leasing process, so communities generally understand the need to ensure that the leasing staff knows and understands the ins and outs of fair housing law. But focusing fair housing efforts exclusively on the leasing process can leave a big hole in your compliance efforts. That's because discrimination claims can arise from interactions with any member of your staff—as well as with outside vendors working on your behalf.
Some of the most important, and often overlooked, sources of fair housing complaints arise from maintenance operations. Communities may face allegations of discriminatory maintenance policies or procedures—for example, that requests from white residents are routinely pushed ahead of those from minority residents. Or complaints may stem from accusations of sexual harassment or discrimination by a single individual—a member of your maintenance staff or an outside contractor. And increasingly, maintenance operations are implicated in requests for reasonable accommodations or modifications by individuals with disabilities—for example, requests to alter the interior of a unit or common area to make it accessible for a resident in a wheelchair or to refrain from using pesticides from a resident with disabling chemical sensitivities.
In this lesson, we'll explore the many ways in which fair housing claims can arise from maintenance operations, and offer six strategies to help ward off problems in 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) prohibits housing discrimination based on race, color, national origin, religion, sex, disability, or familial status. In addition, some state and local laws extend fair housing protection to sexual orientation/gender identity, marital status, source of income, and a wide variety of other characteristics.
Among other things, the FHA outlaws discrimination against anyone in the provision of services or facilities in connection with the rental of a dwelling because of a protected characteristic. In particular, it is unlawful to fail to provide or delay maintenance or repairs of rental dwellings because of race, color, religion, sex, familial status, national origin, or disability, according to HUD regulations. Consequently, community owners may be directly liable for adopting policies or practices that discriminate in the level of maintenance services provided to residents based on a protected characteristic.
In addition to claims based on intentional discrimination, known in legal circles as “disparate treatment,” the courts—and HUD—have interpreted the FHA to ban housing practices, which though neutral on their face, have the effect of discriminating against protected classes. Legal experts refer to this type of claim as “disparate impact.” In recent months, the U.S. Supreme Court was poised to hear the issue, but the case was withdrawn from the court's docket, leaving intact the lower court rulings banning the practice. Meanwhile, HUD has taken steps to formally acknowledge that disparate impact claims are covered under the FHA.
With respect to maintenance operations, a community could face a disparate impact claim based on a policy to focus maintenance efforts on certain areas or properties, to the exclusion of others, if it has a discriminatory effect based on the protected characteristics of the residents living there. Such a claim could arise, for example, if the community devotes all its attention to maintaining luxury units or buildings while ignoring basic maintenance chores in lower-rent units or buildings. If most of the residents of the luxury units are white—or childless—but most of the residents in the low-rent units are minorities or families with children, then it could lead to a disparate impact claim.
Beyond community-wide policies or practices, liability for fair housing violations may stem from misconduct by individual employees and, in some cases, outside contractors or vendors. In general, owners are legally responsible for the actions of employees and agents who are authorized to act on their behalf and acting within the scope of their duties. For example, a discrimination claim may be based on discrimination or harassment by a maintenance worker based on his personal prejudices toward Middle Eastern or Muslim residents. If the community knows or should know about his misbehavior, but does nothing to stop it, the community owner—along with the offending employee—could face liability under fair housing law.
The same holds true, though it's more complicated, if it's an outside contractor rather an employee, who's acting in a discriminatory manner. In part, an owner's liability depends on the level of control the community has over the contractor. Nevertheless, the law is broad enough to impose liability on the owners and managers of a community if they know or should know about discrimination or harassment of residents by a vendor or subcontractor but fail to take sufficient action to stop it.
6 RULES TO KEEP MAINTENANCE SERVICES FROM TRIGGERING FAIR HOUSING CLAIMS
Rule #1: Provide All Employees with Basic Fair Housing Training
While leasing consultants may require specialized training, all employees, including maintenance workers, housekeeping employees, landscaping crews, pool attendants, fitness center staff, and the like—should understand the basics of fair housing law.
For example, all employees should know the seven federally protected characteristics—race, color, national origin, religion, sex, disability, and familial status—as well as any characteristics protected under applicable state or local laws. They should also understand the basics about prohibited practices—such as treating residents differently based on a protected characteristic and the ban on discriminatory statements.
Train maintenance and service workers on how to respond to comments or questions that touch on fair housing matters by anyone whom they encounter in the course of their duties. In general, they should understand why they shouldn't answer any questions by visitors about the racial makeup or other protected characteristics of the people living in the community. It could be part of a fair housing test to ferret out unlawful discrimination.
Nor should employees offer personal opinions or indicate agreement with a resident who complains about neighbors, such as displeasure with cooking odors or noisy children. Train employees to keep personal feelings to themselves and to refer the resident to contact the management with any such questions, comments, or complaints. In addition, instruct employees to report such incidents themselves, so the community can document what transpired—and how the employee handled the situation—to ward off later accusations that the employee acted inappropriately.
Moreover, train employees to report any suspicious activity or anything else out of the ordinary to the office. Maintenance workers, housekeeping staff, and other employees are in a unique position to act as the eyes and ears of the management staff to alert them to potential problems, such as disputes among neighbors, complaints about domestic violence, or suspected criminal activity on the premises. Such reports could give you an early warning sign on the potential problem brewing among neighbors, allowing you to head off any potential fair housing problems.
Cultural awareness should be part of fair housing training, so that maintenance and other workers who enter occupied units will respect residents' ethnic or religious customs. In many cultures, for example, it's customary or required to remove footwear upon entering the home. Although safety laws or regulations may prevent workers from removing their footwear when entering these units, some communities provide maintenance workers with foot coverings—such as those used by painters—to wear while providing services inside the unit out of respect for a resident's cultural or religious mores.
COACH'S TIP: Consider adopting a written code of conduct that requires all staff members to treat anyone visiting or living at the community with courtesy and respect without regard to race, color, national origin, or any other protected characteristic under federal, state, or local law. Documentation that all staff members are required to abide by the policy—and are subject to disciplinary action for failure to do so—can help buttress your fair housing compliance efforts.
Rule #2: Adopt Uniform Policies for Handling Maintenance and Repair Requests
In general, it's a good idea to handle maintenance and repair requests on a first-come, first-served basis—unless the request involves an emergency.
Develop a written policy that defines what constitutes an emergency with specific examples of the types of problems that would justify an immediate response. Examples include complaints about smoke, overflowing toilets, and electrical problems. The policy should also outline the types of problems, such as a jammed garbage disposal or stuck closet door, which wouldn't be considered emergencies. While it may be difficult to foresee all types of problems that may arise, the more detailed the list, the better.
The policy should detail the process for handling maintenance requests. For example, the staff member taking maintenance calls or emails should document the time and date of the request, details about the problem, and the name and contact information for the resident making the request. These basic procedures ensure that maintenance services are provided consistently based on reasonable, objective criteria, as opposed to discriminatory factors such as the race or other protected characteristic of the resident making the request.
In addition, make sure that anyone handling your phones after hours, such as an answering service, follows the same policies for handling maintenance and repair requests. For example, the answering service should know how to document the time and nature of the request and to determine whether it fits within your community's defined list of emergencies.
COACH'S TIP: A log showing the date, time, and way that maintenance and repair requests are handled can alert managers to the early warning signs of a potential fair housing problem. A review of the records may reveal that a previously undetected problem—for example, if a particular maintenance worker is ignoring the standard policy by doing favors for white residents to bump their maintenance requests ahead of requests from African-American residents. Periodic review of the records may enable the manager to head off a formal fair housing complaint by addressing the problem immediately with the employee via the community's disciplinary policy.
Rule #3: Take Reasonable Accommodation Requests Seriously
Emergencies aren't the only times that justify making an exception to the first-come, first-served policy for handling maintenance and repair requests. In some cases, a maintenance or repair request may require immediate attention if it qualifies as a reasonable accommodation for an individual with a disability.
Fair housing law requires housing providers to make exceptions to rules, policies, practices, or services as a reasonable accommodation when necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. The rule applies both inside the unit and in common and public-use areas. An exception to the first-come, first-served rule to provide immediate repair or maintenance service could qualify as a reasonable accommodation for an individual with a disability under certain circumstances.
Moreover, federal enforcement officials stress that communities must respond promptly to reasonable accommodation requests. Failure to respond within a reasonable period is considered a denial of the request, setting the stage for a formal complaint or lawsuit.
Example: The federal court in New York recently refused to dismiss a fair housing lawsuit filed by a resident who claimed disability discrimination based on the owner's maintenance practices. The resident alleged that he qualified as an individual with a disability because he had Parkinson's disease, which caused him to shuffle his feet as he walked, and asthma, which caused breathing problems.
The resident alleged intentional discrimination, as well as a failure to accommodate his disability, based on the landlord's alleged refusal to fix several deficiencies—particularly problems with the flooring in his unit and the cement front steps, which caused him to trip and fall because of his disability. He also claimed that black mold throughout the residence aggravated his breathing problems. According to the resident, the landlord had corrected similar problems in an unoccupied second-floor unit to prepare it for rental, but refused to do the same in his unit.
The court dismissed the claim for intentional discrimination, ruling that the landlord's failure to make the repairs didn't amount to discrimination because of his disability. Although the resident claimed that the landlord was favoring future tenants over him, the court said that there was no evidence that he was being treated differently because of his disability.
Nevertheless, the court ruled that he could pursue claims regarding failure to repair the floor, front steps, and mold because those repairs may have been necessary to accommodate his disability. His allegations that he fell a number of times because of defects in the floor and steps—as well as that he had breathing problems related to the mold—were enough to suggest that his particular disabilities gave rise to the duty to repair those conditions [Riccardo v. Cassidy, February 2012].
Carefully review the substance of accommodation requests affecting your maintenance and repair operations. In general, a request for a reasonable accommodation is a change to a rule, process, or procedure, while a request to alter the physical characteristics of a unit or common areas is considered a request for a reasonable modification. Though fair housing law imposes obligations on communities with respect to both types of requests, there's a big difference in who must pay the costs associated with the request. The law generally requires the community to pay the costs associated with reasonable accommodation requests, while residents in conventional housing communities generally are responsible to pay for reasonable modifications. If you aren't sure how to handle a particular request, it's a good idea to get legal advice in an effort to resolve the issue before it escalates into a costly lawsuit.
Example: A New York community won a partial victory when a court dismissed some fair housing claims filed by the mother of a disabled child who alleged that the community failed to provide reasonable accommodations by failing to widen hallways, install a ramp, and fix defects in the lighting and surface of the driveway that made it difficult to navigate her daughter's wheelchair.
The court dismissed claims involving the ramp and other major renovations, ruling that the community wasn't obligated to undertake wholly new construction or modify existing facilities by replacing steps with ramps or widen doorways, because those requests didn't qualify as reasonable accommodations.
In contrast, the court refused to dismiss claims related to the upkeep of the driveway, ruling that failure to fix potholes in the driveway was plainly a service that could be considered a reasonable accommodation, and if so, the community could be required to incur reasonable costs to accommodate the daughter's handicap, provided that the accommodations didn't pose an undue hardship or financial burden [Reyes v. Fairfield Properties, September 2009].
Rule #4: Take Steps to Prevent Sexual Harassment
Community owners have a duty to ensure that their employees, agents, or contractors don't engage in sexual harassment, according to HUD. A property owner or manager may be held liable if he knew or should have known that an employee, agent, or contractor is sexually harassing applicants or residents, but failed in his duty to stop it.
Communities have to take proactive measures to ban sexual harassment, which is considered a form of discrimination based on sex. The first step is to develop a community-wide policy banning sex discrimination. The policy should fully explain the two types of sexual harassment:
Quid pro quo sexual harassment—in which an employee or contractor conditions access to housing or related services on a victim's submission to sexual conduct; and
Hostile environment sexual harassment—in which a resident is subjected to sexual behavior of such severity and pervasiveness that it results in an environment that's intimidating, hostile, or offensive.
Make it clear that the policy applies to all employees, whatever their position, as well as to outside contractors or vendors. The policy should spell out that violations are grounds for disciplinary actions against employees—and termination of services by outside contractors.
Adopting the policy is a good first step, but communities must go further to prevent liability for sexual harassment by employees or contractors. According to HUD, community owners and managers are subject to liability for sexual harassment by employees or agents—regardless of whether they knew about it or were negligent in failing to prevent it from occurring. For example, HUD says that if an apartment manager authorizes a maintenance worker to enter a resident's home to make a repair, and the maintenance worker sexually harasses the resident, then the management company would be legally responsible for the discriminatory actions of the maintenance worker.
To reduce the risk of improper conduct—or false accusations of improper conduct—by your maintenance staff or outside contractors, maintain and follow written policies and procedures regarding when maintenance and repair work is performed—particularly inside occupied units. Among other things, guidelines for maintenance workers could include:
Have proper identification, such as a work shirt or badge, while on the job;
Enter units only for scheduled repairs or maintenance or in case of emergency;
Give reasonable notice before repair or maintenance visits;
If the resident is home, don't enter the unit unless the resident lets you in;
Except in case of emergency, do not enter a unit if any child under the age of 18 is home without the presence of a parent or other adult;
Treat all residents the same;
Don't fraternize with residents;
Respect residents' privacy; and
Don't allow yourself to be in a compromising position.
Rule #5: Carefully Select and Monitor Outside Contractors
Since owners and managers may be held responsible for fair housing violations committed by vendors or contractors, it's important to exercise due diligence in selecting outside contractors to perform services at your community.
Among other things, check out the company's references and reputation—not only for quality workmanship, but also for its workers' professionalism on the job. Ask about how the company screens employees—for example, whether it performs drug testing or criminal background checks, if permitted. Determine whether the company provides basic fair housing training to employees and how it supervises employees working on job sites.
Once you've selected a contractor, give him a copy of your community's fair housing policy—particularly your policy banning sexual harassment—and make sure that a staff member explains the policy before the contractor starts working at your community. Take steps to monitor the contractor's activities while working on your premises—particularly while performing services inside occupied units.
COACH'S TIP: To protect your community from liability from discriminatory conduct by contractors, legal experts advise that two legal documents should be signed before you hire them to perform services at your community:
An acknowledgement that the contractor understands your community's fair housing policies and the consequences of its failure to abide by those policies; and
An indemnification agreement that requires the contractor to repay you for any legal expenses or damages you must pay because of its violation of fair housing laws.
Rule #6: Keep Good Records to Fend Off Fair Housing Claims
Good record keeping is essential to help prevent—and defend against—any fair housing complaints with respect to how your community handles maintenance and repair requests.
Make sure that that you maintain written policies and procedures for handling maintenance requests, including whom to call, what happens outside non-business hours, what to do in case of emergency, what kinds of problems qualify as emergencies, and the like. Make sure to give a copy of the policies and explain them to all new residents, and review them again at renewal.
Keep records about each request for maintenance and service—including time and date; full contact information for the person making the request; who is assigned to do the work and when; when and how it was completed; the reasons for any delays, such as the need to order a replacement part; and any other relevant information.
Moreover, fully document any complaints about maintenance services and what the community did to resolve the problem. This is particularly important if there's any suggestion that a complaint about maintenance services seems related to a fair housing matter. Examples include a resident who complains that she received inadequate service because of her race or complains about inappropriate sexual comments or conduct by members of your maintenance or landscaping crew.
Since disability discrimination is the leading source of fair housing complaints, it's essential to keep good records about any requests for reasonable modifications and maintenance-related requests for reasonable accommodations. Fully document your efforts to resolve any questions about request, such as whether the resident (or person associated with him) qualifies as an individual with a disability under the FHA and whether there's a disability-related need for the requested accommodation or modification.
Moreover, documentation is key to protecting yourself from retaliation claims if disputes arise over disability-related maintenance requests. If a community decides not to renew the resident's lease, for example, it's essential to adequately document the legitimate, nondiscriminatory reasons for the decision to dispel any notion that it's connected to any protected activity under fair housing law.
Example: The federal court in Colorado refused the request of a resident with an alleged disability to intervene in proceedings to require her to vacate her unit at the expiration of her lease.
According to her complaint, the resident repeatedly complained about the insufficiency of handicapped parking and other problems related to the condition of the premises. She claimed that the result of her complaints led to a deterioration in her relationship with the community, such that she was singled out for adverse treatment by the community and its staff on the basis of her disability.
At the expiration of her lease, the community served her with a notice to vacate, but she filed a lawsuit in federal court, claiming to be the victim of unlawful retaliation. The court denied her request to halt the proceedings to evict her, ruling that the lease had expired by its terms and the community had no legal obligation to extend it.
The court also rejected her claim that the community's refusal to renew her lease amounted to unlawful retaliation. Even assuming that her complaints about snow removal in the parking lot amounted to a protected activity, the court ruled that the community had a legitimate nonretaliatory reason to justify the nonrenewal. The community presented evidence that the resident repeatedly called its answering service in the middle of the night, demanding that a community representative call her back immediately. As a result of her demands, the answering service called the property manager at an unreasonable nonbusiness hour. When he called back, the resident allegedly spoke to him in a hostile tone and manner. Siding with the community, the court concluded that that it was the manner of her complaints—and not the content of the complaints themselves—that prompted the community not to renew her lease.
Furthermore, the court ruled that the resident failed to prove that the community's stated reason for not renewing her lease was merely an excuse to cover up unlawful retaliation. She admitted that she was experiencing insomnia and called the answering service in the middle of the night to complain about snow removal. She also admitted that she received a return call from the property manager, and she didn't dispute his characterization of the tone or manner of her discussions [Watts v. Karmichael Family, LLC, April 2007].
Fair Housing Act: 42 USC §3601 et seq.
HUD guidance: Reasonable Accommodations Under the Fair Housing Act, www.hud.gov/offices/fheo/library/huddojstatement.pdf.
HUD guidance: Reasonable Modifications Under the Fair Housing Act, www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf.
Questions and Answers on Sexual Harassment Under the Fair Housing Act, www.hud.gov/content/releases/q-and-a-111708.pdf.
Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.
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|May 2012 Coach's Quiz|