How to Prevent Housing Discrimination Claims Based on Race or Color

In this month’s lesson, the Coach focuses on the rules banning housing discrimination based on race and color.

The fight against racial discrimination and segregation was one of the main reasons that the federal Fair Housing Act was passed nearly 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.”

Now, 50 years later, the number of complaints of race discrimination, which once held the top spot, has steadily declined, accounting for roughly a quarter of HUD complaints, according to the most recent figures. Meanwhile, much of the focus has shifted to disability discrimination, which now accounts for more than half of all formal fair housing complaints filed with HUD.

Some see the declining number of race discrimination complaints as a sign of progress to achieve equal housing opportunities regardless of race. They say there is now widespread recognition that racial discrimination of any kind cannot be the basis of the decision to lease or not lease rental housing.

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, they believe racial discrimination has simply gone underground, replaced by more subtle forms of discrimination that are more difficult to detect. Despite the declining number of formal complaints alleging racial discrimination, they believe that most cases of housing discrimination are simply not reported.

Whatever your point of view, the recent events in Charlottesville, Va., and elsewhere make it clear that racial discrimination continues to be a factor in American life. With tensions running so high, it’s up to you to make sure that everyone is welcome at your community, regardless of his or her race, color, or any other characteristics protected under fair housing law.

In this lesson, we’re going to review fair housing requirements and offer seven rules to help you avoid fair housing trouble based on race or color. 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 discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability.

The FHA outlaws various housing practices that either exclude or discriminate against prospects, applicants, residents, or their guests, based on race, color, and other protected characteristics. One key provision makes it unlawful to refuse to rent, negotiate, or otherwise make housing unavailable to anyone based on his race or color. Another bans discrimination against anyone in the terms, conditions, privileges, services, or facilities because of race or other protected characteristics. Other provisions ban discriminatory advertising and retaliation against anyone who complains about discrimination.

The FHA bans discrimination based on both race and color, two separate but closely related characteristics. Race generally refers to a person’s physical appearance, while color refers to a characteristic of a person’s race. Fair housing expert Professor F. Willis Caruso explains that when we try to define what we think race means, it includes things like color, light or dark, facial construction, our perception of “where they came from,” and maybe what we think is “their religion.” The law lists both race and color to cast a broad net to protect people from discrimination, whether they’re black, Hispanic, Asian, South Asian, Middle Eastern, or from other racial or ethnic groups.

Depending on the circumstances, discrimination claims based on race and color may be coupled with claims based on national origin or religion. For example, a discrimination complaint by an Hispanic applicant may be based on national origin as well as race or color. Likewise, an applicant of Asian or Middle Eastern descent could add race or color to a discrimination complaint based on national origin or religion.

Furthermore, anyone who experiences discrimination because of race or color may pursue a fair housing claim—whether or not he’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.

7 RULES FOR PREVENTING DISCRIMINATION CLAIMS

BASED ON RACE OR COLOR

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. The FHA bans refusing to rent or making housing unavailable to anyone based on his race—or that of his household members or anyone associated with them. It’s also unlawful to provide inaccurate or untrue information about the availability of units for discriminatory reasons, so you may not deny a visit to the rental property by telling a prospect that an available unit has been rented already, or limit information about suitably or comparably priced available units, because of his race or other protected characteristic.

Fair housing organizations are sending out testers to check for subtle signs of race discrimination—such as any inkling that prospects are being given incorrect information about unit availability—or are being quoted higher rent charges or less favorable rental terms—based on their race.

Example: In June 2017, the owners and operators of a 60-unit rental housing community in Brooklyn agreed to pay $107,500 to resolve a fair housing case alleging discrimination against African-American prospects on the basis of race. The complaint, filed by the Fair Housing Justice Center, alleged that its five-month testing investigation revealed that white testers were told about and shown available apartments, but African-American testers were repeatedly given inaccurate information about apartment availabilities, quoted higher rents, and steered to other buildings. The defendants denied the allegations, but agreed to a four-year settlement that includes adoption of a fair housing policy, fair housing training, and recordkeeping requirements.

Example: In February 2016, the owners and managers of a community on Long Island, N.Y., agreed to pay $230,000 to settle allegations of race discrimination based on the results of fair housing testing, which allegedly showed marked significant discrepancies between the ways that African-American and white testers, posing as prospects, were treated. The complaint alleged that a manager discouraged African Americans from renting at the community by misrepresenting the availability of units, not showing available units, or misrepresenting the dates when units were available to rent. The owners and managers denied the allegations.

Fair housing testing conducted by the Justice Department in the past few years into practices at mobile home communities resulted in similar findings, leading to lawsuits—and hefty settlements—to resolve alleged racial discrimination against African-American prospects.

Example: In December 2016, a Florida mobile home park agreed to pay $35,000 to resolve allegations that managers falsely told African Americans that no mobile homes, or fewer mobile homes, were immediately available for sale, but told similarly situated white persons that more mobile homes were available. The complaint also alleged that managers quoted higher prices and worse financial terms to African-American prospects than to similarly situated white prospects.

Example: In February 2016, another Florida community agreed to a $40,000 settlement to resolve allegations that African-American testers were falsely told that no rentals were immediately available for rent, but white testers were told that they were, in fact, available for rent. The complaint alleged that the owner encouraged white prospects and discouraged African Americans from living there by, for example, referring African Americans to another community, making discouraging comments about units that were available for rent, and failing to provide African Americans complete and accurate information about available units and lots.

Example: In December 2015, a third Florida mobile home park agreed to pay $60,000 to resolve allegations that its former manager refused to rent recreational vehicle lots to African Americans by falsely telling them that no lots were available or that there was a waiting list, and discouraged them from making future inquiries at the park.

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.

Example: In February 2016, a court refused to dismiss a fair housing case filed by an African-American prospect, who alleged that the owners and managers of a Georgia community denied his application and subjected him to different application standards because of his race. The prospect claimed that when he initially expressed interest in renting a unit, he was told to fill out an application and submit either two paystubs, a bank statement, or the summary page of his tax return. According to the prospect, he submitted the application, along with a bank statement and his driver’s license, but a manager requested further documentation, including two recent paystubs or the previous year’s tax return. The prospect said he submitted both, but she later requested his full tax return.

The prospect protested, saying he already submitted all the information required by the application, so he wanted either an approval or a denial—and the reasons for the decision. In her response, the manager allegedly said his application was denied because they didn’t have a clear copy of his driver’s license and they were unable to verify his income without a complete tax return.

The prospect said he persisted, asking why the extra documents were required and if all applicants were required to submit the same. According to the prospect, the manager said that extra documentation was needed at times, but when he asked for an explanation, she said she would close out his application if he wouldn’t provide the additional information. Believing that the denial was based on his race, the prospect said he would take the necessary steps to protect his rights.

Ultimately, the prospect said that he submitted his tax return and the owner approved his application, but by then it was too late—he had already signed a new lease at a higher rent. He sued, accusing the owner and managers of race discrimination.

The court denied the owner’s request to dismiss the case, ruling that the prospect could pursue his claim that the community initially rejected his application and imposed more onerous application requirements on him based on his race. The owner protested that he ultimately approved the application, but the owner’s subsequent approval did not negate the prior denial of the prospect’s application [Lowman v. Platinum Property Management Services Inc., February 2016].

To ward off discrimination claims, adopt racially neutral policies, procedures, and qualification standards for leasing units in the community. Be sure to keep good records to show that you followed the policies consistently and fairly, without regard to the applicant’s race, color, or any other protected characteristic.

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 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 July 2017, the owner and operator of a 224-unit community in Massachusetts agreed to pay up to $70,000 to resolve allegations of unlawful steering based on race and national origin. In its complaint, the Justice Department alleged that the community discriminated against persons of South Asian descent by steering them to certain buildings in the eight-building complex from at least 2009 through 2014. Under the terms of the settlement, the community agreed to establish a $70,000 settlement fund to compensate those affected by the alleged discriminatory practices.

Example: In October 2016, a Louisiana housing authority agreed to pay $120,000 and adopt new policies to settle a lawsuit alleging discrimination based on race and disability under fair housing law. In its complaint, the Justice Department alleged that from 2007 to 2014, the housing authority assigned elderly residents to housing on the basis of race, rather than by their place on the waiting list, and restricted residents with disabilities primarily to one of its seven apartment complexes. Allegedly, white elderly residents were assigned to one of two complexes that were reserved for elderly persons, but African-American elderly residents were assigned to one of its other five complexes, all of which were at least 90 percent African-American. The complaint also alleged that the housing authority primarily assigned residents with disabilities to one complex and did not consider them for vacancies at its six other properties.

Fair housing law outlaws even subtle hints that a prospect should go elsewhere or live in a certain section of your community because of her race or color—or any other protected characteristic, says fair housing attorney Robin Hein. Under HUD regulations, examples of unlawful steering include:

• 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 would not 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.

To avoid fair housing trouble, you must let prospects make their own decisions about where to live after you’ve shown them all available units that meet their needs, regardless of who lives in that part of the community.

Rule #4: Reject Applications for Valid, Nondiscriminatory Reasons

Your community has the right to reject an application that does not meet your community’s screening criteria, even if the prospect is a member of a protected class. If your screening criteria are reasonable and you apply them consistently, then you may reject prospects—regardless of race or color—who don’t meet those criteria without getting into fair housing trouble. 

Example: In August 2017, the federal appeals court upheld a ruling in favor of a Michigan community, which successfully fought off allegations of discrimination based on race and disability filed by an African-American applicant with a disability.

In earlier proceedings, a judge found in favor of the community based on evidence that the community denied his application because of his poor credit and criminal history, particularly an armed robbery conviction. The community also showed that 20 of its 45 units were rented to African Americans, three of whom had disabilities.

The appeals court affirmed, ruling that the applicant failed to overcome the community’s proof of legitimate, nondiscriminatory reasons to deny his application. He didn’t dispute that his poor credit and armed robbery conviction were adequate reasons for the denial and he failed to show this was just an excuse to cover up unlawful discrimination [Clark v. Lafayette Place Lofts, August 2017].

Failure to apply screening criteria consistently is a sure way to trigger a fair housing complaint. If your resident selection plan requires you to run credit checks on all prospects, don’t overlook those checks for some prospects because you know the applicant or you think you have enough information to make a decision without it.

If you are accused of race discrimination, your community will have to demonstrate a legitimate, nondiscriminatory reason for denying the application. Be sure to follow your standard practices and keep good records, so you’ll have the proof you need to counter any accusations that your explanation was merely an excuse to cover up race discrimination.

Rule #5: Update 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’s new 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.

Last year, HUD issued new guidance on how federal fair housing law applies to the use of criminal records in both conventional and 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 new HUD guidance does not prevent communities from screening applicants based on their criminal history, but communities could face liability under fair housing law if their criminal history policy, without justification, has a disparate impact—or discriminatory effect—on minority applicants.

It may take some time to get your policy in shape, but there are some things that you should do right away to avoid triggering a complaint—or unwanted attention from anyone on the lookout for the next test case. Start by asking yourself these questions:

• Does your policy still consider arrest records in criminal background screenings? If so, you’ll need to 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.
• Does your policy still have “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. For help, consult with your attorney, screening company, and local apartment association.
• Does your policy allow 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.

Editor’s Note: Last year, the Coach reviewed HUD’s new guidelines in depth, along with recommendations from our experts on how to comply with the new requirements. Check out the June 2016 issue, “Q&A on HUD’s New Guidance on Criminal Background Checks,” and the Special Issue, “Conducting Criminal Background Checks: Further FAQs & Follow-up,” available on our website at www.FairHousingCoach.com.

Rule #6: Prevent Personal Biases from Derailing Fair Housing Efforts

In today’s divisive climate, it’s essential to focus on employee hiring, training, and supervision to keep the current political debate about race, immigration, and other hotly contested topics from affecting how your staff treats African Americans, Hispanics, and other racial and ethnic minorities.

Since problems can often be traced to attitudes toward cultural differences, as opposed to racial differences, fair housing expert Doug Chasick says that it’s essential to hire people who are welcoming, flexible, and embrace change—since diversity is change. When interviewing prospective employees, you should be evaluating not only their acceptance of protected classes, but also their acceptance of things in general. Since it’s unlikely that you’ll hear any overt signs of racism, you should listen closely for any clues, hints, or code words that suggest any bias against anyone based on race, national origin, or any other protected class.

Train and regularly retrain all employees—from your leasing agents to maintenance staff, and everyone in between—to treat everyone in the same professional manner, without regard to race, color, or other protected class. Such basic “people skills” are a key component to preventing fair housing complaints, according to fair housing experts, who say that more people file complaints because of the way they are spoken to or treated than they do as a result of actual discrimination. 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.

Proper supervision is essential because even the best training won’t protect your community from fair housing problems if an employee’s political opinions or personal biases are allowed to spill into the leasing office or elsewhere in the community. Take it seriously if you hear that employees are making offensive or inappropriate comments in the workplace. Depending on the circumstances, even a single racial remark could trigger a discrimination complaint.

Example: In July 2017, a federal appeals court ruled that a single racial slur from a supervisor could be enough to allow two African-American workers to pursue employment discrimination claims based on race. The workers claimed that the supervisor used a racially charged slur in front of them and their non-African-American coworkers, accompanied by threats of termination, which ultimately occurred. The court ruled that this amounted to severe conduct that could create a hostile work environment. Though this was an employment discrimination case, courts often rely on such cases when evaluating housing discrimination claims [Castleberry v. STI Group, July 2017].

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 are not welcome at your community. Though not unlawful in itself, that perception may be enough to trigger someone to suspect that any adverse action—the denial of his application, for example—was motivated by racial bias.

Rule #7: Maintain a Zero-Tolerance Policy on Harassment

Establish a zero-tolerance policy that bars anyone—including your residents—from harassing their neighbors or their neighbor’s guests based on their race, color, or other protected characteristics.

Fair housing law bans intimidating, threatening, or interfering with anyone exercising his fair housing rights. If racial disputes erupt between neighbors, Hein says that communities have an obligation to investigate and to intervene since a community may be held accountable if it knew that a neighbor was harassing a resident for discriminatory reasons, but did nothing to stop it.

In the aftermath of the violence in Charlottesville and elsewhere in the nation, it’s important to be vigilant for any signs of racially motivated harassment, discrimination, or violence among residents. It’s nothing new, but the National Fair Housing Alliance (NFHA) said that 2016 was notable for an increase in housing-related hate activity. Since the fall of 2016, the NFHA said there has been an uptick of hate crimes involving people who were harassed in their neighborhoods or at their apartments, university dormitories, or homes.

Example: In August 2017, two Florida men were sentenced to prison after pleading guilty to civil rights violations for their roles in attacking and intimidating an interracial couple, according to the Justice Department. A third man was imprisoned after pleading to the same charges last year; a fourth is now deceased.

The case dates back to September 2012, when an interracial couple moved in next door to two of the men, who began to regularly harass the African-American male neighbor with racial slurs and derogatory statements. A few weeks later, one of them assaulted him, while the other prevented a neighbor from intervening. On Halloween night, the men made a plan to intimidate the couple into moving from their residence by burning a cross in their front yard. With help from the other defendants, the men constructed a wooden cross, poured gasoline on it, and carried it to the victims’ front yard, leaned it on their mailbox, and set it on fire.

“Acts of intimidation and violence perpetrated against people because of their race, ethnicity, color, or creed are reprehensible,” Acting U.S. Attorney Stephen Muldrow said in a statement. “Individuals and families should have the right to live wherever they choose, without fear. Acts of hatred such as this simply cannot be tolerated and we will investigate and prosecute those who commit these crimes.”

Coach’s Tip: Last year, HUD adopted final regulations on fair housing protections for victims of harassment based on race, color, religion, national origin, sex, familial status, or disability. The new rules make it clear that fair housing law bans not only sexual harassment, but also harassment based on race, color, and any other protected characteristics. The new rules also clarify when housing providers and others may be held liable under fair housing law for illegal harassment or other discriminatory housing practices.

• Fair Housing Act: 42 USC §3601 et seq.

Coach Sources

F. Willis Caruso, Esq.: Professor Emeritus, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 South Plymouth Court, Suite CBA-800, Chicago, IL 60604; (312) 543-3122; 6Caruso@jmls.edu.

Douglas D. Chasick, CPM, CAPS, CAS, ADV. RAM, CLP, SLE, CDEI: President, The Fair Housing Institute, Inc.; Norcross, GA; (321) 956-2188; doug.chasick@fairhousinginstitute.com.

Avery S. Friedman, Esq.: Avery Friedman & Associates, 701 The City Club Building, 850 Euclid Avenue, Cleveland, OH 44114; (216) 621-9282; avery@lawfriedman.com.

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood & Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RHein@ApartmentLaw.com.