July 2021 Coach's Quiz

COACH’S ANSWERS & EXPLANATIONS

QUESTION #1

Correct answer: c

Reason: Rules #1 and #4 apply here:

Rule #1: Don’t Base Housing Decisions on a Person’s Language

Rule #4: Beware of Steering

The FHA ban on discrimination requires you to treat all people the same regardless of their race, national origin, etc. Your duty is to refrain from affording less favorable treatment to protected classes; what you’re not obligated to do is afford them more favorable treatment.

In this case, you have every right to reject the LEP applicant because of her poor rental history just as you would anybody else with such credentials. Being LEP doesn’t entitle the applicant to any special exemption. Bottom line: Rental history is a perfectly legitimate, nondiscriminatory basis for deciding whether to rent to particular applicants, as long as your criteria are fair, reasonable, consistently applied, and in no way based on English language skills. So, c. is the right answer.

Wrong answers explained:

a.            The reason a. is wrong is that a person’s accent is what HUD describes as “inextricably intertwined” with his or her national origin. To quote the HUD guidance: “It is thus inconceivable that a housing decision that treats someone differently because he or she speaks English fluently but with an accent is anything but intentional discrimination because of national origin.”  

b.            Refusing to rent to applicants on the basis of their “comfort” or “fit” with other residents is illegal steering to the extent your assessment is based on the applicant’s protected characteristic(s), including LEP. Remember that accent discrimination equals national origin discrimination.  

QUESTION #2

Correct answer: d

Reason: Rules #5 and #6 apply here:

Rule #5: Avoid English-Only and Other Language-Based Policies

Rule #6: Consider Less Discriminatory Alternatives

Even if we give the landlord the benefit of the doubt and assume it didn’t adopt the policy with the intent to discriminate, the English-only rule would still be discriminatory to the extent it has a disparate impact on LEP people, in this case members of the Latino community that form much of the area’s population. The landlord would then have to justify the policy as achieving a substantial, legitimate, and nondiscriminatory purpose. And even if it could do that, the policy could still be illegal if the plaintiff can show that the landlord could have achieved that purpose by doing something less discriminatory. For example, rather than instantly excluding LEP applicants, maybe the landlord could allow them to bring translators or even take the documents home so somebody who speaks fluent English can review them. Thus, d. is the right answer.  

Wrong answers explained:

a.            The reason a. is wrong is that LEP discrimination need not be intentional to run afoul of the FHA. Policies that appear neutral on their face may also cross the line if they have a disparate impact on people based on their national origin—even if that isn’t their intent. That is certainly the case with the landlord’s English-only policy in this scenario.

b.            This answer is wrong because English-only policies aren’t automatically illegal; however, they do automatically raise red flags of national origin discrimination. Courts or HUD tribunals reviewing such policies will check closely to determine if they’re just a pretext to discriminate intentionally against LEP persons; and even if that’s not the intent, the policy will still have to survive the rigorous disparate impact test we discussed above. And that’s a very tall order.  

c.             There are two reasons that c. is wrong. First, it’s far from obvious that the landlord’s English-only policy does serve a legitimate, nondiscriminatory purpose. In fact, the HUD guidance suggests that saving money and administrative hassle, which seem to be the landlord’s purposes in adopting the policy, generally don’t meet the substantial, legitimate, and nondiscriminatory purposes test. And even if they did, the policy would still be deemed discriminatory if it’s shown that the landlord could have accomplished the substantial, legitimate purposes in a way that was less discriminatory than adopting an English-only policy.