Make Everyone Feel at Home During the Holidays

This month’s lesson tackles some fair housing questions that always crop up this time of year. Every holiday season, it seems, there’s a story about disputes over nativity scenes and other religious displays in town squares or public buildings.

It can be a touchy subject, but housing providers must abide by fair housing law, which bans discrimination based on religion. There are some pitfalls to avoid, but you don’t have to be a “Grinch” by ignoring the holidays or outlawing seasonal decorations out of fear of a discrimination complaint. In fact, you can stir up trouble by taking a hard line against holiday displays.

Example: Last Christmas, the owners of a California senior living community came under fire after allegedly ordering management to remove Christmas trees and menorahs from the common areas in all its residential living facilities, according to an online news report. Allegedly, the manager told the residents that the Christmas tree had to come down because it was a “religious symbol.” The story came to the attention of a civil rights organization, which called it “blatant discrimination on the basis of religion.”

The key is to celebrate the general festivity of the season without promoting a particular religion or particular religious holiday. In that way, you’ll satisfy fair housing concerns by showing that your community welcomes everyone—regardless of his or her religious practices or beliefs.

Prospects, applicants, and residents may adhere to a wide variety of religious and spiritual beliefs and practices. Of course, they are likely to include members of the nation’s three major religions—Christianity, Judaism, and Islam—but some may hail from other religious traditions.

For example, the growing number of Asian Americans has fueled the growth of non-Abrahamic faiths in the United States, particularly Buddhism and Hinduism, according to a July 2012 report by the Pew Research Center’s Religion & Public Life Project. The researchers reported that together, Buddhists and Hindus now account for the same share of the U.S. population as Jews (at 2 percent). Others are Sikhs, Jains, or followers of numerous other faiths, though researchers noted that most Asian Americans belong to the country’s two largest religious groups: Christians and people who say they have no particular religious affiliation.

In fact, the past few years have seen a rapid rise in the number of people who don’t identify with any particular religion. In a separate study released in October 2012, Pew researchers reported that one-fifth of the U.S. public—and a third of adults under 30—were religiously unaffiliated. In the past five years alone, the unaffiliated have increased from just over 15 percent to nearly 20 percent of all U.S. adults, according to the report. Their ranks include more than 13 million self-described atheists and agnostics, but many of the country’s 46 million unaffiliated adults are religious or spiritual in some way—for example, more than two-thirds say they believe in God.

In this lesson, we’ll review the law and offer seven rules to point out potential fair housing problems that could arise during the holiday season. 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 based on a number of characteristics, including religion. Among other things, it’s unlawful to:

• Deny housing to anyone because of his or her religion;
• Steer or discourage anyone from living in your community because of his or her religion;
• Charge higher rent or impose different terms or conditions because of someone’s religion;
• Harass or retaliate against anyone because of his or her religion; or
• Make statements—oral or written—that indicate a preference for or against anyone because of his or her religion.

Taken together, these provisions prohibit communities from treating people differently based on their religious beliefs or practices. For example, you can’t show favoritism toward those who share your religious beliefs—or bias against those of other religious faiths.

Fair housing law protects individuals who adhere to a particular religion or to no religion at all. The FHA doesn’t define “religion,” but fair housing experts believe it’s broad enough to prohibit discrimination against individuals who aren’t affiliated with a particular religion or don’t ascribe to particular religious beliefs. Treating people differently simply because they do—or do not—attend religious services or identify with a religious faith could lead to fair housing trouble.

Example: In September 2009, an insurance company agreed to pay nearly $75,000 to settle an FHA discrimination claim based on religion for allegedly offering special benefits and discounts to “churchgoers” and “persons of faith.” Allegedly, the company offered the special endorsement in at least 19 states and used an application form that included a space for applicants to indicate their “denomination.” The company agreed to pay $29,500 to three victims of discrimination, plus a $45,000 civil penalty. “Discrimination on the basis of someone’s religious faith is prohibited by the Fair Housing Act,” said Loretta King, Acting Assistant Attorney General for the Civil Rights Division [U.S. v. GuideOne Mutual Insurance Co., Kentucky, September 2009].

When it comes time for the holidays, it’s also important to remember the FHA’s ban on discriminatory statements. Under the FHA, it’s unlawful to make, print, or publish any notice, statement, or advertisement that indicates any preference, limitation, or discrimination based race, color, religion, sex, handicap, familial status, or national origin. That means you can’t use “words, phrases, photographs, illustrations, symbols, or forms” that convey that dwellings are—or are not—available to particular groups because of their religion or other protected characteristic, according to HUD.

You’re probably aware that these provisions apply to discriminatory advertising, but HUD says they cover all statements, both oral and written, including flyers, brochures, signs, banners, posters, and any other documents used with respect to rental property. That includes what you say to applicants and residents in greetings and during visits and everyday interactions, as well as what you write, print, or display in emails, notices, posters, and decorations at your community.

And remember: The law doesn’t require proof of discriminatory intent to establish liability for making discriminatory statements. Instead, the focus is on whether the statement would suggest an unlawful preference to an “ordinary reader or listener.”

You may not intend to discriminate against anyone when you’re putting up your holiday decorations, but if they include only Christmas displays—with nothing to recognize any other holidays—it could give the impression that your community favors Christians—or disfavors those of other religious faiths.

7 RULES FOR MAKING EVERYONE FEEL AT HOME FOR THE HOLIDAYS

Rule #1: Make Residents and Prospects Feel Welcome

At the holidays—indeed every time of the year—it’s important to make all prospects, applicants, and residents feel welcome, regardless of their religious beliefs or practices.

As communities have become more religiously and culturally diverse, your residents may celebrate a variety of religious holidays at this time of the year. Many celebrate Christmas or Hanukkah, while others may observe religious holidays that may be unfamiliar to you. Some celebrate cultural or spiritual occasions, such as Kwanzaa and the winter solstice, while others don’t celebrate any holidays based on their religious or spiritual beliefs. Regardless of whether or how they celebrate the holidays, all are protected from discrimination under the FHA—and can’t be treated differently because of their beliefs or practices.

That doesn’t mean that you can’t celebrate the holidays for fear of a discrimination claim. There’s nothing wrong with decorations and festivities to mark the holiday season, as long as they don’t appear to be promoting a particular religion or religious holiday. It’s unlawful to express a preference for—or against—anyone based on religion, so celebrating only one religious holiday—to the exclusion of others—could lead to a fair housing problem.

For example, fair housing experts warn against focusing solely on Christmas, even if most of your residents are Christian. By excluding non-Christian religious holidays, you could be accused of expressing a preference for Christian religions over others. Doing so risks offending your Jewish or Muslim residents, as well as those who adhere to other faiths or spiritual beliefs.

Rule #2: Aim for Inclusiveness in Your Holiday Decorations

During the holiday season, many communities decorate the leasing office and common areas with public access with lights, signs, and displays. There’s no harm in trying to make your community as festive as possible during the holiday season, as long as you don’t send the message that anyone is unwelcome because of their religious beliefs.

You can’t go wrong with secular messages, such as “Season’s Greetings” or “Happy Holidays,” and seasonal displays featuring lights, evergreens, icicles, and snowflakes. You can even include pictures of Santa Claus and signs that say “Merry Christmas,” which have been recognized by HUD as secularized terms and symbols that don’t violate fair housing law.

There’s no official word from HUD on other types of decorations, so it’s sometimes hard to know where to draw the line between secular and religious symbols. Despite some conflicting decisions, courts generally have found that nativity scenes are religious, while Christmas trees and menorahs are not. Consequently, fair housing experts warn communities against putting up nativity scenes and other displays steeped in religious tradition (such as a crucifix at Easter).

Opinions are mixed with respect to menorahs and Christmas trees. Some fair housing experts say that communities should avoid using them and any other decorations with religious connotations when decorating common areas. Others suggest calling it a “holiday tree” and decorating it with seasonal, nonreligious lights and ornaments. Still others say menorahs and Christmas trees have become secularized—like “Merry Christmas” and Santa Claus—so it’s fine for communities to include them among other holiday decorations with other nonreligious, seasonal themes.

TIME OUT!

HUD: Religious Tolerance More Important Than Ever

In a 2001 memo—issued months after the 9/11 terrorist attacks—then HUD Secretary Mel Martinez emphasized the importance of religious tolerance, noting that it was more important than ever “to support the celebration of diverse traditions and the joy of fellowship that comes with the holiday season.”

In response to questions about religious symbols and displays in public housing, he stated: “It is not this Department’s policy to discriminate against people of faith by barring the use of religious symbols to celebrate faith-based events, nor is it a result of HUD policy.”

Stressing the First Amendment right to the free exercise of religion, he stated: “HUD’s policy, which follows prevailing case law, is that religious displays as well as non-religious displays are permissible in common areas of public housing sites, and the same opportunity must be made available to people of all religious faiths.”

Rule #3: Use Nonreligious Language in Communications

The holidays are often a time of special greetings, but fair housing experts recommend using neutral language when communicating with prospects or residents by phone, in emails, or in person. Though HUD says you won’t get into fair housing trouble by saying “Merry Christmas,” fair housing experts suggest it’s better to use neutral phrases like “Happy Holidays” to welcome people of all faiths to your community.

Also, avoid using religious language, symbols, and graphics in communications with residents, such as notices and flyers, or on your Web site. It’s fine to use pictures of snowmen or Santa Claus, but avoid using pictures of nativity scenes and other religious symbols. Fair housing experts also warn against listing religious information, such as a schedule of local religious services or events held by local religious organizations.

By the same token, you should avoid religious references when posting ads for vacancies during the holiday season. Fair housing law prohibits communities from trying to attract people of certain religions through advertising—for example, by describing the community as “a short stroll from St. Mark’s Church, which has a lovely Christmas Eve Mass.”

Rule #4: Keep Community Festivities Religion-Neutral

Many communities hold parties and other special events during the holidays. While such events are a great amenity for your residents, make sure that the events aren’t religious or used to promote a particular holiday. Fair housing experts warn against calling it a Christmas party or playing Christmas carols with religious themes.

Instead, keep the celebration neutral by calling it a holiday party or winter celebration and playing music celebrating winter themes. Invite all residents, regardless of their religious affiliations. Make sure residents know all are welcome, but avoid any impression that they must attend holiday events.

Rule #5: Allow Equal Access to Your Common Areas

Some communities allow residents to use the community’s common room for family parties and similar functions. If you allow residents to reserve the room for various types of activities, then you must make it available to residents regardless of whether they want to use it for secular or religious purposes. It’s unlawful for communities to allow residents to reserve the room for card games and other social events, but to deny it to a resident who wants to use the room for a prayer meeting, according to the Justice Department.

And all residents must have equal opportunity to use the room, regardless of their religious or cultural background. If you permit a resident to hold a Christmas party in the room, you must allow a Jewish resident to use the room for a Hanukkah party. And if several African-American residents want to use the room for a Kwanzaa party, you must let them do so. Otherwise, you could be accused of racial discrimination.

Rule #6: Allow Residents to Display Religious Decorations in Their Units

Most of our fair housing experts warn against allowing residents to decorate lobbies, hallways, and other common areas, since it’s up to the community to maintain them in a religiously neutral manner. But inside units, our experts say that residents should be allowed to display holiday decorations, including personal religious items, as long as they are in keeping with community rules. (Some communities, for example, ban the use of live Christmas trees due to fire safety concerns.)

But it can get more complicated when dealing with holiday decorations in other areas—such as the unit’s front door and unit interiors that are visible from outside, such as windows, patios, and balconies. As a general rule, communities have the right to enforce rules related to the appearance of those areas, but the rules must apply consistently to religious and secular objects alike. Some communities allow residents to hang religious decorations on their front doors and windows, while others have rules banning decorations of any kind in outdoor areas.

For the most part, courts have rejected discrimination claims by residents who are denied an opportunity to display religious items outside their units. Although fair housing law requires accommodation of disabilities, courts have ruled that the FHA doesn’t require communities to make exceptions to their rules to accommodate religious beliefs and practices. Nevertheless, you should check applicable local laws. Some municipalities, such as Baltimore, Md., have adopted measures to ban multifamily housing managers from denying any reasonable accommodation for residents’ religious practices.

While taking a hard line against any outside decorations whatsoever may be effective, it could also trigger a complaint that the community is interfering with a resident’s religious rights. It’s far from settled law, but a resident may argue that enforcement of such a seemingly neutral rule has a discriminatory effect on residents who want to observe religious practices.

Example: In 2005, a Connecticut community settled accusations of religious discrimination against an Orthodox Jewish couple who erected a temporary structure on their condominium balcony in observance of their religious practices, according to a news report. The structure, known as a “sukkah,” is a temporary shelter used for eight to 12 days in October to mark “Sukkoth”—a significant holiday on the Jewish calendar. For several years, the couple said they erected the structure, but each time the property manager allegedly assessed fines and ordered it removed for violating condo bylaws regarding outside decorations. The couple filed a fair housing complaint, arguing that enforcement of the rules had a disparate effect on Jewish residents who commemorate the Sukkoth holiday. Eventually, the parties agreed to a settlement, with payments of $10,000 to the couple and $17,500 to their attorney, as well as rule changes to permit the placement of a sukkah on a condo unit’s patio or balcony in observance of the holiday.

Whatever your policy, it’s important to enforce the rules uniformly and without discriminatory intent. Otherwise, you could face a fair housing claim for religious discrimination.

Example: In 2009, a federal court ruled that a Chicago condo board could be liable for religious discrimination for repeatedly removing a religious object—a mezuzah—from a resident’s doorway. The resident, who’s Jewish, alleged that she was required by her religious beliefs to affix a mezuzah (a small piece of parchment containing religious texts, which is rolled up and placed in a casing) to the hallway side of the doorpost of her unit. For many years, the condominium rules prohibited placement of any objects in common areas, but the dispute arose after the board began to apply the rules to religious objects, including the resident’s mezuzah.

Initially, a court sided with the condo board, ruling that the FHA didn’t apply to alleged discrimination after the condo owner acquired possession of the unit. But the court later reversed to find that the resident could pursue claims that the condo board intentionally discriminated against her by reinterpreting its hallway rules to apply to mezuzot because of her religion [Bloch v. Frischholz, November 2009].

As an alternative to a blanket rule banning any outside decorations, communities may permit residents to put up decorations related to holidays and other occasions—both religious and secular—on the doors and windows of their units, or on outdoor patios and decks, subject to size and space limitations. In that case, it’s not a bad idea to impose time limits, requiring removal of the items within a certain period after the related event.

Rule #7: Promptly Address Complaints of Religious Discrimination, Harassment

Head off potential fair housing problems by addressing the situation promptly if residents ignore your rules or get into disputes with neighbors over religious decorations.

If residents complain of religious discrimination based on the enforcement of your rules, it’s best to review the situation, with your attorney if necessary, in an attempt to resolve the matter informally. Taking a hard line against the resident—by imposing fines or removing the offending items yourself—could lead to claims of religious harassment.

And promptly address disputes among neighbors who may object to a resident’s holiday decorations. It’s important to investigate and act swiftly to resolve problems to avoid accusations of tolerating religious discrimination at your community.

• Fair Housing Act: 42 USC §3601 et seq.
• HUD letter, Mel Martinez, Dec. 20, 2001: www.hud.gov/offices/fheo/library/theletter.pdf.
• HUD memo, Roberta Achtenberg, Guidance Regarding Advertisements Under §804(c) of the Fair Housing Act, Jan. 9, 1995: www.hud.gov/offices/fheo/library/sect804achtenberg.pdf.

COACH Sources

Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

Shirley Robertson, CPM, ARM, Adv RAM, CLP: Director, Equal Housing Opportunity & ADA, Southern Management Corp., 1950 Old Gallows Rd., Suite 600, Vienna, VA 22182; (703) 902-9423; workshopsbyshirley@verizon.net.

Anne Sadovsky, CSP: Anne Sadovsky & Co., Dallas, TX; (866) 905-9300; anne@annesadovsky.com.

Kathelene Williams, Esq.: The Law Firm of Williams & Edelstein, P.C., 7742 Spalding Dr., Ste. 478, Norcross, GA 30092; (770) 840-8483; kathi@fairhouse.net.