Personnel: Your First Line Of Defense Against Fair Housing Claims
This month, we are going to put the focus on your staff as your first line of defense against fair housing claims. The potential for a fair housing problem is inherent in the many ways your staff interacts with prospects, applicants, and residents—answering phone calls, marketing and showing units, evaluating rental applications, responding to accommodation requests, and performing maintenance work, to name a few.
You can minimize that risk by taking steps to enhance your staff's ability to understand and comply with fair housing law. Doing so will generally require a commitment of time and money, but those expenditures pale in comparison to the loss of time and money—not to mention disruption to your community—if you are hit with a fair housing complaint.
In this month's issue, we will give you six rules to help you evaluate, establish, and implement policies to ensure that your staff can present your best defense against fair housing problems. In the Legal Update (see p. 6), we'll review the ways in which employee training played a part in the resolution of some recent lawsuits. Finally, at the end of our lesson, you can take the Coach's Quiz to see how much you have learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bars you from refusing to rent to an applicant based on his or her race, color, national origin, sex, familial status, disability, or religion.
Though the FHA clearly bans housing discrimination against members of the protected classes, the ban is often difficult to put into practice. “Following the law may be difficult, particularly when it comes to requests for reasonable accommodations for disabled residents,” notes A.J. Johnson, a housing expert based in Williamsburg, Va. When conducting training sessions, Johnson says he always saves that topic for last because it generates at least half the questions from attendees.
Atlanta attorney Robin Hein agrees that dealing with accommodation requests is a big issue, noting that some 40 percent of fair housing complaints come from one protected class—the disabled. Nearly everyone who has had prior training will understand the basics of fair housing principles, Hein says, but requests for reasonable accommodation—particularly related to parking spaces—are among the most difficult problems to solve.
Although owners can establish policies and procedures to follow to comply with fair housing rules, it's the employees who are on the front lines, putting those policies and procedures into practice. If employees misunderstand your policies and procedures, do not receive adequate training, or do not know how to recognize and follow up on discrimination complaints, your community could lose a costly fair housing claim against it.
6 RULES FOR STAFF TO PROVIDE BEST DEFENSE AGAINST FAIR HOUSING CLAIMS
Rule #1: Ensure All Employees Receive Fair Housing Training
When you think about training, it's natural to focus on your leasing staff. However, it's important to include all staff—leasing consultants as well as office, maintenance, and housekeeping employees—says fair housing expert Anne Sadovsky. Fair housing trouble can arise from any employee who interacts with the public.
Just as there is no ideal approach to property management, there is no right way to provide employees with fair housing training. Owners have a number of options when it comes to where, when, and how often employees should receive training.
For example, owners can send their staff to off-site training or bring in a fair housing professional to conduct the training at the worksite. Training is also available through apartment associations as well as state and local fair housing enforcement agencies. In addition, notes Hein, an increasing number of owners are turning to online fair housing training providers.
Who should conduct training. Whether you choose on-site or outside training, the experts agree that the most important consideration is the trainer's qualifications. Attorneys, independent consultants, apartment associations, online providers, and enforcement agencies all offer training services, Hein notes, but the quality of the training depends on the qualifications of the trainer.
There is no national certification that a person can obtain to be considered a fair housing trainer, so Johnson advises owners to be careful when selecting who will conduct the training. HUD has a training program, but it's limited to civil rights professionals responsible for enforcing fair housing laws throughout the country, according to information on HUD's Web site.
In evaluating a fair housing professional's qualifications, look for someone who understands the law and is up to date on fair housing trends and court rulings, says Johnson. To find good training sources in your community's area, contact the state fair housing agency, your local apartment association, or other communities for a referral. Learn what you can about the trainer's reputation and get references, advises Johnson.
Some state fair housing agencies offer free training, Johnson says. In Virginia, for example, the Department of Professional and Occupational Regulation offers free quarterly fair housing seminars to residential property owners, managers, and leasing consultants, notes Johnson.
Regardless of the source, Hein says the quality of the training will vary depending on the trainer's skill level and approach. Hein advises owners to ask about the trainer's qualifications and how the trainer approaches fair housing issues. Don't assume that every trainer will give the same message, he warns.
What training should cover. A good training program should always cover the seven federally protected classes, according to Johnson. The training should also cover any additional protected classes applicable to that community, he says. For example, Massachusetts has 13 protected classes.
In addition to providing a basic understanding of the federal, state, and local fair housing laws, fair housing training should encourage your staff to think about and evaluate whether their actions and the community's policies could be seen as discriminatory, according to fair housing attorney Daniel Bancroft. He says the training should cover these key topics:
Understanding who is (and is not) covered under fair housing laws;
How to select residents and enforce the lease without discriminating or appearing to discriminate;
What to do when one resident claims that another resident discriminated against him or harassed him because of characteristics protected under federal, state, or local law;
What a “reasonable accommodation” is, and when a requested accommodation is not reasonable;
Understanding the legalities of the term “disabled”;
What documents you need to defend yourself if your community is the target of a fair housing lawsuit; and
How fair housing laws apply to the application process, period of occupancy, and eviction process.
How much training costs. The cost could range from several thousand dollars to free of charge, depending on where and how the training is conducted. The cost will be in the upper range if you bring a fair housing professional on-site to train your employees, and free if your employees attend training offered by some state fair housing agencies.
On-site training by a fair housing professional could range from $1,500 for a half day to $3,000 for a full day, according to Johnson, who normally runs half-day training sessions and charges a flat fee. He notes that some trainers charge based on the number of attendees. An attorney is likely to charge by the hour to conduct a fair housing training.
How often employees should receive training. The fair housing experts diverged significantly in their advice concerning how frequently you should conduct fair housing training for employees. “Train at least quarterly,” advises Sadovsky.
Johnson recommends that the training be done at least annually. When he conducts training sessions, the owners bring in their primary staff, leaving a skeleton crew in the office. His larger clients hire him to conduct a training session four to five times each year, so that by the end of the year all staff has received training.
Hein expressed concern that annual training in fair housing basics may be too much for employees who have been through previous training. Every two years may be enough for those employees, though Hein emphasizes that owners need a system to keep everyone updated on changes that may have occurred in the meantime.
Rule #2: Designate a Fair Housing Coordinator
To enhance compliance efforts, a number of the experts we consulted recommended appointing a staff member as the fair housing coordinator for the community. In fact, Johnson notes, HUD requires a Section 504 coordinator in federally assisted housing units under certain circumstances. (Section 504 is a federal law protecting the disabled from discrimination.)
Having a fair housing coordinator on staff sends a strong message that your community takes fair housing compliance seriously and doesn't engage in illegal discrimination, which is a welcoming sign to prospects and a comforting gesture to residents, says Ohio fair housing attorney Avery Friedman. It sends the same message to an investigator or a judge if your community is ever the subject of a fair housing complaint, he adds.
In addition, a fair housing coordinator will fulfill several functions that will help your community comply with fair housing laws:
Point-of-contact for fair housing matters. The role of the fair housing coordinator is to handle all fair housing concerns as they arise, according to Johnson. Having one person who is well trained in how to respond to fair housing complaints may help prevent informal complaints from escalating into lawsuits or HUD complaints, he says. Johnson stresses the importance of having a fair housing coordinator to handle requests for reasonable accommodations from persons with disabilities. Handling these requests takes a lot of knowledge and experience, so consistency is critical, he notes.
Resource for staff members. The fair housing coordinator can ensure that all your staff members understand how to treat prospects and residents fairly under the law, and can effectively funnel key compliance information and tips to your staff, according to apartment management expert Doug Chasick.
When staff members have questions about fair housing issues, the fair housing coordinator serves as the “go to” person who will get the answers, Sadovsky adds. Even if the coordinator doesn't know the answers, he will know where to look. That way, your staff members' questions are more likely to get answered—quickly and correctly. To make sure your fair housing coordinator can perform this role, you must choose an appropriate employee and give him proper training.
How to choose a coordinator. Don't assign the title of fair housing coordinator to just any staff member, cautions Friedman. The best candidate for a community's fair housing coordinator is a staff member who is articulate, has experience with or shows interest in fair housing issues, and whom you can trust to do a consistently thorough job, he explains.
Johnson notes that, except in very large communities, the role of fair housing coordinator is not usually the staff member's only job. It is usually a senior manager or a member of the supervisory staff with multiple years of experience and plenty of training in fair housing issues, he says.
Temperament is very important, Johnson adds, because the fair housing coordinator's role often puts him in the middle of adversarial situations. You want someone who is both even-tempered and thick-skinned, because the coordinator must respond in a professional manner even if he—or the community—is accused of bigotry or discrimination, Johnson says. The coordinator also needs backbone. He must be able to advise the owner when the community has done something wrong and say what must be done to resolve the matter.
How to train the coordinator. To qualify to perform his duties, a fair housing coordinator should first meet with the community's attorney to get familiar with fair housing law and compliance, suggests Chasick. At this meeting, they should cover:
Federal fair housing law;
State and local fair housing law, especially any additional protected characteristics (such as age, sexual orientation, or source of income);
Fair housing law resources, including books, newsletters, and Web sites; and
Contact information for your local fair housing agency or HUD office.
Once your fair housing coordinator is up to speed on fair housing issues, it's important for him to stay current, says Friedman. To do so, he should regularly check resources, particularly Web sites, to learn about changes in fair housing law and other developments or updates.
COACH'S TIP: Consider the size of your company and the number of staff members when deciding who should serve as a fair housing coordinator, suggests Chasick. For instance, if your company owns or manages many apartment communities, it may make the most sense to appoint a fair housing coordinator for each regional office that services your communities, he says.
Rule #3: Provide Immediate Training to All New Hires
It's important to provide new employees with fair housing training as soon as they are hired, according to Johnson. When you hire a new person, it could be several months before your next staff training session. Johnson warns that a new employee should not deal with the public without at least a basic understanding of fair housing law. This requires that communities have an in-house training program, because formal training may not be readily available when the hiring occurs.
The fair housing coordinator should put together the program and provide the training, Johnson says. It can be informal, but it should cover the basics of protected classes under federal fair housing law, as well any additional protected classes under state or local law.
The training should cover your community's procedures and what employees can and can't do under fair housing law. It should also focus on how to deal with people over the phone and how to handle requests for accommodations. Finally, the training should emphasize that new employees should ask the fair housing coordinator whenever questions arise during the course of their new jobs.
Rule #4: Include ‘People Skills’ in Employee Training
It's easy to overlook, but training your staff in basic “people” skills is a key component in preventing fair housing complaints. Such training is important, says Sadovsky, because more people file complaints based on the way they are spoken to or treated than they do as a result of actual discrimination.
For example, she says, staff should be trained not to “interrogate” when screening applicants. A complaint could arise from an applicant who believes he is being questioned or treated rudely by a leasing consultant because he is a member of a protected class—even if the consultant treats everyone that way.
Sometimes it's a matter of simple courtesy. Housing expert Roxie Munn recommends that all staff members be reminded that everyone has the right to expect courtesy, and to treat residents the same way that they wish to be treated. Moreover, the importance of consistency can't be over-emphasized in fair housing compliance, she says.
Rule #5: Establish a System to Monitor Employee Compliance
Even if you appoint a fair housing coordinator to monitor employee compliance with fair housing law, it may be difficult for owners to detect whether an employee is complying with your fair housing policies when dealing one-on-one with prospects, applicants, or residents—short of receiving a complaint.
Therefore, you may consider using a shopping service. Hiring “shoppers” to pose as rental prospects is an effective way to monitor whether your employees are complying with fair housing laws and to identify any weaknesses—either in an employee's performance or in the effectiveness of your training program.
COACH'S TIP: If you use a shopping service, consider including a consent form in your employment package, Hein says. The form would acknowledge that the employee understands that the employer may use a shopping service to verify that he or she is following its policies and procedures.
Rule #6: Establish and Implement Follow-Up Procedures
Another key step is to establish, implement, and train staff in procedures to follow up with any fair housing issues, advises Hein. Following through is important to address the root cause of a complaint to prevent a recurrence. It's much more difficult to defend a fair housing claim if you had prior notice of a similar incident, but didn't do anything about it, Hein warns.
For example, a shopping service might report that a leasing consultant responded inappropriately to a shopper's question. The employee may indeed have acted improperly, triggering the need to take disciplinary action. Or it could be that the employee misunderstood something he heard during training, pointing to the need for more training for this employee.
However, it could point to a system-wide problem: If the consultant said he was told to respond that way during training, there could be a problem with the training itself. Perhaps the entire staff received incorrect information, which would require you to clear up the issue with everyone who received the faulty training.
Having follow-up procedures also will help ensure a prompt and consistent response to accommodation requests by disabled residents, particularly requests for parking spaces. Each request must be considered individually, but your community must respond in a consistent manner to similar requests, to prevent fair housing complaints.
COACH'S TIP: Failure to respond to an accommodation request in a timely manner could trigger a fair housing complaint, so your follow-up procedures should ensure that requests don't fall through the cracks. Hein offers one way to do that: When a request comes in, it should be forwarded to the fair housing coordinator, who then forwards it to his supervisor. That way, at least two people know about the request.
Fair Housing Act: 42 U.S.C. §3601 et seq.
Daniel Bancroft, Esq.: Attorney at Law; Newton, MA
Doug Chasick, CPM, CAS, CAPS, Adv. RAM, CLP: Senior Vice President, Strategic Services, CallSource; Melbourne Beach, FL
Avery Friedman, Esq.: Chief Counsel, Fair Housing Council; Cleveland, OH
Robin Hein, Esq.: Attorney at Law; Atlanta, GA
A.J. Johnson: A.J. Johnson Consulting Services Inc.; Williamsburg, VA
Roxie Munn: Roxie Munn, Inc.; Piedmont, SC
Anne Sadovsky, CSP: Anne Sadovsky and Co.; Dallas, TX
COACH'S TIP: If you typically give your attorney a lot of business, she may be willing to hold a fair housing seminar for your employees at a reduced rate or free of charge.
Take The Quiz Now
|February 2008 Coach's Quiz|