Spring Leasing Season: Time for a Fair Housing Refresher
With the spring leasing season in full swing, the Coach gets back to basics with a refresher on fair housing law. Think you already know all you need to know? You might be surprised, since the law banning housing discrimination isn’t as straightforward as it seems. Whether you’re new to the industry or a seasoned veteran, it’s important to understand how the law protects prospects, applicants, and residents so you can recognize—and avoid—the pitfalls that commonly lead to fair housing trouble.
In this lesson, we’ll review the basics of fair housing law, including what the law says, who is protected, and who may be liable for fair housing violations. Then we’ll give you seven rules to follow to help you avoid getting tripped up by fair housing requirements. Finally, you can take the Coach’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) is a federal law that prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability—also known as “protected classes.” Depending on where you’re located, there may be additional protected classes—such as marital status, sexual orientation, or source of income—under state or local fair housing laws.
In general, fair housing law targets housing practices that exclude or otherwise discriminate against anyone because of her race or other protected class. Owners, managers, and individual employees all may be held liable for discriminatory housing practices, including:
- Refusing to rent or making housing unavailable;
- Falsely denying that housing is available for inspection or rental;
- Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures.
- Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms.
- Discouraging prospects from renting a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable with existing residents;
- Assigning residents to a particular section of a community or floor of a building;
- Providing different housing services or facilities, such as access to community facilities; and
- Failing or delaying maintenance or repairs.
In addition, the FHA makes it illegal to advertise or make any statements that indicate a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, and familial status. The law also prohibits retaliation by making it unlawful to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right or assisting others who exercise that right.
7 RULES TO AVOID FAIR HOUSING TROUBLE
Rule #1: Don’t Discriminate Against Racial Minorities
The FHA bans discrimination based on both race and color, two separate but closely related characteristics. In general, race refers to a person’s physical appearance and color refers to a characteristic of a person’s race, so discrimination claims based on color are often coupled with claims based on race.
The fight against racial discrimination and segregation was one of the main reasons that the FHA was passed nearly 50 years ago. For much of the law’s history, the majority of formal fair housing complaints were based on race. In recent years, disability claims have taken the top spot, but race discrimination complaints remain a close second.
On the surface, much has improved. HUD’s most recent nationwide fair housing testing found that blatant acts of housing discrimination were down, but that doesn’t tell the whole story since the same study found that subtle forms of discrimination against minorities stubbornly persist. Though few were denied an appointment to see an advertised unit, the study found that real estate agents and rental housing providers recommended and showed fewer available homes and apartments to African-American, Asian, and Hispanic families.
Federal enforcement officials and private fair housing organizations are continuing to send out fair housing testers to check for signs of discrimination against racial minorities. They’re on the lookout for discriminatory practices, so they’re dispatching testers to check for any differences in how you’re treating people based on race and other protected classes.
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, according to a recent announcement by ERASE Racism and the Fair Housing Justice Center. The case was based on the results of fair housing testing, which allegedly showed marked significant discrepancies between the welcoming responses received by white testers and the discriminatory actions against African-American testers posing as prospects. The complaint accused a manager of discouraging African Americans from renting apartments 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.
Example: In February 2016, the owner and operator of a Florida community agreed to a $40,000 settlement to resolve allegations of race discrimination based on fair housing testing by the Justice Department. The complaint alleged that the park’s owner and operator falsely told African-Americans testers that no rentals were immediately available for rent, but told white testers that they were, in fact, available for rent. According to the complaint, 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.
“Owners of rental properties cannot pick and choose residents based on race or color,” Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division, said in a statement. “The Justice Department will continue to hold owners who violate the law accountable for their discriminatory conduct.”
Rule #2: Don’t Discriminate Against Ethnic Minorities
The FHA prohibits discrimination based on national origin, so it’s unlawful to treat people differently because of their ancestry, ethnicity, birthplace, culture, or language.
HUD says that the law prohibits communities from denying housing opportunities to people because they or their ancestors came from another country, because they have a name or accent associated with an ethic group, or because they are married to or associated with people from a particular country. HUD offers some examples:
- Refusing to rent to people whose primary language is other than English;
- Offering different rent rates based on ethnicity;
- Steering prospects to or away from certain areas because of their ancestry; and
- Failing to provide the same level of service or housing amenities because a resident was born in another country.
National origin discrimination often involves immigrants or non-English speaking individuals, but can also involve native-born U.S. citizens based on their family ancestry. HUD warns that immigration status does not affect whether an individual is entitled to protection under federal fair housing law. You can’t ask people for additional documentation because of their national origin—regardless of immigration status. According to HUD, it’s illegal to impose requirements that apply only to people from certain ethnic groups, such as Asians or Latinos, for example, by asking them to show extra forms of identification to apply for housing like a green card, passport, or Social Security card.
Example: In March 2016, the owners and managers of a California community agreed to settle a HUD complaint for discrimination based on national origin. A fair housing organization filed the complaint, alleging that its testing showed that the owners, through the management company, discriminated based on national origin by denying housing and imposing different terms and conditions regarding government-issued forms of identification. According to the complaint, the managers allegedly told testers who offered a Mexican passport and a Mexican consular identification that such identification would not be accepted, but encouraged testers using a Canadian passport to apply.
“Where a person is from should not influence the housing options that are available to them,” Gustavo Velasquez, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “The Fair Housing Act requires property owners to treat everyone equally and HUD will continue to take action when they fail to meet that obligation.”
Rule #3: Don’t Discriminate Based on Religious Differences
The FHA bans housing discrimination based on religion, so it’s unlawful to refuse to rent to people, or to treat them differently, because of their religion. For example, it’s unlawful to show favoritism toward applicants who share your religious beliefs—or bias against those of other religious faiths.
The FHA doesn’t define “religion,” but fair housing experts believe it’s broad enough to prohibit discrimination against individuals who are not affiliated with a particular religion or do not 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.
There are relatively few complaints based solely on religion, but it could be included in discrimination claims based on race or national origin. For example, you could face a fair housing claim based on religion and national origin for discrimination against individuals who are Muslim or of Middle Eastern descent. In a recent media campaign, HUD highlighted the issue with a print ad showing a woman wearing traditional Muslim head garb, asking: “Is religious discrimination keeping you out of the home of your dreams?” The ad explained that housing discrimination based on any form of religion is illegal, warning against these signs of possible discrimination:
- “I’ll show you neighborhoods with mosques.”
- “We only take people who speak English clearly.”
- “You might be more comfortable living elsewhere.”
Rule #4: Don’t Discriminate Against Families with Children
Fair housing law prohibits discrimination because of familial status. It protects families with children, but goes beyond that to cover other living arrangements because the FHA broadly defines “familial status” to mean households with one or more children who are under 18 years of age, where the child is living with:
- A parent;
- A person who has legal custody (such as a guardian); or
- A person who has the written permission of the parent or legal custodian to care for the child.
That covers not only traditional families with children, but also same-sex couples, single mothers or fathers, grandparents, and others who have permission to have a child under 18 living with them. It also includes pregnant women and those in the process of securing legal custody of a minor child, such as a foster or adoptive parent.
There’s a limited exception to the familial status provisions that allows senior housing communities to lawfully exclude children, but it applies only if the community satisfies strict legal requirements to qualify as “housing for older persons.” Otherwise, it’s unlawful to refuse to rent to families with children under 18 by enforcing an “adults-only” policy or adopting rules, such as an age limit, that would prevent children from living there.
Example: In March 2016, the corporate owner and an agent of an Indiana mobile home community agreed to pay $130,000 to settle a fair housing case alleging familial status discrimination. Based on evidence gathered during fair housing testing by the Justice Department, the complaint alleged the community maintained and enforced a discriminatory policy of refusing to allow families with children to live there. According to the complaint, the agent allegedly told one tester that he couldn’t rent her a unit for herself, her husband, and minor child because no one under the age of 40 was allowed to live there. Allegedly, she called back to say that she and her husband would both soon be 40, but he said “there’s no kids allowed out here.”
“The Fair Housing Act guarantees families with children the right to choose a home without facing unlawful barriers of discrimination,” Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division, said in a statement. “The Justice Department will continue its vigorous enforcement of the Fair Housing Act to ensure that equal access to housing—a bedrock of the American dream—remains a reality for all families in our country.”
Rule #5: Don’t Discriminate Based on Sex
Fair housing law prohibits discrimination based on sex. In general, that refers to gender, so it’s unlawful to refuse to rent to people of either sex—or to treat men and women differently—because of their gender. Examples include favoring one sex over another, subjecting either sex to more rigorous screening criteria, offering either sex more favorable rental terms, or holding either sex to more stringent application of community rules.
Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex, according to HUD. The law protects both men and women from sexual harassment, whether the perpetrator is male or female. The key is whether the unwelcome sexual conduct is directed at a particular individual because of his or her gender, so it doesn’t matter whether the harassment is motivated by sexual desire or by hostility toward a particular gender—or if the harasser and the victim are of the same sex.
Example: In March 2016, the Justice Department filed a sexual harassment case against a West Virginia man, who owned and managed rental property with his late wife. The husband is currently incarcerated, serving up to 10 years for sexual abuse and other charges. The complaint accused the husband of egregious acts of sexual harassment against multiple female residents, including: unwanted and unwelcome sexual touching, groping, and sex acts with female residents; conditioning or offering tangible housing benefits to female residents in exchange for performing sex acts on him or his maintenance workers; and retaliating against female residents when they refused his sexual advances or objected to continuing to grant sexual favors.
“No woman should have to suffer sexual harassment in her home or live in fear of retaliation when she reports such heinous acts of discrimination,” Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division, said in a statement. “Sexual abuse has no place in a civilized society, and the Justice Department will continue to vigorously enforce the Fair Housing Act by safeguarding the rights of tenants and holding perpetrators accountable.”
Rule #6: Don’t Discriminate Based on Disability
The FHA bans discrimination based on disability, so it’s unlawful to deny housing to people—or to treat them less favorably than others—because of a disability. Among other things, the law bans unlawful steering—that is, guiding, directing, or encouraging prospects to live in, or not live in, the community or certain sections of the community because of a disability.
Under fair housing law, “disability” means a physical or mental impairment that substantially limits one or more major life activities. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.
There are a few exceptions. Although the disability rules protect those recovering from past drug addiction, it specifically excludes anyone who is currently using illegal drugs. The law also excludes individuals with disabilities whose tenancy would constitute a “direct threat” to the health or safety of others—or result in substantial physical damage to the property of others—unless the threat can be eliminated or significantly reduced by reasonable accommodation. But it’s a limited exception—federal guidelines warn against a blanket policy that excludes anyone based upon fear, speculation, or stereotypes about disabilities. Instead, the law requires an individualized assessment of the particular applicant or resident based on reliable objective evidence of current conduct or a recent history of overt acts.
There are strict guidelines on when you may—and may not—ask disability-related questions. You may ask about an applicant’s ability to meet the requirements of ownership or tenancy, as long as you ask all applicants the same thing, regardless of disability. But you may not ask questions to determine whether an applicant (or someone in his household or associated with him) has a disability. Likewise, you may not ask questions about the nature or severity of a disability.
The law bans discrimination against applicants because they—or someone associated with them—has a disability. That means that it’s unlawful to exclude or otherwise discriminate against an applicant or resident because a family member, friend, or guest has a disability.
Example: In February 2016, the Fair Housing Center of Central Indiana (FHCCI) announced that it has filed a fair housing case against the owners and managers of a cooperative community on behalf of a woman who said she was denied housing because of a family member’s disability. The complaint alleged that the woman wanted to rent a two-story townhouse at the community for herself, her children, and her mother, who was quadriplegic. The woman said she and her children intended to use the upstairs bedrooms, while her mother, who spent most days in a hospital bed due to paralysis, would use the downstairs living room. The complaint alleged that after she disclosed her mother’s condition, the community rejected her application, explaining that the community wasn’t handicapped accessible and “it will be a liability to offer you a unit that is not accommodating to everyone in the household.”
“Disability has been a federally protected class since 1988, but we still see examples of housing discrimination daily,” Amy Nelson, FHCCI Executive Director, said in a statement. “Persons with disabilities must have housing options available to them similar to those without disabilities, including access to housing of their choice.”
Rule #7: Consider Reasonable Accommodation and Modification Requests
In addition to the general rules banning disability discrimination, there are extra rules that require communities to grant reasonable accommodations or modifications if necessary to allow individuals with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.
Under the FHA, it’s unlawful to refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing. By definition, reasonable accommodations are exceptions to your general policies or practices. Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking spot in a community that doesn’t have assigned parking. In general, communities are required to grant such requests if it’s both reasonable and necessary to allow an individual with a disability to fully use and enjoy the community. In general, communities are responsible for paying the costs associated with a reasonable accommodation as long as it doesn’t pose an undue financial and administrative burden.
Likewise, it’s unlawful to refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing. Reasonable modifications are structural changes to interiors and exteriors of units and to common and public use areas, such as lobbies, main entrances, and parking lots. Examples include widening doorways to make rooms more accessible for people in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to make a primary entrance accessible, or altering a walkway to provide access to a public or common use area. In general, residents are responsible for paying the cost of the reasonable modifications.
It’s unlawful to refuse to rent to prospects because they ask for a disability-related accommodation or modification. Testers are checking for signs of disability discrimination, particularly against people who need assistance animals. Even if your general policy bans or restricts pets, you could trigger a fair housing complaint if you tell them that animals aren’t allowed or stonewall them so that you can rent the unit to someone else.
Example: In October 2015, HUD charged the owner of a Utah community with disability discrimination for allegedly denying housing to a prospect—who turned out to be a tester—because she said her husband needed an assistance animal. A fair housing organization, which partners with HUD through a grant program, filed the complaint based on the results of fair housing testing. The complaint alleged that when a tester, posing as a prospect whose husband used an assistance animal, asked about a unit that had been advertised on Craigslist, the owner refused to negotiate with her about the unit. Allegedly, he told the tester that he and his partner “usually don’t accept animals” and promised to call her back, but he never did. Soon after, he allegedly rented available units to applicants who did not have disabilities.
“For more than 25 years, persons with disabilities have had the right to keep assistance animals that help them perform everyday activities,” Gustavo Velasquez, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work with our fair housing partners to ensure that owners and landlords meet their obligation to provide reasonable accommodations when they are needed."
Coach’s Tip: The FHA imposes accessibility requirements in the design and construction of rental housing built since the early 1990s. The rules, which apply to housing with four or more rental units that were first occupied after March 13, 1991, require:
- Accessible entrance on an accessible route;
- Accessible common and public use areas;
- Doors sufficiently wide to accommodate wheelchairs;
- Accessible routes into and through each dwelling;
- Light switches, electrical outlets, and thermostats in accessible locations;
- Reinforcements in bathroom walls to accommodate grab bar installations; and
- Usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.
- Fair Housing Act: 42 USC §3601 et seq.