Top 10 Things You Should Know to Prevent Discrimination Claims

This month’s lesson highlights the top 10 things that you should know to prevent housing discrimination claims. Of course, fair housing law can get pretty complicated, but this lesson reviews the basics that everyone working at your community—regardless of his or her job—should understand about what’s okay—and not okay—to do or say when interacting with applicants, residents, and guests at the community.

A thorough understanding of fair housing law is critical for employees working in the leasing office. It’s common for those employees to get fair housing training at regular intervals, but what about new employees hired in the interim? Fair housing experts warn against allowing new hires to interact with the public until they receive at least some fair housing instruction. “Any company or employer in this industry that doesn’t give fair housing training on day one is at risk,” warns fair housing expert Anne Sadovsky.

That applies to all new hires, not just those in your leasing office, says Sadovsky, who recommends mandatory fair housing training on the first day on the job for everyone—including service techs, maintenance workers, landscapers, and housekeeping staff.

In this lesson, we’ll start with an overview of fair housing law—what it says and whom it covers. Then, we’ll highlight the 10 things that everyone should know to prevent discrimination claims. 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 bans housing discrimination in just about all types of rental housing. The law forbids communities from denying housing to anyone—or treating them differently—based on race, color, religion, national origin, sex, disability, and familial status.

Owners, managers, and individual employees all may be held liable for a fair housing violation based on a broad range of discriminatory practices against those protected under the law. Examples include:

• Refusing to rent or making housing unavailable;
• Falsely denying that housing is available for inspection or rental;
• Using different qualification standards or rental approval procedures;
• Applying different terms or conditions, such rental charges or security deposits;
• 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 to provide or delaying maintenance or repairs.

In addition, the FHA bans discriminatory statements—by your employees or in your advertising—that indicates a preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, or familial status. And the law also prohibits retaliation against anyone for exercising her rights under fair housing law or assisting others who exercise that right.

COACH’s Tip: This issue is focused on federal fair housing law, but your community may be subject to state or local laws that ban discrimination based on other characteristics, such as marital status or sexual orientation. For more information, see the January 2014 lesson, “What You Should Know About State & Local Fair Housing Laws,” available here.  

TIME OUT!

Protected Classes Explained

Federal fair housing law bans discrimination based on seven characteristics—or “protected classes”: race, color, religion, national origin, sex, disability, and familial status. Here’s a quick look at what these terms mean:

Race and color: These are two separate, but closely related characteristics. Race refers to a person’s physical appearance, and color refers to a characteristic of a person’s race.  

National origin: This is based on whether applicants—or their families—come from another country. Discrimination based on national origin means treating people differently because of their ancestry, ethnicity, birthplace, culture, or language.

Religion: This refers to members of a particular faith or belief system, and may also cover anyone based on his spiritual beliefs, even if he isn’t affiliated with a particular religious group.

Sex: This refers to treating women—or men—differently because of their gender, and bans sexual harassment against both women and men.

Disability: This refers to a physical or mental impairment that substantially limits one or more major life activities. However, individuals who currently use illegal drugs or pose a direct threat to the health and safety of others are not considered disabled under the FHA.

Familial status: This refers to households with one or more children who are under 18 years of age, whether living with a parent, legal guardian, or anyone else with written permission. It also applies to pregnant women and anyone in the process of securing legal custody of a minor child, such as a foster or adoptive parent.

TOP 10 THINGS EVERYONE SHOULD KNOW ABOUT FAIR HOUSING LAW

Rule #1: It’s Illegal to Exclude Anyone Based on a Protected Characteristic

You may wonder why fair housing law is still needed. After all, the country has moved a long way from the old days when blatant discrimination against racial minorities was common. Today, you’d never dream of saying, “Whites Only” or “No Minorities” in signs or advertising. Yet signs of such blatant discrimination continue, particularly on the Internet where you don’t have to look hard to find ads saying, “Adults Only” or “No Kids.”

Just as it’s illegal to refuse to rent to anyone because of her race, you can’t deny housing to anyone because she has a child under 18 living with her—unless the community qualifies as a senior housing community. It’s not easy to comply with all the legal requirements to qualify, such as record-keeping rules to show that at least 80 percent of units are occupied by at least one person 55 and older. Without complying with these and other rules, your community could be accused of discrimination based on familial status by refusing to allow children to live there.

Example: In December 2013, the owner and manager of a New Hampshire boarding house agreed to pay more than $5,000 to settle allegations of discrimination based on familial status for enforcing a “no children” policy. Allegedly, the lease stated that no children were allowed in the building.

The complaint alleged that the resident had joint custody of his minor daughter, who visited him on weekends. After receiving noise complaints about the child, the owner allegedly sent the resident an eviction notice, requiring him to immediately make other arrangements for the girl on the weekends.

“It’s surprising that 25 years after Congress outlawed housing discrimination against families with children, many landlords don’t know it’s illegal or don’t take the law seriously,” Bryan Greene, Acting Assistant Secretary for HUD’s Office of Fair Housing and Equal Opportunity, said in a statement.

By the same token, it’s unlawful to exclude or otherwise discriminate against anyone because of his race, color, national origin, religion, sex, disability, or familial status. Fair housing organizations are on the lookout for discriminatory practices aimed at denying housing to anyone based on a protected characteristic.

Example: In January 2014, the National Fair Housing Alliance (NFHA) filed housing lawsuits alleging discrimination against the deaf and hard of hearing by major housing providers in six states. The complaints alleged that the owners and management companies refused to offer housing to the deaf and hard of hearing or charged them higher prices and provided them with inferior information and services.

“The findings of NFHA’s deaf and hard of hearing investigation are a major cause for concern,” NFHA President and CEO Shanna L. Smith said in a statement. “Seniors, young people, and veterans make up the majority of people with hearing loss in the United States. The fact that some apartment owners refuse to even consider renting to deaf persons is appalling and it is illegal. Enforcement changes behavior and NFHA intends to use the full force of the Fair Housing Act to open up housing choice for deaf and hard of hearing persons.”

Rule #2: Subtle Discrimination Is Just as Bad

Subtle forms of discrimination are just as illegal as blatantly discriminatory policies. The FHA outlaws a wide range of discriminatory practices—from outright refusals to rent to more subtle tactics—that operate to deny housing based on a protected characteristic.

Last year, HUD reported that blatant acts of housing discrimination faced by minority home seekers continue to decline in the United States, yet more subtle forms of housing denial stubbornly persist. The report was based on the results of fair housing testing involving 8,000 pair tests in 28 metropolitan areas across the country. 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.

“Fewer minorities today may be getting the door slammed in their faces, but we continue to see evidence of housing discrimination that can limit a family’s housing, economic, and educational opportunities,” HUD Secretary Shaun Donovan said in a statement. “It’s clear we still have work to do to end housing discrimination once and for all.”

Among other things, it’s unlawful to provide inaccurate or untrue information about the availability of a unit because of race, color, religion, sex, handicap, familial status, or national origin, according to HUD regulations. You could open your community up to liability for significant damages for misrepresenting availability to prospects based on their race or national origin.

Example: In January 2014, a Texas community agreed to pay $317,000 to settle allegations that the owners, employees, and management company violated federal fair housing law by denying housing opportunities to persons of Middle Eastern and South Asian descent. Among other things, the complaint claimed that the property manager ordered leasing agents to misrepresent apartment availability based on the accent and perceived race or national origin of potential tenants. Allegedly, she also told them to segregate approved residents of Middle Eastern or South Asian descent into two buildings to isolate any smells allegedly associated with ethnic cuisine that the manager reportedly disliked.

“The Fair Housing Act ensures that people searching for a home are protected from discrimination, no matter what part of the world their family comes from,” Acting Assistant Attorney General Jocelyn Samuels said in a statement.

Example: In December 2013, the owner and manager of a New York community agreed to pay $92,000 to settle a lawsuit accusing them of racially discriminatory housing practices. The complaint alleged that they failed to inform African-American prospects about available units, while telling white prospects that units were in fact available. In addition, they allegedly failed to show available units and give rental applications to African-American prospects, but showed available units and gave rental applications to white prospects. They were also accused of quoting higher rent prices and less favorable security deposit terms to African-American prospects than those offered to similarly situated white prospects [U.S. v. 61 Main Street Corp., December 2013].

Rule #3: Don’t Make It Harder

Take the time to learn your community’s standard policies and procedures and apply them to everyone expressing an interest in—or living at—your community. Consistency is the key to avoid accusations that you’re treating anyone better—or worse—than anyone else based on her race, color, national origin, religion, sex, disability, or familial status.

For example, you shouldn’t make the application process harder for minority prospects—or anyone else protected under fair housing law. Applying more burdensome application procedures, requiring additional documentation, or using delaying tactics based on a protected characteristic could lead to a discrimination claim.

Example: In July 2013, a federal court upheld a $34,000 HUD ruling against an owner accused of discriminating against a prospect after she disclosed that her autistic brother would be living with her. In response, the owner allegedly said that the prospect had to meet certain conditions—including a $1 million renter’s insurance policy—before she could continue with the application process. The court ruled that there was enough evidence to find the owner liable for making housing unavailable and for imposing discriminatory terms and conditions because of a disability [Corey v. Secretary, July 2013].

Example: In December 2013, a court refused to dismiss a fair housing case against the owners and managers of communities in New York City alleging discrimination against individuals living with HIV/AIDS. The case was filed by a fair housing organization on behalf of a prospect who had a housing subsidy the city issues to individuals with symptomatic HIV/AIDS. The complaint alleged that the community refused to consider her application unless she first provided a letter to confirm her voucher, even though the city didn’t issue such letters.

The complaint also accused the community of discrimination based on the results of fair housing testing. Allegedly, testers who said they would pay rent from their employment were given applications and shown available units without the need for paperwork. In contrast, the fair housing organization said that individuals using the subsidies for individuals with symptomatic HIV/AIDS were required to go to a separate off-site leasing office, speak with employees behind a glass window, complete a rental application, submit to a credit and criminal background check, and provide other documentation before any information would be provided about available units. The defendants denied the charges, but the court declined to dismiss the case [L.C. v. LeFrak Organization, Inc., December 2013].

Rule #4: Watch Your Words

What you say could come back to haunt you. Under the FHA, it’s unlawful to make, print, or publish statements that suggest any preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, or familial status.

These rules apply to any statements—spoken or written. So you could face a fair housing claim if you make discriminatory statements when communicating with prospects or residents—whether on the phone, in person, or responding by email. You should watch what you say since a fair housing problem could arise whenever you’re dealing with prospects or residents in the office, in the hallway, or in their units.  

The rules also apply to discriminatory advertising—even online. Even though the rules have been around a while, HUD says that the ban on discriminatory advertising applies to any form of communication, whether in traditional forms of media or on the Internet. And in some cases, online advertising has led to accusations of discrimination under state fair housing laws.

Example: In January 2014, two Boston-area housing providers agreed to pay $12,500 to settle accusations of discrimination against families with children and violations of state lead paint laws. According to allegations, the providers posted several discriminatory advertisements on Craigslist, which triggered an investigation by a fair housing organization. Allegedly, a series of fair housing tests showed that the providers engaged in a pattern of discrimination against families with children, due to the presence of lead paint in the units. In one test, for example, the agent allegedly refused to show a rental unit to a tester who said he had a child under 6 years of age, but on the same day agreed to show the same property to another tester who had no children.

Rule #5: Keep Personal Opinions to Yourself

We all have personal opinions about how people should behave based on where we live, how we were raised, and other factors, such as our religious beliefs or political views. Of course, everyone is entitled to have personal opinions, but it’s important to remember that they are just that—strictly personal.

Don’t allow your personal beliefs or political opinions to affect how you treat prospects, applicants, or residents. For example, some people disapprove of unmarried women having children, but showing that disapproval in the way you treat them could trigger a discrimination claim based on familial status.

Guard against allowing your views on hotly divisive political issues—such as immigration reform—from spilling over into the workplace. You could face a discrimination claim based on national origin if you treat prospects differently because they’re members of a particular ethnic group.

Don’t be thrown off by first impressions based on the way applicants or residents look, dress, or speak. Often, they reflect cultural differences associated with race, national origin, or religion, all of which are protected under fair housing law. Take care to avoid even the appearance of unfavorable or discriminatory treatment.

Rule #6: You Can Be ‘Too Helpful’

Take care to maintain a professional manner when dealing with prospects, applicants, and residents. You may think you’re just being nice, but you could trigger a fair housing problem by being too nice—or too helpful—for the wrong reasons.

The prime example is unlawful steering—that is, guiding applicants to—or away from—the community or particular parts of the community based on a protected characteristic. In some cases, it’s based on racial or ethnic bias—to keep minorities out of the community or segregated in certain areas within the community. But sometimes, it’s out of a well-intentioned—but misguided—attempt to help the applicant. For example, you may believe that an individual with a disability would prefer to live in a first-floor unit, but you could trigger a discrimination claim if you don’t tell her about available units on other floors that meet her needs. It’s unlawful to limit a prospect’s housing choices based on your beliefs about what she would prefer or what would be best for her because she has a disability.

Rule #7: Don’t Pick on Anybody—Especially the Kids

It’s okay to enforce reasonable rules, especially in common areas, where the community has a legitimate interest in maintaining the property, ensuring safety, and protecting the right of all residents to peaceful enjoyment of their homes. Just make sure that the rules don’t unfairly target families with children—or anyone else protected under fair housing law. You may have legitimate concerns about outdoor play activities that could disturb neighbors or damage your landscaping—but you could trigger a discrimination complaint if the rules unreasonably interfere with the ability of families with children to live in the community.

Example: In November 2013, the Justice Department sued a Minnesota condominium community, alleging that policies limiting or prohibiting children from playing in the complex’s common grounds violated fair housing law. The complaint claimed that the community effectively prevented children from accessing common areas at all by requiring adult supervision at all times, regardless of the circumstances.

“Housing providers cannot impose more restrictive policies on families with children or evict them simply because their children leave the unit,” Bryan Greene, HUD Acting Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD and DOJ are committed to enforcing the fair housing rights of all people, including families with children” [U.S. v. Greenbriar Village Homeowner’s Association, Inc., November 2013].

Rule #8: Don’t Be Too Quick to Say ‘No’

Applying standard rules and procedures for all your residents is important, but there’s a catch: You may have to make exceptions for individuals with disabilities.

Fair housing law includes special provisions protecting individuals with disabilities. Among other things, the law requires housing providers to consider requests for reasonable accommodations in policies, procedures, and services when necessary to allow an individual with a disability to use and enjoy use of the home.

It’s easy to see the need for an exception to community rules when an individual has an obvious disability-related need for the request. If your community has a “no pets” policy, for example, you must grant a request for a reasonable accommodation to allow a visually impaired resident to keep a guide dog, according to federal guidelines. It’s clear that the individual has a disability-related need for the exception and that enforcing the rules would interfere with his ability to live there.

But it’s not so easy when the request comes from an applicant or resident who doesn’t have an apparent disability. The law covers a broad range of impairments, many of which are not obvious or apparent, and allows you to request documentation under certain circumstances. Just don’t be too hasty to reject requests just because you’re unsure whether a prospect or applicant is, in fact, disabled. Otherwise, you’re likely to face a disability discrimination complaint.

Example: In October 2013, a California community was found liable for violating fair housing law by threatening to evict a resident after she asked to keep a companion animal as an accommodation for her mental disabilities. The community had a no-pets policy, but the woman asked for an exception. Although she presented a doctor’s note attesting that she was totally disabled and needed the companion animal due to her mental disabilities, the owners said they didn’t believe she was truly disabled.

The court ruled that the owners violated fair housing law by rejecting her reasonable accommodation request. If they were skeptical of her request, they should have asked for further documentation or engage in an “interactive process” by discussing it with her to address any doubts they harbored about her mental disability [Smith v. Powdrill, October 2013].

Rule #9: Don’t Bite Off More Than You Can Chew

There’s a lot you can do on your own—and with the COACH’s help—to avoid fair housing problems, but don’t be afraid of getting outside help when the circumstances deserve it. Court dockets are full of cases where owners, managers, or employees tried to go it alone—often with unfortunate results.

Sometimes a seemingly simple problem suddenly gets out of hand, and other times, it’s a complicated legal issue. Requests for reasonable accommodations often fall into this category, particularly for exceptions to pet policies to allow the resident to have an assistance animal. Perhaps the resident doesn’t have an apparent disability—or perhaps the animal is a pit bull or other restricted breed. You may—or may not—have to grant the request, but you do have to give it thoughtful consideration. Following the rules can be challenging, so it’s a good idea to get legal advice if you’re not sure what to do.

Rule #10: Stay on Top of Paperwork

Everyone is very busy these days, so you may find that you have little time—or inclination—to sit down and do the paperwork. Big mistake: Good record keeping is essential to defend yourself—and your community—from accusations of a fair housing violation.

Under the law, people have quite a long time to file a fair housing complaint. It may be months—or years—since the alleged discrimination occurred. Without the paperwork, how can you be expected to remember just what happened? Even if you do, it’s not as good as documentation created at the time of the events in question. Memories fade, and stories change, so it gives the other side a leg up if you can’t produce the records to back up your side of the story.

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

COACH Source

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