Year in Review: Highlights from the 2014 Lessons
In this Special Issue, we’re going to wrap up 2014 with a summary of all the lessons covered over the year. Keep it handy—it’s a brief refresher on top fair housing concerns and a helpful index to the full lessons, all of which are available to subscribers to review on—or download from—FairHousingCoach.com. At the end of each summary, you’ll find a Quiz question—with a link to the Answer—so you can see how much you’ve learned.
What You Should Know About State & Local Fair Housing Laws
All communities must comply with the federal Fair Housing Act (FHA), which bans discrimination based on race, color, national origin, religion, sex, disability, and familial status. In addition, communities must comply with applicable state and local laws, many of which have expanded fair housing protections to cover other characteristics. The lesson includes a state-by-state table of additional types of discrimination banned by state fair housing law. Here are some of the most common:
Marital Status: Nearly half the states prohibit housing discrimination based on marital status, which generally means being single, married, divorced, or widowed. Examples include showing a preference for married people, refusing to rent to applicants who are divorced or separated, or requiring single applicants to pay higher rent payments than married applicants.
These laws may take on new significance as more states recognize same-sex marriage. Even in states that don’t ban discrimination based on sexual orientation, fair housing advocates sometimes rely on state laws protecting marital status to pursue discrimination claims by same-sex couples.
Sexual Orientation and Gender Identity: At last count, 21 states and the District of Columbia have adopted fair housing protections based on sexual orientation—all but three also cover gender identity or expression. In general, “sexual orientation" means heterosexuality, homosexuality, or bisexuality; while gender identity or expression is defined as “a gender-related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth.” Sometimes, the term “transgender” is used to refer to gender identity and gender expression. (Update: Maryland added protections based on gender identity in May 2014).
Source of Income: In 12 states and the District of Columbia, the law bans discrimination based on lawful source of income—that is, discriminating against applicants or residents because of how they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance.
Many—but not all—also cover housing subsidies, most notably through the federal Housing Choice Voucher program (otherwise known by its old name, Section 8 housing vouchers). Though federal law doesn’t require participation in the Section 8 program, it may be unlawful to deny housing to voucher holders under state laws banning discrimination based on source of income.
In most states with fair housing protections based on sexual orientation, it’s also unlawful to discriminate against transgender applicants or residents. True or false?
For the Answer: See the January 2014 Quiz, Question #2: www.fairhousingcoach.com/article/january-2014-coachs-quiz.
How to Ensure Legal Compliance When Dealing with Domestic Violence
February’s lesson covers domestic violence—a serious public safety problem and a thorny legal issue for communities caught in the middle of domestic disputes.
On the federal level, the federal Violence Against Women Act (VAWA) offers comprehensive protections to domestic violence victims, but it applies only to public housing and communities receiving federal funding—not to private conventional housing.
Although federal fair housing law applies to all communities, it doesn’t specifically cover domestic violence victims. Nevertheless, HUD says that discrimination against domestic violence victims falls under the ban on sex discrimination, since the vast majority of domestic violence victims are women. Evicting a domestic violence victim because of the actions of her abuser—or refusing to rent to an applicant because of her past history as a victim of domestic abuse—could trigger a sex discrimination claim under fair housing law, according to HUD.
A few states have taken a comprehensive approach by expanding fair housing laws to ban discrimination against domestic violence victims. Many more have provisions in landlord-tenant laws to address specific concerns.
Meanwhile, some local governments have come under fire for “crime-free” ordinances and other measures aimed at reducing criminal activities in rental housing communities. The measures have been criticized for silencing crime victims and others who seek emergency assistance or report crimes. And some argue that enforcing the ordinances against a victim of domestic violence amounts to sex discrimination under federal fair housing law.
Update: Last year, the ACLU challenged a municipal ordinance on behalf of a domestic violence victim who faced eviction from her home after requesting police protection from an abusive ex-boyfriend. The complaint alleged that the Norristown, Pa., ordinance penalized landlords and encouraged them to evict residents when the police are called to a property three times in four months for “disorderly behavior,” including domestic violence. The ACLU argued that enforcing the ordinances against a victim of domestic violence amounts to sex discrimination under federal fair housing law.
In September 2014, the ACLU announced a settlement in which the city agreed to repeal the ordinance and pay $495,000 to the woman and her lawyers. HUD settled its claims in early October [Briggs v. Borough of Norristown, Pennsylvania, 2014].
Depending on where your community is located, you may be required to change locks or permit an early termination of the lease upon request by victims of domestic violence. True or false?
For the Answer: See the February 2014 Quiz, Question #2: www.fairhousingcoach.com/article/february-2014-coachs-quiz.
Top 10 Things You Should Know to Prevent Discrimination Claims
The March lesson reviews the basics to help everyone working at your community understand what’s okay—and not okay—to do or say when interacting with applicants, residents, and guests at the community.
1. It’s Illegal to Exclude Anyone Based on a Protected Characteristic. It’s against the law 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, lately homing in on discrimination against families with children and individuals with hearing impairments.
2. Subtle Discrimination Just as Bad: 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. For example, 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.
3. Don’t Make It Harder: Apply your standard policies and procedures to everyone expressing an interest in—or living at—your community. Applying more burdensome application procedures, requiring additional documentation, or using delaying tactics based on a protected characteristic could lead to a discrimination claim.
4. Watch Your Words: 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—whether on the phone, in person, and in an email—even online, according to HUD.
5. Keep Personal Opinions to Yourself: Don’t allow your personal beliefs or political opinions to affect how you treat prospects, applicants, or residents. And 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.
6. You Can Be “Too Helpful”: You could trigger a fair housing problem by being too nice—or too helpful—for the wrong reasons. The prime example is unlawful steering: Even if well intentioned, it’s unlawful to limit a prospect’s housing choices based on what you think would be best for her because she has a disability, or has children, or shares the same racial or ethnic heritage with current residents living in a particular area.
7. Don’t Pick on Anybody—Especially the Kids: It’s okay to enforce reasonable rules governing common areas—as long as they don’t unfairly target families with children or anyone else protected under fair housing law. You may be concerned that children playing outside might damage your landscaping, but you could trigger a discrimination complaint if you enforce rules that unreasonably interfere with the ability of families with children to live in the community.
8. Don’t Be Too Quick to Say “No”: Applying standard rules and procedures for all your residents is important—but you may have to make exceptions for individuals with disabilities. Fair housing 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.
9. Don’t Bite Off More Than You Can Chew: There’s a lot you can do on your own—and with 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.
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 recordkeeping is essential to defend yourself—and your community—from accusations of a fair housing violation.
You’ve received a number of complaints about noisy children playing outside, but you could face a fair housing complaint if you adopt a policy requiring adult supervision for all outdoor activities for children under 12. True or false?
For the Answer: See the March 2014 Quiz, Question #3: www.fairhousingcoach.com/article/march-2014-coachs-quiz.
Avoiding Fair Housing Problems During Evictions And Nonrenewals
Since both evictions and nonrenewals involve the decision by the community—not the resident—to end the tenancy, there’s a risk that the resident may respond by accusing you of a fair housing violation. It could be a bogus claim intended to delay or derail efforts to end the tenancy, or a legitimate claim that the resident may—or may not—have raised before. Either way, you should be prepared for fair housing trouble anytime you take steps to end a tenancy via nonrenewal or eviction.
Fair housing law doesn’t require you to allow a resident to live there indefinitely—or to put up with someone who doesn’t pay his rent or commits some other lease violation. Consistent with state and local laws, community owners and managers may exercise solid business judgment decisions about whether to renew a resident’s lease—or pursue eviction proceedings—as long as their decisions aren’t intended to discriminate against the resident because of race, color, or other protected characteristic.
You’ve gotten complaints that a family allows their children—ages 5, 7, and 9—to run around and play ball in the hallway. Several neighbors have complained that the children have bumped into them or hit them with the ball. You’ve seen the children’s behavior and warned the parents several times that the children can’t play ball in the hallway. Their lease is near the end of its term, so you’d prefer to not to renew it, but you’re worried that they’ll file a fair housing complaint, accusing you of discriminating against families with children. What should you do?
a. Renew the lease because it’s unlawful to discriminate against families with children.
b. Ask the family to move to another unit where there are mostly families with children.
c. Consult your attorney about not renewing the lease.
For the Answer: See the April 2014 Quiz, Question #1: www.fairhousingcoach.com/article/april-2014-coachs-quiz.
Take-Away Lessons from Recent Court Rulings on Fair Housing Law
The Coach’s May lesson reviews recent court rulings, including details about the dispute, the legal issues involved, what the court decided and why—along with take-away lessons to help you avoid similar fair housing problems at your community.
In one of those cases, a court ruled that a Massachusetts real estate broker violated fair housing law when he casually asked a prospect about her national origin. The incident occurred during a meeting with a married couple when the broker—whose wife was Brazilian—asked the woman, “Gladys, where are you from?” She answered that she was from Venezuela.
Unbeknownst to the broker, another realty company had just allegedly denied the couple an apartment because of her national origin. Worrying that it was happening again, the woman said that the incident caused her extreme anxiety and sleepless nights—which continued for years—even though they rented a unit a month later. The couple filed a complaint with the Boston Fair Housing Commission, which ordered the broker to pay more than $60,000 in damages, penalties, and attorney’s fees.
The state’s high court upheld the decision, but reduced the amount of damages, penalties, and attorney’s fees. Even though his question had no discriminatory intent and did not result in discrimination against the couple, the court said that the broker’s inquiry itself was a violation of fair housing law.
Take-Away: Small talk can get you into big trouble, so watch what you say in casual conversation with prospective residents. You may think it’s an innocent question, but you could inadvertently violate fair housing law if you step over the line by asking questions or making comments related to national origin and other characteristics protected under fair housing law.
You can violate fair housing law if you make comments or ask questions about protected characteristics, even if you don’t intend to discriminate. True or false?
For the Answer: See the May 2014 Quiz, Question #1: www.fairhousingcoach.com/article/may-2014-coachs-quiz.
Fair Housing FAQs: Answering Your Questions About Disability Rules
June’s lesson explains fair housing rules based on disability, the most common source of discrimination claims. The Coach gathered the most frequently asked questions about how to comply with the law—and avoid costly discrimination complaints—when dealing with individuals with disabilities.
Federal fair housing law bans disability discrimination in housing, so you can’t exclude applicants or residents because of their disability—or the disability of anyone associated with them—or treat people with disabilities less favorably than others because of a disability. But the law goes further by imposing affirmative duties on communities to provide reasonable accommodations and modifications as 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.
The lesson answers questions about who’s covered—and who’s specifically excluded—under the disability provisions. In general, the law applies to anyone who has a physical or mental impairment that substantially limits one or more major life activities, even if it the disability isn’t obvious or apparent. HUD’s list of impairments includes many physical and mental conditions with few, if any, obvious symptoms to suggest that a particular prospect qualifies under the FHA’s disability-related provisions.
In contrast, the law excludes individuals who are currently engaged in the illegal use of controlled substances, though it does cover those who are recovering from substance abuse. The law also carves out an exception to exclude anyone with a disability whose tenancy would be a "direct threat," so the lesson explains what that means and when it applies.
A community must consider a request for a special parking space even if the resident doesn’t appear to have a disability. True or false?
For the Answer: See the June 2014 Quiz, Question #4: www.fairhousingcoach.com/article/june-2014-coachs-quiz.
Don’t Let Fair Housing Fears Keep You Up at Night
In July, the Coach discusses a subject that you may be losing sleep over but don’t talk about: fear of a fair housing complaint. No doubt, you’re well aware of the potentially devastating consequences faced by communities embroiled in fair housing litigation. With increasing regularity, there’s news of yet another community paying out thousands—sometimes millions—to resolve fair housing disputes.
Or maybe you’ve been confronted with—or heard about—unhappy residents or applicants who have threatened discrimination claims. It may be a simple misunderstanding, or they could be trying to intimidate you into giving them something they want. Whatever the circumstances, you shouldn’t allow fear of a fair housing claim to throw you off your game.
Knowledge is power, so knowing what is—and is not—discrimination will help keep things in perspective if an unhappy applicant or resident accuses you of housing discrimination. By understanding the basics, you’ll be able to recognize if he is raising a legitimate concern, is simply unhappy about a situation, or worse, threatening a discrimination claim to get something that he wants.
Don’t let fair housing fears overcome your basic common sense when dealing with unhappy residents. Take a teammate or manager with you and invite them to share their concerns. Instead of reacting to their accusations, say nothing and allow them to vent. Then follow up on the resident’s concerns—regardless of how you feel about the merits of his complaint. Talk to the people involved, assemble relevant records, and consider getting legal advice about the best way to resolve the matter.
An applicant filed a fair housing claim for disability discrimination after being denied housing based on his poor financial and rental history. The applicant asked the community to grant him reasonable accommodations by ignoring his previous eviction and bankruptcy—and sued when the community denied his requests. The community asked the court to dismiss the disability discrimination claims. What did the court decide?
For the Answer: See the July 2014 Quiz, Question #1: www.fairhousingcoach.com/article/july-2014-coachs-quiz.
How to Reduce the Risk of a Sexual Harassment Claim at Your Community
The August lesson explains fair housing rules banning sexual harassment and offers strategies to help minimize the risk of such a claim at your community. The Fair Housing Act itself doesn’t mention sexual harassment, but courts have consistently recognized sexual harassment—that is, unwelcome sexual conduct—as 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 that 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.
Owners and managers may face liability for sexual harassment, even if they weren’t directly involved in any misconduct. In general, the law holds owners and managers accountable if they knew or should have known about sexual harassment committed by their employees or agents, but fail to do anything to stop it.
HUD takes an even stronger stance, asserting that owners or managers may be liable for the acts of employees or agents regardless of whether they knew or intended the wrongful conduct or were negligent in failing to prevent it from occurring. HUD says that if a manager authorizes a maintenance worker to enter a resident’s unit to make repairs, and the worker sexually harasses the resident, then the management company is legally responsible for the discriminatory actions of the maintenance worker.
A prospect says she’s interested in a unit, but says the rent is higher than she expected. The leasing agent says he’s sure they can work out some arrangement if she’d go out with him. The leasing agent says he’d be doing her a favor by reducing the rent, so it’s not sexual harassment. True or false?
For the Answer: See the August 2014 Quiz, Question #1: www.fairhousingcoach.com/article/august-2014-coachs-quiz.
Complying with Fair Housing Law When Renting to Students
Not so long ago, the major fair housing concern was discrimination against students who faced difficulty finding housing based on a lack of positive credit history and might throw loud parties, cause property damage, and create other potential problems. In some places, it was such a problem that local fair housing measures were adopted to add student status as a protected class.
That may still be true for many students, but there’s been a noticeable upswing in the development and positioning of housing that’s specifically designed to attract students. There are many different options for off-campus housing, but purpose-built student housing communities usually operate in much the same way, which is very different from most conventional housing communities: by renting bedrooms within units—generally one person per bedroom, with shared kitchen and living areas—instead of renting the entire unit.
Still, it’s important to remember that student housing, like all rental housing, must comply with fair housing law. In general, that means that housing providers may not exclude or otherwise discriminate against students—or anyone else—based on race, color, religion, sex, familial status, national origin, or disability.
Student housing providers are risking fair housing trouble when it comes to housing decisions about students with minor children, according to our fair housing experts. Of particular concern are the fair housing implications of the “one student per bedroom” policy so prevalent in purpose-built housing. The experts explain why it’s a potential problem—and offer some strategies to avoid discrimination claims based on familial status.
You could get into fair housing trouble if you refuse to rent to students. True or false?
For the Answer: See the September 2014 Quiz, Question #1: www.fairhousingcoach.com/article/september-2014-coachs-quiz.
Fair Housing Dos & Don’ts for Dealing with Prospects
In October’s lesson, the Coach highlights some big DON’Ts—fair housing problems that often arise in the initial stages of the leasing process. For each one, the lesson offers some DOs—strategies to ensure that your community has the policies, systems, and training in place to minimize the risk of fair housing trouble when dealing with prospects. Here’s a sampling:
DO Apply Policies Fairly and Consistently
DON’T Treat Prospects Differently Because of Protected Class
To ensure compliance with fair housing law, it’s important to focus on fairness and consistency. The law prohibits communities from imposing different terms and conditions of tenancy based on protected class, so you can’t treat prospects differently because of their race, color, religion, sex, familial status, national origin, disability—or any other characteristic protected under state or local fair housing law.
Having written policies and procedures—and applying them consistently—helps to reduce the likelihood that you’ll be accused of acting in a discriminatory or arbitrary manner when dealing with prospects and applicants. The policies reflect that your community doesn’t make decisions about who lives there based on any characteristic protected under federal, state, or local law. The policies also show that everyone is subject to the same terms and conditions of tenancy, including financial requirements, such as fees and security deposits.
DO Focus on Fair Housing Training
DON’T Allow Personal Bias into the Leasing Office
Don’t let personal beliefs, opinions, and judgments influence the way you treat anyone contacting, visiting, or living at your community. It’s essential for everyone to understand the community’s commitment to fair housing principles and that discrimination based on race, color, religion, sex, familial status, national origin, disability—or characteristics protected under state or local law—will not be tolerated.
Conduct regular fair housing training sessions on federal fair housing requirements and any applicable state and local fair housing laws. Emphasize customer service skills, and that you expect employees to treat everyone in the same courteous and professional manner. Once is not enough, according to our fair housing experts, who say that managers should review fair housing key points and updates at least quarterly in team meetings.
Federal fair housing law hasn’t changed in decades, so it’s unnecessary to require experienced employees to attend formal training more than once. True or false?
For the Answer: See the October 2014 Quiz, Question #2: www.fairhousingcoach.com/article/october-2014-coachs-quiz.
Judge for Yourself: Resolving Disputes Over Accommodation Requests
In the November lesson, the Coach invites you to be the judge in recent court cases involving reasonable accommodation requests. Fair housing law prohibits housing discrimination based on disability—and one form of disability discrimination is refusal to make reasonable accommodations for individuals with disabilities.
One case involved a dispute over a community’s rule prohibiting animals over 25 pounds. When a resident got a dog over the weight limit, the community told him to remove it. He responded with letters from his treating psychiatrist, who stated that the dog was an emotional support animal: Due to mental illness, the resident had limitations with social interactions and coping with anxiety and stress, and the dog helped alleviate his otherwise difficult-to-manage day-to-day psychiatric symptoms.
In response, the community sent the first of three letters requesting additional information, including the nature of his disability and how it limited a major life activity, details about his treatment, the specific training the dog received, and why the resident needed a dog over 25 pounds for an equal opportunity to use and enjoy his dwelling. He provided a third letter with additional details from his doctor, but the community sent a second and a third letter requesting even more information.
Rather than responding, the resident sued the community for denying his request for a reasonable accommodation.
Was the community legally required to let the resident keep a dog over its weight limit? Did the community ask for more information than necessary to evaluate the resident’s request to keep the dog as an emotional support animal?
For the Answer: See the November lesson, Request for Assistance Animal—Weight Restriction: www.fairhousingcoach.com/article/judge-yourself-resolving-disputes-over-accommodation-requests.
Maintaining Your Community Without Violating Fair Housing Law
The December lesson discusses fair housing rules when providing residents with maintenance and repair services. It’s unlawful to fail or delay maintenance or repair of rental dwellings based on race, color, religion, sex, familial status, national origin, or disability, according to HUD regulations. That means you can’t deny residents the same level of service because of their race, ethnicity, or any other protected characteristic.
To avoid discrimination claims, it’s important to follow your community’s policy for handling maintenance requests. Many communities have a policy to schedule maintenance requests on a first-come, first-served basis, except in case of emergency. The purpose of the policy is to ensure equal access to maintenance services to all residents, regardless of race, color, religion, national origin, sex, familial status, or disability, and any other protected classes under state and local law. But the policy won’t work unless you follow it consistently. Otherwise, residents may get the impression that you’re treating other residents better—or treating them worse—because they are members of a protected class.
Get to know the disability rules, which require reasonable accommodations to rules, policies, procedures, or services when necessary for individuals with disabilities to use and enjoy their homes. These rules can affect how you do your job—for example, a request to use a certain kinds of paint, or refrain from using certain pest control products, because a resident must avoid exposure to certain chemicals due to a disability.
And your work orders may include requests for other types of accommodations for residents with disabilities, such as installing visual smoke detectors for a resident with a hearing impairment. Or it might be a request to supplement or alter the building’s heating or air conditioning systems for residents with disabilities that make them particularly sensitive to temperature extremes or fluctuations.
While you’re preparing to paint a hallway, a resident asks you about the paint you’re using. She says that paint fumes make her sick and asks you to stop work and get a different kind of paint. Although she doesn’t appear to be disabled, you should contact your supervisor before applying the paint you’ve got. True or false?
For the Answer: See the December 2014 Quiz, Question #2: www.fairhousingcoach.com/article/december-2014-coachs-quiz.