Year in Review: Highlights from the 2015 Lessons
The Coach wraps up 2015 with a review of all the lessons covered this year. Keep it handy—it’s a quick refresher on top fair housing concerns and a helpful index to the full lessons, all of which are available to review online or download from FairHousingCoach.com. And you’ll also find quiz questions—with links to the answers—so you can see how much you’ve learned.
How to Defend Your Community Against Retaliation Claims
In January, we kicked off the year with a lesson on retaliation—a separate and often overlooked source of liability under fair housing law.
The federal Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, national origin, religion, sex, familial status, or handicap (disability). In addition to outlawing discriminatory rental practices, the FHA bans retaliation by making it unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised her rights under fair housing law—as well as anyone who has helped or encouraged someone to do so.
In a nutshell, the law prohibits housing discrimination—and retaliation against anyone who stands up against it. Fair housing complaints frequently include both types of claims, often because of the timing. If you take action against a resident soon after he files a discrimination complaint, then it’s likely that you’ll be called to defend a retaliation claim—on top of the initial discrimination claim.
One thing that doesn’t matter in retaliation claims is whether the resident had a good reason to file the discrimination complaint in the first place. Under fair housing law, discrimination and retaliation are separate violations, so you could be liable for retaliation if you take adverse action against a resident solely because he filed a discrimination complaint against you—even if the discrimination claim is ultimately dismissed.
Timing is everything in retaliation cases, because you’re liable for retaliation only if the resident proves that you took action against him because of his protected activity. If it’s a short time, then residents often get the benefit of the doubt, which puts the burden on you to demonstrate a legitimate, nondiscriminatory reason for your actions. To counter any attempts to question your motives, you’ll need good records to show that you had a good reason for your actions—which had nothing to do with the resident’s protected activity—and that you’ve used similar measures when dealing with other residents in similar situations.
POP QUIZ: Three years ago, a resident filed a fair housing complaint against your community, but it was later dismissed. Over the past six months, she’s fallen behind on her rent. Despite making partial payments, she still owes three months’ rent. Even though she hasn’t paid her rent again this month, you can’t evict her because of her previous fair housing complaint. True or false?
FOR THE ANSWER: See the January 2015 Quiz, Question #1.
2015 Fair Housing Trends: What They Could Mean for Your Community
The Coach’s February lesson looked at recent trends in fair housing law and how they could affect your community. Among them: the building momentum in many states to legalize marijuana—at least for medical use. At last count, 23 states and the District of Columbia have approved medical marijuana laws, and at least five have gone further by legalizing possession of small amounts of marijuana for recreational use.
These state laws are at odds with longstanding federal law, which still classifies marijuana as an illegal drug with no accepted medical use. Federal officials insist that state marijuana laws don’t change the fact that using marijuana continues to be an offense under federal law, though they have pulled back on enforcement against seriously ill individuals using medical marijuana in states where it’s legal.
Nevertheless, communities may find themselves stuck between the conflicting state and federal laws when it comes to medical marijuana. Most communities ban illegal activities on the premises, including the use of illegal drugs. But if your state has legalized medical marijuana, you may be wondering whether fair housing law requires you to grant a reasonable accommodation request by a resident with a disability who wants to use medical marijuana on your property.
HUD says no, at least in federal public and assisted housing. In a 2011 memo, HUD stated that federal and state nondiscrimination laws don’t require public housing agencies and federally assisted housing providers to accommodate requests by current or prospective residents with disabilities to use medical marijuana.
About a year ago, a court came to the same conclusion, ruling that a federally assisted housing community in Michigan wasn’t required to allow use of medical marijuana as a reasonable accommodation under fair housing law. Although state law permitted use of medical marijuana, the court said that it was trumped by federal law, which classifies marijuana as an illegal drug with no medically acceptable uses [Forest City Residential Management Inc. v. Beasley, 2014].
POP QUIZ: If your state has legalized medical marijuana, then you must grant a reasonable accommodation request by a disabled resident to use medical marijuana at the community? True or false?
FOR THE ANSWER: See the February 2015 Quiz, Question #3.
Dos & Don’ts for Dealing with Residents Who Break the Rules
In March’s lesson, the Coach focused on fair housing problems that can arise when dealing with residents who break the rules. The specifics will vary, but all residents have to abide by some basic rules: They must pay rent, avoid damage to the unit (subject to reasonable wear and tear), and refrain from interfering with the quiet enjoyment of other residents.
But what happens when residents break the rules? They may fail to pay their rent, ignore community policies, damage the property, or disturb their neighbors. Whatever the problem, you have the right to enforce the lease and community rules, subject to applicable landlord/tenant laws. Enforcing the lease doesn’t have to be a fair housing problem—but it can quickly become one if you’re not careful.
The law doesn’t stop you from holding residents accountable for their own bad behavior, but they may accuse you of discrimination when taken to task for breaking the rules. They may claim that you’re falsely accusing them of breaking the rules, or treating them more harshly than other residents for similar infractions, because they are members of a protected class.
Sometimes the rules themselves come under attack. Communities may enforce rules to ensure safety, prevent property damage, and protect the quiet enjoyment of the property by other residents, but not in a way that unreasonably interferes with the right of families with children to use and enjoy the community’s common areas and amenities.
Moreover, fair housing law exempt some residents from following the rules under certain circumstances. As part of the law’s ban on disability discrimination, it’s unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. Because a community’s policies may have a different effect on people with disabilities than on others, HUD says that treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy the premises. So you may be required to make exceptions to your rules—such as no-pet policies or parking restrictions—as a reasonable accommodation for a resident with a disability.
POP QUIZ: If a resident violates the lease and you have solid grounds for eviction, you should give that resident a second chance if:
a. The resident is a member of a protected class and you’re worried he’ll sue you for discrimination.
b. You’re good friends with the resident and you want to give him a break.
c. You give all your residents a second chance in the same situation.
FOR THE ANSWER: See the March 2015 Quiz, Question #1.
From the Courts: Lessons Learned on Fair Housing Law
For April’s lesson, the Coach discussed recent fair housing cases—including what the court decided and why—and lessons learned from each case to help you avoid similar problems at your community.
In one of those cases, a court dismissed discrimination claims against a North Carolina community that a resident filed more than two years after she moved out. While living there, she reported mold in her unit, so the community put her up in a hotel for a month during the remediation process. While the work was ongoing, the resident asked to transfer to another unit, but none were immediately available. The resident later notified the manager that she wasn’t renewing her lease, but she changed her mind after learning of planned renovations for the community. She tried to cancel her notice to vacate, but the manager said she was too late.
After returning to her unit, the resident again had problems with mold, but this time, she was to stay during the two-week remediation process. After a heated phone call with the manager, the resident dropped off her keys, stating that she considered herself constructively evicted. When she met with the manager a few days later, she said she asked for keys to another unit—or a hotel room—but was denied further assistance. After she moved out, the community rented her unit to someone of a different race.
More than two years later, the resident sued the community for fair housing violations, but the court dismissed the case because she waited too long to file her complaint. Lawsuits for violations of federal fair housing law must be filed within two years of the date of the last discriminatory housing practice. Her last contact with the community occurred when she met with the manager and was refused alternative housing, but she filed the lawsuit more than two years later [Armstrong v. Yopp Properties, LLC, February 2015].
UPDATE: In July 2015, the ruling was upheld on appeal [2015 U.S. App. LEXIS 12702].
LESSON LEARNED: Document interactions with residents—and keep them as long as possible. You may need them later to show that you treated them fairly and followed your policies consistently.
POP QUIZ: Once a resident moves out, you don’t need to keep her paperwork. True or false?
FOR THE ANSWER: See the April 2015 Quiz, Question #2.
Reasonable Accommodations & Modifications: What’s ‘Reasonable’?
The May lesson reviewed fair housing law rules on reasonable accommodations and modifications for individuals with disabilities. Disputes over requests for disability-related accommodations and modifications remain at the top of the fair housing complaint process, often because of clashing opinions over the reasonableness of the request. A resident may believe that his request is perfectly reasonable, since it’s what he thinks would best meet his disability-related needs. But you may have a different opinion, maybe because you wonder whether it’s really needed or it’s worth the disruption or expense it entails.
When people dig in their heels about the reasonableness of the request, disputes often end up in fair housing complaints—or in court. Once that happens, it’s difficult to predict the outcome, since it’ll be up to an outside party—an investigator or judge—to assess all the facts and circumstances involved, who’s more believable, and who can back it up with proof. Even if you win, you can face hefty legal expenses, not to mention the drain on your time and attention.
To avoid problems like these, fair housing experts say it’s best to try to negotiate a workable solution that will meet the resident’s disability-related needs—without breaking the bank. Even the negotiations don’t resolve the dispute, you’ll have proof that you tried to reach a solution, which will go a long way if you’re called to defend your actions in court.
POP QUIZ: Any requested accommodation that costs too much is unreasonable. True or false?
FOR THE ANSWER: See the May 2015 Quiz, Question #2.
A Fair Housing Complaint—Now What?
In June, the Coach explained what happens if someone files a fair housing claim against you. The lesson covered FAQs—frequently asked questions—about the fair housing complaint process, such as the different types of fair housing complaints, who may file them, and how they are resolved.
When a complaint arrives, you may be suspicious—even outraged. You’ve probably put in a lot of time and money into your compliance efforts, so it may seem hard to believe that you or your staff has done anything to violate fair housing law. It may seem unfair that you have to devote time and money to deal with what may be a frivolous complaint—or worse, an effort to make a quick buck at your expense.
Whatever your initial reaction, don’t let it affect how you handle a fair housing claim. It’s bad enough to get a formal complaint, but you could make matters worse if you mishandle your response or retaliate against the person who filed the claim against you.
Remember, your efforts to comply with fair housing law aren’t wasted just because you’ve been named in a complaint. Even if you dot all the “i’s” and cross all the “t’s,” you can’t prevent someone from filing a complaint against you. There are no guarantees, but investing your time and effort in developing policies and training staff will help ward off potential claims, and enable you to fully defend yourself with the documents needed in case you do face a formal complaint.
POP QUIZ: You have received a notice of a HUD complaint filed by an applicant, accusing a staff member of discriminating against her based on race. What should you do?
a. Ignore it and hope it goes away.
b. Respond by denying all the charges, since you know the employee would never do such a thing.
c. Alert management and get legal advice about how to respond.
FOR THE ANSWER: See the June 2015 Quiz; Question #1.
The Top 30: Fair Housing Requirements in the Nation’s Largest Cities
In the July lesson, the Coach reviewed fair housing laws in 30 of the nation’s largest cities (based on the size of the population). There’s often a lot of focus on federal and state fair housing laws, but you’ll have to get to know local laws—both city and county—to fully protect your community from discrimination claims.
Federal fair housing law—which bans discrimination based on race, color, religion, sex, familial status, national origin, and disability—applies to virtually all communities, no matter where they’re located. In addition, nearly all states have their own fair housing laws, about half of which mirror federal requirements. In the other half, states have added fair housing protections based on age, marital status, sexual orientation, gender identity, and source of income—to name a few. On top of that, your community may be subject to local fair housing laws, which go well beyond what’s required under federal or state law.
The lesson reviews local fair housing laws in 30 large cities—and includes a checklist of additional protected classes in each city—to help you comply with all applicable fair housing laws. It’s a must-read if you’re in those cities, but it’s helpful even if you’re not, since it shows how there can be different fair housing rules even for communities within the same state.
POP QUIZ: Your community has adopted policies and procedures to comply with federal fair housing law by prohibiting discrimination based upon race, color, national origin, sex, familial status, disability, or religion. As long as you apply those policies fairly and consistently, you’ve done all you can to avoid fair housing trouble. True or false?
FOR THE ANSWER: See the July 2015 Quiz; Question #1.
Complying with Fair Housing Rules Banning Discriminatory Statements
In the August lesson, the Coach reviewed fair housing rules banning discriminatory statements. The rules apply to discriminatory advertising, but there’s more to it than that since they apply to all kinds of statements, including:
- What you say to prospects, applicants, or residents in person or over the phone;
- What you write in notes, texts, or emails as well as community rules and policies; and
- What you put in your advertising and marketing materials—including words and graphics—in print, online, and other media.
Fair housing law prohibits discriminatory statements by making it unlawful “to make, print, or publish…any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, disability, familial status, or national origin.”
You have to be careful about what you say—and how you say it—because the rules don’t require proof of discriminatory intent. Statements are taken at face value to determine whether they suggest a preference for—or against—anyone based on race or any other protected characteristic. Unless you’re careful, you could face a fair housing complaint based on what you say, or write, or post—even if you didn’t mean to express a discriminatory preference.
POP QUIZ: If you run an online ad describing the property as “Perfect for empty nesters,” it could trigger a fair housing complaint. True or false?
FOR THE ANSWER: See the August 2015 Quiz; Question #2.
SUMMER 2015 SPECIAL ISSUE
Q&A on High Court’s Ruling on Disparate Impact Liability
This summer, the Coach released a Special Issue on the latest Supreme Court ruling on fair housing law—and what it may mean for your community.
At stake: whether you could be liable for discrimination—even if it’s unintentional—because your policies or practices have a negative effect on minorities or other people protected under fair housing law. Everyone agrees that federal fair housing law covers intentional discrimination, but there were lingering questions about whether it also applies to what’s known as “disparate impact” discrimination—housing practices that appear to be neutral, but have an unfair effect on members of protected classes.
In late June, the Supreme Court resolved the debate by ruling that the law does indeed cover such claims. It was a big surprise, particularly among court watchers who had predicted the opposite result, but the ruling didn’t change the law since that’s what most federal courts—and HUD—have been saying all along. Nevertheless, it could shake things up by triggering increased scrutiny—and legal challenges—by federal enforcement officials and private fair housing advocates against multifamily housing communities for housing practices thought to have a disparate impact on protected groups.
Legal Update: Recent Court Rulings on Fair Housing Law
In September, the Coach reviewed recent court rulings involving discrimination claims filed against communities by their residents. There’s often a lot of attention on avoiding fair housing trouble during the leasing process, but those concerns don’t end once the lease is signed. Fair housing law protects not only prospects and applicants who are denied housing, but also current and former residents who claim unfair treatment because of their race, ethnicity, or other protected class.
In one of the cases, a federal appeals court ruled against a resident who claimed that she was subjected to a racially hostile housing environment while renting a unit at a condominium community in Kansas. The resident, who was African American, had a number of run-ins with neighbors about noise coming from her unit. One of the neighbors sued her, and when she didn’t respond, the court issued a default judgment, which stated that the resident regularly and intentionally engaged in or permitted offensive or unlawful activities with substantial certainty that such activities would interfere with her neighbor’s use and enjoyment of her property.
The resident sued the community’s homeowners association (HOA) for creating a hostile housing environment, citing the dispute about the noise and other incidents, which she claimed were all racially motivated. The court dismissed the case.
On appeal, the court affirmed, ruling that the resident failed to prove that the community created a hostile housing environment because of her race. Although she was a member of a protected class, she didn’t prove that she suffered harassment because of her race. There were no allegations that anyone from the HOA used racial slurs against her or that any of the incidents were related to her race [Jackson v. Park Place Condominiums Association, July 2015].
UPDATE: In early September 2015, the resident asked the U.S. Supreme Court to hear an appeal [Shepards: Petition for certiorari (Sep. 4, 2015) (No.15-5974)].
POP QUIZ: A resident has complained about racially discriminatory comments and conduct by the resident in a neighboring unit. What should you do?
a. Nothing; you’re not liable for disputes between neighbors.
b. Tell her to stop bothering you about neighborhood squabbles.
c. Investigate, and if warranted, take steps to address the problem.
FOR THE ANSWER: See the September 2015 Quiz; Question #1.
Dos & Don’ts When Handling Requests for Assistance Animals: Part 1
In October, the Coach presented Part 1 in a two-part series on assistance animals. Disability discrimination claims account for more than half of all fair housing complaints, often triggered by disputes over reasonable accommodation requests involving assistance animals.
There’s a lot of confusion over assistance animals, which can go by so many names—service animals, therapy animals, companion animals, emotional support animals—and the different sets of rules on when, where, and what types of animals may be used by individuals with disabilities in various settings.
To cut through the confusion, the series focused on federal fair housing law—the primary law governing use of assistance animals in multifamily housing communities. To keep things straight, we used the umbrella term—assistance animals—to cover all types of animals that provide assistance to individuals with disabilities.
In Part 1, the lesson explained who qualifies as an individual with a disability and when you must make a reasonable accommodation to your pet policies to allow an assistance animal at the community. The reasonable accommodation provisions come into play whenever an individual with a disability wants to use an assistance animal in communities that either prohibit or impose restrictions or conditions on pets at the community. Like all reasonable accommodation requests, the determination of whether an individual has a disability-related need for an assistance animal involves an individualized assessment, according to HUD.
Remember, assistance animals are not pets under fair housing law. They’re animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability, according to HUD.
Since they provide disability-related services, assistance animals are considered to be more like human aides who provide necessary services, assistance, or support for individuals with disabilities. Just as it would be unlawful to refuse access to an aide who provides needed assistance to a resident with a disability, it’s unlawful to ban an animal that provides the resident with similar assistance. Nor can you charge an extra fee or pet deposit as a condition of granting a reasonable accommodation for an assistance animal.
POP QUIZ: The community must consider a request for an assistance animal even if the resident doesn’t appear to be disabled. True or false?
FOR THE ANSWER: See the October 2015 Quiz, Question #2.
Dos & Don’ts When Handling Requests for Assistance Animals: Part 2
In the November lesson, Part 2 discussed common problems involving requests for assistance animals, such as whether you can apply pet policies limiting the size, breed, or number of pets allowed, or impose conditions, such as payment of pet deposits, to cover potential damage caused by an assistance animal.
It’s common for communities to allow only certain types of pets or to exclude animals based on their size or breed, but remember—these limits don’t apply to assistance animals. HUD says that breed, size, and weight restrictions may not be applied to an assistance animal. Nor can you reject a request simply because it’s for an animal other than a dog. Though dogs are the most common type of assistance animal, other animals can also be assistance animals, according to HUD.
The law permits communities to deny a request for an assistance animal if it would pose a direct threat to the health and safety of others—or would cause substantial physical damage to the property of others—which can’t be reduced or eliminated by another reasonable accommodation. But you can’t exclude an assistance animal based on the blanket assumption that all animals—or animals of a specific breed or size—pose a direct threat to health and safety or would cause property damage.
Instead, HUD says that you must make an individual assessment of the specific animal involved based on objective evidence about the specific animal’s actual conduct—not on mere speculation or fear about the types of harm or damage an animal may cause—or instances of harm or damage that other animals have caused. Even if there is such evidence, you must consider whether the threat can be eliminated or reduced with some other reasonable accommodation, according to HUD.
POP QUIZ: Our community allows pets, but we don’t allow pit bulls and certain other dog breeds that we consider to be dangerous. Despite the policy, we must consider a reasonable accommodation request from an applicant who says she’s disabled and needs her pit bull as an assistance animal. True or false?
FOR THE ANSWER: See the November 2015 Quiz, Question #2.
FALL 2015 SPECIAL ISSUE
Answering Your Questions on Assistance Animals
This fall, the Coach followed up on the two-part series on assistance animals with a Special Issue to answer reader questions and discuss recent developments in fair housing law.
Among other things, the lesson discusses what to do if you suspect a resident is trying to pass off his pet as an assistance animal to get around a community’s no-pet policy. In some cases, the resident has paperwork to document his claim, but it appears to be something he’s gotten online, not from his own healthcare provider. If that’s the case, you may be wondering how to handle the resident’s reasonable accommodation request.
The problem of so-called “fake” service and assistance animals has been gathering attention, with news reports about people bringing all sorts of animals with them in public, insisting that they’re service animals under the ADA. Many have paperwork and assorted paraphernalia from online sources purporting to verify that they have a disability and their animal qualifies as a service or assistance animal. Lawmakers are taking notice, leading many states, most recently in Florida, to make it a criminal offense to fraudulently represent that a person has the right to be accompanied by a service animal.
Many in the multifamily industry hope these laws will gain traction to prevent abuse involving requests for assistance animals under fair housing law. In the meantime, it’s important to take all requests for assistance animals seriously and to comply with HUD guidelines—regardless of your suspicions about the merits of the claim.
If the resident doesn’t have an apparent disability, you may ask for reliable disability-related information that’s necessary to verify that he has a disability that qualifies under the FHA—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal. And, unless it’s obvious, you may ask for documentation that he has a disability-related need for an assistance animal—that is, whether the animal performs work or does tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability.
- Fair Housing Act: 42 USC §3601 et seq.