Year in Review: Highlights from the 2016 Lessons
In this Special Issue, the Coach wraps up 2016 with a review of this year’s lessons. Keep it handy—it’s a quick refresher on top fair housing concerns we covered this year. It’s also a helpful index to the full lessons, all of which are available to review or download from FairHousingCoach.com. And you’ll find quiz questions—with a link to the answers—so you can see how much you’ve learned.
A Look Ahead: How HUD’s New Proposed Fair Housing Rules Could Affect Your Community
To kick off the New Year, the Coach’s January lesson previewed HUD’s proposed new rules on harassment and liability for discriminatory practices.
The new rules, which became final in September 2016, added new fair housing regulations that apply nationally to both private and federally assisted communities. The new regulations make it clear that fair housing law bans not only sexual harassment, but also harassment based on any protected class, including race, national origin, disability, and family status. In addition, the new regulations clarify when housing providers and other covered entities and individuals may be held liable for illegal harassment and other discriminatory housing practices.
Editor’s Note: After our January lesson was issued, HUD made some changes to the proposed rules before making them final in September 2016. It’s important to review the final regulations with your legal advisor before making any changes to your policies and procedures on dealing with harassment claims, particularly when they involve tenant-on-tenant harassment.
POP QUIZ: Fair housing law bans not only sexual harassment, but also harassment based on race, color, religion, national origin, sex, disability, or familial status. True or false?
FOR THE ANSWER: See the January 2016 Quiz, Question #1.
How to Handle Disability-Related Requests for Parking Accommodations
The Coach’s February lesson focused on fair housing problems that can arise with disability-related requests for parking accommodations. Fair housing law bans discrimination based on disability, including refusal to grant reasonable accommodation requests by individuals with disabilities who need an exception to your parking policies so they may use and enjoy their housing at the community.
Treat any disability-related request for special parking arrangements the same as you would any other request for an exception to your standard policies—they should all be handled as requests for reasonable accommodations. You may ask the person making the request to submit it in writing or to fill out a form, but you must still consider a reasonable accommodation request even if the resident makes the request verbally or won’t use your preferred forms or procedures for making such requests.
When an applicant or resident asks for a parking space as a reasonable accommodation, you should get the specifics about what he wants. Don’t automatically assume that you have to create a fully accessible space, which requires signage and access aisles, among other things. In most cases, residents are looking for a reserved parking space because of distance—because they can’t walk more than a certain distance from the parking lot to their homes—not because of maneuverability. In most cases, people will be satisfied with a parking space reserved for their exclusive use in a particular location, even though it’s a standard parking spot.
Don’t simply tell residents who are requesting a parking accommodation to use an existing accessible space, because it’s not satisfying their request for accessible parking spot reserved for their exclusive use. Without signage to indicate that the spot is reserved, there’s nothing to stop other residents and anyone else from parking there if they have state-issued parking plates or placards allowing them to legally park in spaces reserved for people with disabilities.
POP QUIZ: Although your community has a policy of providing unassigned parking, an applicant says he wants an assigned parking space near to the building entrance because of a disability. He doesn’t use a cane or appear to have any difficulty walking, but you could trigger fair housing trouble if you ignore his request. True or false?
FOR THE ANSWER: See the February 2016 Quiz, Question #2.
37 Tips to Prevent Fair Housing Trouble at Your Community
The Coach’s March lesson featured 37 tips to help prevent fair housing trouble at your community. The tips offered management strategies to ensure fair housing compliance, along with training tips so your staff understands what they should—and shouldn’t—do to avoid fair housing problems. Here’s a sampling:
Tip #1: Adopt a Fair Housing Policy. For starters, it’s important to have a written fair housing policy to let everyone—from your staff, to prospective and current residents, to fair housing advocates and regulators—know that your community doesn’t tolerate discrimination based on race, color, religion, sex, national origin, disability, familial status, or any other characteristics protected by state or local law. The policy alone won’t guarantee that you’ll never face a discrimination complaint, but it’s often the first document that fair housing officials look for when conducting an investigation. If you do have a problem, the policy sends the message that it’s a rare exception—not a standard practice at your community—an important defense strategy in fair housing cases.
Tip #4: Require Immediate Training for New Hires. Don’t allow new hires to interact with the public until they’ve received at least some fair housing instruction. That applies to all new hires, not just those in your leasing office, according to our experts, who recommend mandatory fair housing training on the first day on the job for everyone—including service techs, maintenance workers, landscapers, and housekeeping staff. As one of our experts put it, “Any company or employer in this industry that doesn’t give fair housing training on day one is at risk.”
Tip #7: Appoint Fair Housing Coordinator. Having one person who is well trained to respond to fair housing complaints may help prevent informal complaints from escalating into lawsuits or HUD complaints. The coordinator can effectively funnel key compliance information and tips to your staff to ensure they understand how to treat prospects and residents fairly under the law. When staff members have questions about fair housing issues, the coordinator serves as the “go to” person who will know how to get the information they need to comply with fair housing requirements.
POP QUIZ: Your staff is shorthanded, so you hire someone to answer the phones. Although she has prior experience working in a leasing office nearby, you should provide her with fair housing training before she starts work. True or false?
FOR THE ANSWER: See the March 2016 Quiz, Question #2.
Behind the Headlines: Lessons Learned from the Latest Fair Housing News
The April lesson takes a close look behind the headlines involving recent fair housing settlements. The headlines often focus on the amounts paid out, but the real news is in the backstory—the events that led up to the complaint against the community. It’s there that you can learn what, if anything, the community could have done to avoid the problem in the first place, or once the problem arose, to prevent it from escalating into a formal fair housing complaint. Here’s an example:
January 2016: Minnesota Community to Pay $35,000 to Settle Dispute Over Resident’s Pit Bull
The owners and managers of a Minnesota community recently agreed to pay $35,000 to settle a lawsuit filed by the Justice Department, alleging that they violated fair housing law by placing undue conditions on a resident’s request to live with her assistance animal and then refused to renew her lease.
The dispute involved the resident of an 800-unit community, which allowed pets and assistance animals, but had a “no dangerous breeds” policy that prohibited pit bulls. The resident, who allegedly had mental health disabilities, didn’t mention that she had a pit bull as an emotional support animal when she moved in. When it was discovered, however, she asked the community to let her keep the dog as a reasonable accommodation; she alleged that the community denied the request.
After a series of negotiations, the parties compromised: She said that the community agreed to let her keep the dog, as long as she agreed to conditions, such as obtaining extra insurance and putting an emotional support vest on the dog whenever he left her unit. The resident said she complied, but a few months later, she said she received notice that her lease would not be renewed.
She moved out and filed a HUD complaint. Without admitting liability, the community agreed to the settlement by paying $35,000 to the resident and adopting a reasonable accommodation policy that specifically addressed requests for assistance animals.
Assistance animals are NOT pets: Regardless of any restrictions in your pet policy, you must consider a request to make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy the community. According to HUD, that includes a request to keep a pit bull as an assistance animal—despite any policies banning so-called “dangerous breeds”—unless there’s evidence that the particular animal poses a direct threat to the safety or property of others.
POP QUIZ: We can require all applicants who have animals to pay an extra fee or an additional security deposit to cover any potential property damage the animal may cause. True or false?
FOR THE ANSWER: See the April 2016 Quiz, Question #3.
Spring Leasing Season: Time for a Fair Housing Refresher
In May, when the spring leasing season was in full swing, the Coach offered a refresher on fair housing law. 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.
Among other things, it’s unlawful to refuse to rent to people or to falsely deny that housing is available for rental based on their race, color, religion, national origin, sex, familial status, or disability. The law also prohibits housing providers from treating people differently than others, for example, by using different qualification criteria or quoting higher rental charges, based on those prohibited factors.
Federal enforcement officials and private fair housing organizations continue to be on the lookout for discriminatory practices by dispatching testers to check for any differences in the way that people were treated based on their race, national origin, and other protected characteristics.
Example: In March 2016, HUD announced that the owners and managers of a California community agreed to a monetary settlement to resolve allegations of 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. The complaint alleged that the managers 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.
POP QUIZ: Only legal immigrants are protected under federal fair housing law. True or false?
FOR THE ANSWER: See the May 2016 Quiz, Question #2.
Q&A on HUD’s New Guidance on Criminal Background Checks
In the June lesson, the Coach reviewed HUD’s latest guidance on the use of criminal records in both conventional and assisted housing communities. The new guidance spells out how HUD will evaluate fair housing complaints in cases where a community refuses to rent or renew a lease based on an individual’s criminal history.
The new guidance stirred up quite a fuss—and a lot of questions about whether—and when—criminal background checks may be used when screening applicants for multifamily housing. With the help of our fair housing experts, the Coach answered some common questions to separate fact from fiction when it comes to criminal background checks.
POP QUIZ: Does the new guidance mean that communities must stop criminal background screening?
FOR THE ANSWER: See the June 2016 lesson.
Case Studies: How the Courts Analyze Reasonable Accommodation Claims
In July, the Coach highlighted recent court cases involving reasonable accommodation requests. More than half of the thousands of fair housing complaints filed each year are for disability discrimination, many involving disputes over reasonable accommodation requests.
Case Study #1: A Man, His Dog, and the Community’s No-Pet Policy
Issue: Did Resident Have a Disability?
That’s the central question in this case, filed by a resident of a condominium community, who asked for an exception to its no pet-policy as a reasonable accommodation so he could keep his dog as an assistance animal.
The resident lived there for many years, but problems arose when the community discovered he had the dog and threatened to fine him unless he removed it. The resident responded with a letter, explaining that he had anxiety and depression and that the dog was an emotional support animal; attached was a letter from his treating psychiatrist. Because the community did not relax its no-pet policy, he said he was forced to sell his unit and move out.
The resident filed a complaint with HUD, which charged the community with disability discrimination by denying his reasonable accommodation request. At an administrative hearing, the resident and his doctors testified that he had a disability—anxiety and depression—and that his symptoms were improved by the presence of an emotional support animal. However, the judge denied the claim, ruling that the resident failed to prove that he had a mental disability that would allow him to keep an emotional support animal as a reasonable accommodation.
On appeal, the HUD Secretary reversed, ruling that the resident had a disability and the community was liable for disability discrimination. After a series of proceedings, the community was ordered to pay him $20,000 in damages for emotional distress and a $16,000 penalty.
The community appealed.
POP QUIZ: Did the court uphold the ruling in favor of the resident—or did the community win the appeal?
FOR THE ANSWER: See the July 2016 lesson, Case Study #1.
Play by the Rules When It Comes to Kids and Their Families
In August, the Coach reviewed fair housing rules protecting children and their families from housing discrimination. The law bans discrimination based on familial status, so it’s unlawful to deny housing to people—or to treat them differently—because there’s a child under the age of 18 in the household. There’s one exception, but it applies only to senior housing communities that meet strict technical requirements to qualify as “housing for older persons.” Otherwise, you could face a fair housing complaint if your community excludes or otherwise discriminates against families with children.
Increasingly, communities are facing complaints for enforcing policies that single out children in some way, particularly rules restricting whether, when, or where children may play outside. Fair housing law doesn’t prohibit communities from adopting reasonable rules governing common areas, but it’s unlawful to enforce rules that have an unreasonable discriminatory effect on families with children.
Example: In June 2016, the Justice Department sued the owners and managers of a Minnesota community for violating fair housing law by enacting and enforcing overly restrictive rules limiting children’s presence in the hallways or common areas. The complaint alleged that the community’s rules prohibited children from being in common areas such as the hallway or yard, except when entering or exiting the building, and assessed a $50 fine for any child in the common areas or front yard. According to the complaint, the rules discriminated against families with children by treating children less favorably than adults in their ability to use common areas.
POP QUIZ: You’ve received a number of complaints about noisy children playing outside, but you could face a fair housing complaint if you enforce a policy requiring adult supervision for all outdoor activities for children under 12. True or false?
FOR THE ANSWER: See the August 2016 Quiz, Question #4.
SUMMER 2016 SPECIAL ISSUE
Conducting Criminal Background Checks: Further FAQs & Follow-up
In our Summer Special Issue, the Coach followed up on the June 2016 lesson on HUD’s new guidance on criminal background checks with highlights from our recent webinar. At the webinar, our fair housing experts addressed legal and practical considerations for housing providers when developing a criminal history screening policy.
The experts urged communities to review and consider whether their current criminal screening policies should be revised to avoid a successful challenge in a fair housing case based on its disparate impact on minority applicants. As one of the experts put it, “There are fair housing advocacy agencies that are actively searching for companies with simplistic and generalized criminal history policies to challenge. We don’t want your companies to be those test cases.”
The Special Issue presented highlights from the webinar presentation—along with FAQs about complying with fair housing law when screening applicants based on criminal history.
Editor’s Note: For more information about the webinar, “Applicant Screening and Criminal Histories: Addressing Disparate Impact Liability under the Fair Housing Act,” visit our website here.
POP QUIZ: What happens if a community denies housing based on a screening report that contains inaccurate information about an applicant’s criminal history?
FOR THE ANSWER: See the Summer 2016 Special Issue, FAQ#2.
Legal Update: Highlights from Recent Fair Housing Cases
In the September lesson, the Coach featured highlights from recent court rulings on fair housing law. For each case, we reviewed what happened and how it landed in court. Then, we explained the fair housing issues involved, and what the court decided and why—to help you avoid similar fair housing problems at your community.
In one of those cases, a court ruled that an assistant fire chief, who claimed he was fired for cooperating with fair housing investigators, could sue the city for retaliation under fair housing law.
According to the complaint, the assistant fire chief worked for a city in Idaho. After being appointed as head of the fire prevention bureau, he said that he ordered an investigation at two housing communities because of fire safety concerns. The assistant chief said he told city officials that he may need to order the building owners either to make improvements or be shut down. Despite their reservations, he did it anyway; he was later placed on leave, and ultimately fired.
He sued, accusing the city of retaliating against him in violation of fair housing law. He alleged that, while still on the job, he was contacted by fair housing advocates about a fair housing investigation at the two housing communities. He said he passed along potential incriminating evidence of fair housing violations to the advocates, which ultimately led to his termination. The city disputed his claims, citing poor management skills and lack of judgment as the reasons for his termination.
The city asked the court to dismiss the case, arguing that he couldn’t sue under fair housing law because his job wasn’t related to housing and the city had nothing to do with the housing rights of anyone living at the two housing communities.
The court refused to dismiss the case, ruling that fair housing law’s broad ban on retaliation could apply to this case. The court explained that the law was violated when a defendant retaliated against someone who “aids or encourages any other person in the exercise or enjoyment of their fair housing rights.” The court said that’s what the assistant chief alleged in his complaint—and it would be up to a jury to decide why he was really fired [Strosnider v. City of Nampa, July 2016].
POP QUIZ: You just hired a new employee, who has been critical of your management staff and your policies and procedures. Coworkers have complained that she isn’t a “team player” and report that they’ve overheard her telling applicants to contact HUD regarding possible discrimination complaints. Since she’s caused nothing but trouble in the short time she’s worked there, you can terminate her employment without worrying about possible liability under fair housing law. True or false?
FOR THE ANSWER: See the September 2016 Quiz, Question #3.
10 Things You Can Do Right Now to Avoid Fair Housing Trouble
In October, the Coach zeroed in on 10 things you can do right now to avoid fair housing trouble. Often, we’re focused on the big picture—and things that take time to put into practice. But for this lesson, we focused on small, immediate steps that you can take right away to cut your risks of a fair housing complaint.
For help, we turned to our fair housing experts. Collectively, they’ve seen and done it all when it comes to fair housing. They know the law—inside and out—and have run countless training sessions, helping communities like yours on how to deal with problems—big and small—that often trigger fair housing complaints. Based on their experiences, the experts weighed in with suggestions about the most important things that community owners and managers can do to ward off fair housing trouble.
#1: Know the Law
To avoid fair housing trouble, the first thing you should do is to know all of the laws applicable to your community. First off, there’s federal law—the Fair Housing Act (FHA), which prohibits discrimination in housing on the basis of race, color, religion, national origin, sex, familial status, and disability. The FHA law applies nationwide to virtually all rental housing communities.
In addition to the federal law, there may be state and local fair housing laws that apply to your community. Often, these state and local laws extend fair housing protections beyond federal requirements to cover marital status, sexual orientation, and source of income, to name a few. The tricky thing is that state and local laws vary—not only between states, but also among the different counties, parishes, cities, town, and other local areas.
Take a Fresh Look at Your Occupancy Standards
In November, the Coach took an in-depth look at occupancy standards, an increasing concern for housing communities. As a general rule, fair housing law does not prevent communities from maintaining reasonable occupancy policies, but it’s unlawful to set overly restrictive occupancy standards that have the effect of excluding families with children.
Across the country, communities have come to rely on the industry standard—“two persons per bedroom”—as a reasonable occupancy standard. It comes from HUD in what’s known as the “Keating memo,” which states that the agency considers two persons per bedroom to be a reasonable standard. But, as the memo points out, that’s not a hard-and-fast rule, and HUD will consider other factors, including bedroom size and other “special considerations,” which may make the two person/bedroom standard unreasonable under the circumstances.
Recently, some communities have faced lawsuits by fair housing advocates challenging the two person/bedroom standard. Though only a few cases have been filed so far, there may be more to come, so it may be a good time to review the occupancy policies at your community.
POP QUIZ: A community may not be found liable for housing discrimination for applying occupancy standards limiting all units to two people per bedroom. True or false?
FOR THE ANSWER: See the November 2016 Quiz, Question #1.
Fair Housing Quiz: Test Your Knowledge of Fair Housing Law
In December, the Coach rounded out the year with a quiz designed to test your knowledge of fair housing law. The rules forbidding housing discrimination can get complicated, so it’s important that you understand fair housing and know how to apply it in everyday dealings with the public. Our fair housing quiz can help clarify how well you understand and can apply fair housing principles. Based on your answers, you’ll be able to identify any potential areas of concern that may merit some further attention or training.
POP QUIZ: Federal fair housing law bans housing discrimination based on… (list all that apply):
b. Sexual orientation.
c. Familial status.
d. Marital status.
i. Source of income.
j. National origin.
FOR THE ANSWER: See the December 2016 Quiz, Question #1.