Year in Review: Highlights from the 2017 Lessons
In this Special Issue, the Coach wraps up 2017 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.
How to Ensure Fair Housing Compliance When Considering a Smoke-Free Policy
To kick off the New Year, the Coach’s January lesson reviewed how fair housing rules may affect your ability to regulate smoking at your community. There has been a trend toward smoke-free housing policies, which recently got a big boost when HUD issued a final rule requiring all public housing agencies to go smoke-free before August 2018. Though the rule applies only to public housing, it may signal a trend of things to come for conventional housing communities.
Though HUD’s public housing rule—and most smoke-free housing policies—are aimed at tobacco products, you may consider expanding your smoking ban to cover marijuana. Though the drug remains illegal under federal law, many states have decriminalized the use of marijuana for medical or recreational use. Because of the conflict between state and federal law, it’s something of a gray area, so adding marijuana to your no-smoking policy gives you one more way to deal with complaints about marijuana smoke at the community. It might not stop anyone from using other forms of the drug, but it might head off complaints about the secondhand marijuana smoke.
Editor’s Note: In February 2017, the Coach hosted a webinar highlighting HUD’s smoke-free public housing rule and its implications for both conventional and assisted housing communities. At the webinar, speaker Lynn N. Dover offered suggestions for preventing potential fair housing problems with respect to smoking policies and issues related to residents’ use of medical marijuana in those states that have approved its use. A recording of the webinar, “Ensuring Fair Housing Compliance When Adopting a Smoke-Free Policy,” is available on demand here, or at www.VendomeRealEstateMedia.com.
POP QUIZ: Fair housing law doesn’t require communities to restrict smoking, but you could face a fair housing claim based on how you respond to a resident’s complaints about secondhand smoke. True or false?
FOR THE ANSWER: See the January 2017 Quiz, Question #2.
From the Courts: Lessons Learned on Fair Housing Law
For the February lesson, the Coach gathered recent court decisions on fair housing law. For each case, we reviewed what happened and how it ended up in court. Then we reviewed what the court decided—and why—to explain the lessons you can learn to avoid similar problems at your community.
In one of those cases, a court ruled that the manager of rental property violated fair housing law by discriminating against a prospect because she had children, and that the owner was liable for his misconduct.
When the prospect called in response to an ad, the manager allegedly told her that the apartment was available and asked how many people would be living with her. The prospect said three—herself and her two daughters. When told that the girls were aged 7 and 1, the manager allegedly said, “I will not be able to rent to you because of your two small children. There is a disabled person living in the unit below and children that age will drive them nuts.”
The prospect sued, accusing the owner and manager of violating fair housing law. After a series of proceedings, the court sided with the prospect, ruling that the manager discriminated against her because of her family status, and the owner was responsible for the manager’s misconduct. The manager admitted that he told her that he wouldn’t rent to her because of her two small children, though he later explained it was out of concern for the children’s safety and the effect of noise on the elderly disabled resident living downstairs.
Even if that were true, the court said that those concerns did not excuse his discriminatory conduct. To the contrary, HUD regulations prohibit landlords from assigning people to particular floors or buildings because of their familial status. The regulations also prohibit communications to prospects that they wouldn’t be comfortable or compatible with existing residents because of familial status. Since the manager offered no legitimate reason for refusing to rent to the prospect, the prospect was entitled to judgment without a trial.
POP QUIZ: Because of safety concerns about falls from balconies, you can restrict families with children to ground-floor units without violating fair housing law. True or false?
FOR THE ANSWER: See the February 2017 Quiz, Question #2.
Avoid the 7 Biggest Mistakes When Verifying Disability
In March, the Coach focused on the rules limiting when and how you can ask for disability-related information. It can come up any time an applicant or resident requests a reasonable accommodation, but it’s a big issue when dealing with requests for emotional support animals, given the increasing popularity of online certifications, which are often available with little more than a credit card.
Fair housing law generally forbids housing providers from asking applicants or residents for disability-related information, but exceptions can apply under certain circumstances when they request a reasonable accommodation, such as an assistance animal.
You can’t ask for more information if the person has an obvious disability-related need for the animal, but it may be a different story when it’s a request for an emotional support animal. You don’t have to bend the rules unless it’s for an individual with a disability—but it’s usually impossible to tell, just by looking at someone, whether he has a qualifying disability. In circumstances like these, you have the right to verify that the person: (1) has a disability; and (2) has a disability-related need for the animal. But you could trigger a discrimination complaint unless you follow the rules limiting when and how you may ask for such disability-related information.
Editor’s Note: In October 2017, the Coach hosted a webinar reviewing fair housing rules governing when and how to verify disability after receiving a request for a reasonable accommodation. In the one-hour webinar, speaker Theresa L. Kitay explained fair housing disability rules, including:
- Who qualifies as an individual with a disability;
- When it is—and isn’t—appropriate to seek third-party verification of an applicant’s disability;
- What qualifications the person verifying an applicant’s disability should have; and
- What information is considered adequate verification—and how much is “too much.”
POP QUIZ: When screening applicants, it is a violation of fair housing law if you ask any disability-related questions. True or false?
FOR THE ANSWER: See the March 2017 Quiz, Question #1.
Fair Housing 101: How to Comply with Fair Housing Law
In April, the Coach marked Fair Housing Month by getting back to basics with an overview of the Fair Housing Act (FHA), the federal law banning housing discrimination based on race, color, religion, national origin, sex, disability, and familial status. The law has been on the books for nearly 50 years, but it’s still important for everyone working at the community—from the owner on down—to understand and abide by the FHA as well as any applicable state or local fair housing laws.
The April lesson explained fair housing essentials, including what the law says, who must comply, and who is protected. The focus was on federal law, but the lesson also reviewed state and local variations that go beyond federal requirements.
POP QUIZ: In checking an applicant’s references, you learn that he’s been evicted for failure to pay rent at his last two rentals. You may deny the application based on your community’s standard screening policy without violating fair housing law. True or false?
FOR THE ANSWER: See the April 2017 Quiz, Question #2.
Avoiding Legal Trouble When Renting to Immigrants and Noncitizens
In May, the Coach focused on avoiding fair housing trouble when dealing with immigrants and noncitizens. The national debate over immigration reform has been raging for many years now, but it’s taken on a new—and more politically divisive—tone since the last presidential election.
There will no doubt be many changes in store on the national political front, but what won’t change is your obligation to comply with fair housing law, which protects everyone—whether a U.S. citizen, lawful resident, or an unauthorized immigrant—from housing discrimination based on race, color, religion, sex, national origin, disability, and familial status.
In the May lesson, we reviewed how fair housing law applies to immigrant groups, including HUD’s latest guidance on fair housing protections for people with limited English proficiency, and offered seven rules to help avoid fair housing problems when dealing with immigrants and noncitizens.
Editor’s Note: In April 2017, the Coach hosted a webinar reviewing fair housing rules banning discrimination based on national origin. In the one-hour webinar, speaker Douglas D. Chasick covered:
- How to avoid violating HUD and fair housing rules when screening foreign-born applicants for housing;
- How to avoid lawsuits from applicants and residents who claim you discriminated against them on the basis of national origin;
- The challenges of implementing a policy restricting residency to U.S. citizens; and
- Dealing with complaints arising from cultural differences among residents.
POP QUIZ: It’s often difficult to understand prospects who call your office if they have a heavy foreign accent or don’t speak English well, so you usually cut the conversation short and refer them to your website to get information about the community. Although you’re just trying to overcome the language barrier, this could be a problem or discriminatory under fair housing law. True or false?
FOR THE ANSWER: See the May 2017 Quiz, Question #2.
Here’s Why You Should Be Careful with Reasonable Accommodation Requests
In June, the focus was on disability discrimination, the leading cause of fair housing complaints filed each year. The reasons vary, but many stem from disputes over requests for reasonable accommodations—that is, exceptions to the community’s usual rules or policies—for applicants or residents with disabilities. Last year, for example, more than 3,300 of the 8,300 complaints—40 percent—of complaints received by HUD and its state and local counterparts were for failure to make reasonable accommodations.
These complaints often wind up in court, where cases can drag on for years—and be costly to defend. You can’t do much—other than settle—once a case goes to court, but you can take preventative measures to avoid fair housing violations and to resolve disputes before they end up in court.
In this lesson, the Coach reviewed recent fair housing cases alleging disability discrimination. Most involved requests for reasonable accommodations, including the two most common—assistance animals and parking. Here’s an example:
One of those cases was filed against a Tennessee rental housing community. The resident asked for parking accommodations and the construction of a ramp for a household member who used a wheelchair due to a disability. The community offered alternatives, but negotiations broke down, and the residents sued the community for unlawfully denying their reasonable accommodation and modification requests.
The community asked the court to dismiss the case, but the court refused, ruling that further proceedings were needed to determine whether the residents’ requested reasonable accommodations and modifications were reasonable and necessary.
The court also allowed the residents to pursue claims that the community retaliated against them by sending them eviction notices because of their requests for reasonable modifications and accommodations. The community pointed to its legitimate, nondiscriminatory reasons for sending the eviction notices, but the residents alleged that they were simply excuses to cover up discriminatory motives.
Everything You Always Wanted to Know About Sex (Discrimination) … But Were Afraid to Ask
In July, the Coach reviewed fair housing rules banning discrimination based on sex. The basic rules prevent you from giving preferential treatment to either men or women because of their gender, but the law has evolved to outlaw a broad range of discriminatory practices based on sex. Chief among them is sexual harassment, a form of sex discrimination, which can cost thousands—and in some cases, millions—in settlements or court awards, civil penalties, and attorney’s fees—not to mention lasting damage to the reputation of the community, management, and individuals involved.
Editor’s Note: In October, the Justice Department announced a new initiative to protect women from harassment by landlords, property managers, maintenance workers, security guards, and other employees and representatives of rental property owners. As part of the initiative, the department will work to identify barriers to reporting sexual harassment to the department and other enforcement agencies, and will collaborate with local law enforcement, legal services providers, and public housing authorities to leverage their expertise.
POP QUIZ: A male resident has accused a male maintenance worker of sexually harassing him. Your community could face a fair housing complaint for sexual harassment unless you take appropriate action to investigate and resolve the complaint. True or false?
FOR THE ANSWER: See the July 2017 Quiz, Question #3.
SUMMER 2017 SPECIAL ISSUE
You Never Get a Second Chance to Make a First Impression
You never get a second chance to make a first impression, as the saying goes. It means that you should always put your best foot forward whenever you meet someone new: It takes only a few seconds for someone to size you up based on outward appearances—and snap judgments based on negative first impressions are notoriously hard to break.
Whenever a prospect first visits your office, for example, he’s sizing you up within those first early seconds of contact. Whatever your first impressions of the prospect, it’s likely to show in your facial expressions or attitude, which in turn influences his first impressions of you. If yours are negative, he may form his own snap judgment—that you are prejudiced and have discriminatory motives for whatever happens next.
In this Special Issue of the Coach, we gathered advice from our fair housing experts and offered seven strategies to get first impressions to work for you—instead of against you—in your efforts to comply with fair housing law.
POP QUIZ: You could raise concerns about discrimination based on race or national origin just from the way you handle phone calls and emails—even if you don’t know what the prospect looks like.
FOR THE ANSWER: See the Summer 2017 Special Issue Quiz, Question #2.
How to Abide by Fair Housing Law When Dealing with Environmental Concerns
In August, the Coach reviewed how fair housing laws may affect how you handle environmental concerns in the upkeep of your community.
For example, lead-based paint continues to be a problem for communities built before 1978, when the dangers of lead paint—particularly to young children—were recognized and the use of lead-based paint was banned. It might be tempting to avoid renting to those most at risk—young children—but that practice is banned under fair housing law. Regardless of the presence of lead-based paint, it’s unlawful to exclude or discourage families with children under 18 from living there.
Fair housing rules may also come into play when dealing with other environmental concerns, such as mold, bedbugs, secondhand smoke—even the painting or cleaning supplies you use. Unless you’re careful, you could trigger a fair housing complaint based on the presence of hazardous substances, the way you handle reported problems, or the methods used to remedy the offending situation.
POP QUIZ: One of your residents calls your office to complain every time your landscaping crew works near her building. She insists that chemicals used in conventional pesticides and herbicides are dangerous and that you should use only organic products. In her most recent call, she says she has developed a special allergy to these products and threatens to file a discrimination complaint unless you stop using them immediately. You should:
a. Ignore her; she’s probably just exaggerating the situation to get you to “go green.”
b. Stop using the products immediately; fair housing law requires you to grant her request as a reasonable accommodation for her disability.
c. Follow up in accordance with your standard procedures for handling reasonable accommodation requests.
FOR THE ANSWER: See the August 2017 Quiz, Question #2.
The Dog Issue: Busting Common Myths About Assistance Animals
In the September lesson, the Coach separates fact from fiction by busting seven common myths about an increasingly common source of fair housing trouble: requests for assistance animals. There’s a lot of confusion over assistance animals, which can go by many names—service animals, therapy animals, companion animals, emotional support animals—and there are different sets of rules on when, where, and what types of animals may be used by individuals with disabilities in various settings.
Communities have a duty to grant reasonable accommodation requests when needed by individuals with disabilities to use and enjoy their homes. That includes requests for exceptions to your pet policies for assistance animals. No matter what your community’s policies banning or restricting pets, it’s important to understand that assistance animals are not considered pets under fair housing law, so you can’t apply your pet policies to deny a reasonable accommodation request to keep an assistance animal when needed by a resident with a disability.
It sounds fairly straightforward, but it frequently doesn’t work out that way. Fair housing law offers a roadmap to help sort out legitimate requests from those that aren’t, but the whole process can get complicated, often leading to misconceptions about when—and under what circumstances—you must bend the rules to allow individuals to keep assistance animals at your community.
POP QUIZ: Only dogs that are specially trained to perform tasks for individuals with disabilities qualify as assistance animals under federal fair housing law. True or false?
FOR THE ANSWER: See the September 2017 Quiz, Question #2.
How to Prevent Housing Discrimination Claims Based on Race or Color
In September’s lesson, the Coach focuses on the rules banning housing discrimination based on race and color. The fight against racial discrimination and segregation was one of the main reasons that the federal Fair Housing Act was passed nearly 50 years ago.
Since then, the number of complaints of race discrimination, which once held the top spot, have steadily declined, accounting for roughly a quarter of HUD complaints, according to the most recent figures. As the number of race discrimination complaints have declined, much of the focus has shifted to disability discrimination, which now accounts for more than half of all formal fair housing complaints filed with HUD.
Some see the decreasing number of race discrimination complaints as a sign of progress to achieve equal housing opportunities regardless of race. Others say the country still has far to go to eliminate racial discrimination in housing: Though it’s rare to hear reports of blatantly racist practices, they believe racial discrimination has simply gone underground, replaced by more subtle forms of discrimination that are more difficult to detect.
Whatever your point of view, it’s up to you to make sure that everyone is welcome at your community, regardless of his or her race, color, or any other characteristics protected under fair housing law.
POP QUIZ: A white resident may pursue a fair housing claim if the community, its staff, or others harass or discriminate against her because her boyfriend is African American. True or false?
FOR THE ANSWER: See the October 2017 Quiz, Question #3.
Takeaway Lessons from Recent Court Rulings on Fair Housing Law
In the November lesson, the Coach reviewed recent court rulings on fair housing law. For each case, we review the events leading up to the dispute and how it landed in court. Then, we explained the legal issues involved, what the court decided and why, and highlighted the takeaway lessons that you can use to avoid similar fair housing problems at your community.
In one of those cases, a court ruled that a Washington community’s rule limiting studio units to one occupant violated fair housing law based on familial status.
The case began when an advocacy group conducted fair housing testing at the 96-unit apartment complex where two-thirds of the units were studios, all over 400 square feet. According to the group, its testing confirmed that the community rented the studio units only to single occupants. The group sued, arguing that the community’s occupancy restriction had an adverse discriminatory effect on families with children.
The court agreed, rejecting the community’s claim of legitimate, nondiscriminatory reasons to justify the rule. Among other things, the community argued that the units were too small to accommodate more than one person, but the court pointed out that the city code allowed two people to occupy a studio unit as small as 150 square feet.
TAKEAWAY LESSON: Under fair housing law, it’s unlawful to adopt overly restrictive occupancy standards that have the effect of excluding families with children. Whatever your policy, you should be prepared to show that you have substantial, legitimate, nondiscriminatory business reasons for your occupancy policy. Among other things, you should check applicable state and local housing codes, since some include an occupancy provision. Federal fair housing law generally defers to reasonable state and local restrictions on occupancy, so if your occupancy policy conforms to the local codes, it will be difficult for your policy to be challenged.
Editor’s Note: In an update to this case, the court recently ordered the owner to pay more than $127,000 in damages for violating fair housing laws based on familial status by enforcing an occupancy policy allowing only one occupant in studio units.
POP QUIZ: You could face a fair housing complaint for applying occupancy standards that limit all units to two people per bedroom. True or false?
FOR THE ANSWER: See the November 2017 Quiz, Question #2.
Rules Are Made to Be Broken: How One-Size-Fits-All Policies Can Lead to Fair Housing Trouble
The Coach’s December lesson tackled a fair housing myth: You have to treat everyone the same to comply with fair housing law. It’s often true that treating everyone the same helps to counter any perception of discriminatory motives, but there are many important exceptions that you must understand and apply properly to comply with fair housing law. Because of these exceptions, having a one-size-fits-all policy can sometimes hurt rather than help you to avoid fair housing trouble.
Chief among the exceptions are disability-related requests for reasonable accommodations, which by definition involve exceptions to your general policies, procedures, or rules when necessary to enable an individual with a disability an equal opportunity to live in and enjoy housing at your community. Disputes over reasonable accommodation requests, often involving assistance animals or parking accommodations, are the number one reason why communities find themselves on the hot seat to defend themselves from accusations of housing discrimination.
Having a one-size-fits-all approach also can lead to fair housing trouble when it has a discriminatory effect on people protected under fair housing law. One example involves occupancy policies: If they’re too restrictive, they can have a discriminatory effect on families with children. Though it’s generally accepted that two-persons-per-bedroom is a reasonable occupancy policy, that’s only a rule of thumb—and subject to a number of exceptions.
And the law itself offers some exceptions. But it’s important to know whether—and how—an exception applies to avoid fair housing trouble. For instance, the law generally forbids communities from excluding families with children from living there, but there’s an exception for senior housing communities. To claim the exception, however, communities must meet strict technical requirements—unless you do, you’ll invite a fair housing complaint if you deny housing to families with children.
POP QUIZ: Most of your residents are over 55, so you’re allowed to exclude families with children and market your property as an “adult” community under the senior housing exemption. True or false?
FOR THE ANSWER: See the December 2017 Quiz, Question #4.