Year in Review: Highlights from the 2018 Lessons
In this Special Issue, the Coach wraps up 2018 with a review of this year’s lessons and related webinars. 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 and the webinars, all of which are available to our subscribers for review or download at FairHousingCoach.com. And you’ll find quiz questions—with a link to the answers—so you can see how much you’ve learned.
Make 5 New Year’s Resolutions to Avoid Fair Housing Trouble in 2018
In the January lesson, Fair Housing Coach discussed the benefits of reviewing your current fair housing efforts and making some New Year’s resolutions to help your community avoid fair housing trouble in the upcoming year.
It’s notoriously difficult to stick with New Year’s resolutions, so we focused on three key areas: Sexual harassment, disability-related requests for assistance animals, and discriminatory policies aimed at families with children. Of all the potential sources of fair housing trouble, these three seem to have drawn the most attention from federal enforcement officials this year.
Preventing sexual harassment should be #1 on your list of New Year’s Resolutions. Sexual harassment is a form of sex discrimination banned under the Fair Housing Act (FHA). The basic rules haven’t changed much, but it’s becoming increasingly urgent to take all steps necessary to prevent sexual harassment at your community. The Justice Department and HUD continue to come down hard on rental property owners and managers accused of sexual harassment against residents and applicants. It’s not only the perpetrator who faces potential liability for sexual harassment: Owners and managers may face liability for the actions of the perpetrator if they knew or should have known about it but didn’t do anything to stop it.
Editor’s Note: In February 2018, the Coach hosted a webinar on reducing the risks of sexual harassment. In this one-hour webinar, attorney Jessica Weisman explained:
- What constitutes illegal sexual harassment under the Fair Housing Act and HUD rules;
- Who can file a sexual harassment claim;
- When owners can be liable for the sexual harassment committed by their managers, employees, and contractors; and
- How to make sure community policies and procedures comply with the Violence Against Women Act.
A recording of the webinar, “How to Reduce the Risk of Sexual Harassment Claims,” is available on demand on our website at https://www.vendomerealestatemedia.com/product/demand-webinar-how-reduce-risk-sexual-harassment-claims.
POP QUIZ: A prospect says she’s interested in a unit, but that 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 January 2018 Quiz, Question #1.
How to Protect Your Community from Disability Discrimination Claims
In February, the Coach reviewed fair housing rules banning disability discrimination. Understanding these rules—and applying them properly—is key to protecting your community from fair housing trouble.
Under the FHA, it’s unlawful to exclude or otherwise discriminate against people because they—or someone associated with them, such as a family member—has a disability. Under fair housing law, disability means a physical or mental impairment that substantially limits one or more major life activities. The list of impairments broadly includes a wide range of physical and mental conditions, including visual and hearing impairments, heart disease and diabetes, HIV infection, and emotional illnesses. Examples of major life activities include seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking. In sum, the law protects anyone with a physical or mental impairment that’s serious enough to substantially affect activities of central importance to daily life—even if it isn’t obvious or apparent.
Compliance with fair housing law requires more than merely refraining from discrimination against individuals with disabilities. The law goes further to protect individuals with disabilities 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.
POP QUIZ: Although your community has a policy of providing unassigned parking, an applicant says she wants an assigned parking space near to the building entrance because of a disability. She doesn’t use a cane or appear to have any difficulty walking, but you could trigger fair housing trouble if you ignore her request. True or false?
FOR THE ANSWER: See the February 2018 Quiz, Question #3.
Fair Housing in Action: How Fair Housing Rules Work in the Real World
In the March lesson, the Coach showed how fair housing rules play out in the real world by taking a close look at real disputes resolved through the court system in the last year. The people and particular circumstances of the cases may be unique, but they shed light on what you should—or shouldn’t—do to avoid fair housing trouble.
With disability discrimination claims accounting for more than half of all formal fair housing complaints, we started off with the case of a community that fought and won when accused of mishandling a resident’s requests for reasonable accommodations and modifications. The case shows how prompt action—and thorough documentation—can help prove that you acted properly to address disability-related requests.
It’s especially important to keep good records when dealing with requests for reasonable accommodations, such as assistance animals or assigned parking, and reasonable modifications to the unit or common areas. The law doesn’t require communities to adopt formal procedures for handling accommodation requests, but federal guidelines state that it helps to prevent misunderstandings about the nature of the request, and, in the event of later disputes, to provide records that the requests received proper consideration.
POP QUIZ: You can take as long as you want to investigate and respond to requests for reasonable accommodations or reasonable modifications. True or false?
FOR THE ANSWER: See the March 2018 Quiz, Question #1.
How to Face Your Fair Housing Fears and Everyday Dilemmas
In April, the Coach discussed strategies to help you avoid the seemingly small missteps that can lead to costly fair housing claims. You’re probably well aware of the potentially costly ramifications of a fair housing complaint. No doubt you’ve heard about communities forced to pay out thousands—even millions—in damages or settlements, along with costly attorney’s fees, to resolve allegations of housing discrimination.
But there’s no need to fear fair housing law—if you get to know the rules and avoid the blunders that so often lead to fair housing complaints. In this lesson, we highlighted seven strategies to help tame your fair housing fears and minimize the risk of getting hit with a discrimination claim.
Editor’s Note: In March 2018, the Coach hosted a webinar presented by fair housing expert Anne Sadovsky, who shared stories from her 50-year career about the fair housing-related blunders that she’s seen multifamily property owners and managers make—and discussed strategies for avoiding them. A recording of the webinar, “Face Your Fair Housing Fears and Everyday Dilemmas,” is available on demand on our website at https://www.vendomerealestatemedia.com/product/demand-webinar-face-your-fair-housing-fears-and-everyday-dilemmas.
POP QUIZ: Your community has a written policy to comply with fair housing law. You’ve never arranged formal training for your employees, but you know they’re all experienced professionals who would never dream of intentionally discriminating against anyone based on his or her race, color, national origin, sex, familial status, disability, or religion. When you receive a notice about an upcoming fair housing seminar hosted by your local apartment association, what should you do?
a. Throw away the notice, because your leasing staff doesn’t need it.
b. Send only the leasing consultant you hired recently.
c. Send your entire leasing staff.
d. Send all your employees.
FOR THE ANSWER: See the April 2018 Quiz, Question #1.
Fair Housing at 50: Emerging Trends That Could Affect Your Community
In May, the Coach reviewed emerging trends that have the potential to significantly change the legal landscape in fair housing law. With the help of fair housing experts Doug Chasick and Kathelene Williams, we highlighted these trends, explaining what’s happening and how it might affect your community.
A prime example: The wave of state laws legalizing marijuana—for medical and recreational use—even though federal law still considers it to be an illegal drug. These conflicting rules affect communities in different ways, depending on where you’re located and whether you receive federal funding.
Next, we discussed the developing trend to extend fair housing protection to cover discrimination based on sexual orientation and gender identity. Based on recent court decisions, our fair housing experts weighed the chances that the definition of sex discrimination under the federal Fair Housing Act could be expanded to cover discrimination claims based on sexual orientation.
The lesson also reviewed the growing number of local nuisance and crime-free ordinances aimed at reducing criminal activity. The laws vary widely in how they work and what they cover, but our experts explained how complying with these local laws could lead to fair housing trouble.
Finally, we discussed what you need to know about web accessibility—and the wave of lawsuits against retailers and other businesses alleging that their websites aren’t accessible by people with vision impairments. It hasn’t yet affected the multifamily housing industry, but our experts explained why it’s important to get out ahead of the trend.
Editor’s Note: In April 2018, the Coach hosted a webinar addressing how fair housing law applies to emerging issues like legalized marijuana, LGBTQ rights, and local crime-free and nuisance ordinances. In the one-hour webinar, fair housing experts Kathelene Williams and Douglas D. Chasick discussed how fair housing law is evolving to encompass emerging issues, and how claims against multifamily property owners and managers can arise from:
- Medical and recreational marijuana use;
- Sexual orientation and gender identification;
- Local crime-free and nuisance ordinances; and
- Website accessibility.
A recording of the webinar, “Fair Housing at 50: Emerging Trends That Could Affect Your Community,” is available on demand on our website at https://www.vendomerealestatemedia.com/product/clone-demand-webinar-fair-housing-50-emerging-trends-you-should-be-aware.
Facing Your Fair Housing Fears and Everyday Dilemmas: Further FAQs & Follow-up
In June, we followed up on the April 2018 lesson and related webinar on facing your fair housing fears and dilemmas. During the webinar, fair housing expert Anne Sadovsky touched on a variety of fair housing concerns, but two topics drew the most questions from webinar participants: Assistance animals and parking accommodations. In the June lesson, we followed up by presenting Sadovsky’s answers to your FAQs about how to avoid fair housing blunders when handling these requests from individuals with disabilities.
POP QUIZ: Several months after moving into the community, a resident tells you that she’s disabled and asks you to reserve for her an accessible parking space near her unit. You may deny the request because she didn’t ask for the space when she moved in. True or false?
FOR THE ANSWER: See the June 2018 Quiz, Question #3.
Legal Update: Recent Developments in Fair Housing Law
In July, the Coach reviewed recent developments—court rulings, settlements, and enforcement agencies’ actions—in fair housing law. Disability discrimination remains the most frequent source of fair housing trouble, so the lesson highlighted recent cases in which communities found themselves in court to defend how they handled requests for emotional support animals, ramps, and other disability-related requests. Reviewing the cases may help you avoid similar problems at your community.
You’ll also read about a community that successfully defended its handling of a reasonable accommodation request. The case shows not only what to do right when dealing with disability-related requests for exceptions to your rules, but also how to deal with neighbors who object when you make an exception for someone else.
POP QUIZ: Our community recently granted a request for an exception to our no-pet policy so a resident with a disability could keep a dog as an emotional support animal. Now her next-door neighbor keeps calling our office to report that the resident is breaking the rules and asking why she can’t have a dog too. To prevent the neighbor from making trouble, we can tell her about the resident’s disability and need for an assistance animal. True or false?
FOR THE ANSWER: See the July 2018 Quiz, Question #1.
SUMMER 2018 SPECIAL ISSUE
Reasonable vs. Unreasonable Accommodation Requests: How to Tell the Difference
In this Special issue, the Coach presented highlights from our June 2018 webinar on handling reasonable accommodation requests. During the webinar, fair housing expert Doug Chasick reviewed communities’ obligations to provide reasonable accommodations under fair housing law and discussed how to tell the difference between reasonable vs. unreasonable accommodation requests. There’s a lot of confusion about exactly what is required to be in compliance with fair housing law, Chasick said, which often leads to costly legal disputes.
Example: The owners and managers of two California apartment complexes recently agreed to pay $72,000 to resolve allegations of discrimination against a resident with disabilities who required an assistance animal. The complaint alleged that the resident, who had lived at the property for more than 15 years, was subjected to discriminatory statements and retaliation due to the presence of the assistance animal, including false accusations that the animal was disruptive, that it bit maintenance workers, and that it wasn’t a service animal under California law.
Editor’s Note: A recording of the one-hour webinar, “Reasonable vs. Unreasonable Accommodation Requests: How to Tell the Difference,” is available on demand on our website at https://www.vendomerealestatemedia.com/product/demand-webinar-reasonable-vs-unreasonable-accommodation-requests-how-tell-difference.
POP QUIZ: We’re allowed to charge an additional deposit for a service animal if it weighs more than the weight limit that we impose on pets. True or false?
FOR THE ANSWER: See the Summer 2018 Special Issue Quiz, Question #2.
Fair Housing for the Ages: Renting to Millennials, Boomers, and Everyone in Between
In the August lesson, the Coach looked at how fair housing law may affect the way you attract and rent to people of different generations. Although federal fair housing law doesn’t ban age discrimination, we reviewed the ways that fair housing law protects people of particular generations—and how those protections cut across several generations.
Based on their sheer numbers, Millennials and Baby Boomers—the two largest groups—have garnered the most attention. For decades, Baby Boomers—those born between 1946 and 1960—were the largest generation, but they’ve recently been pushed out of the top spot by the Millennials, those born between 1981 and 1996.
Based on generational differences, fair housing laws may affect those in each age group in different ways. Millennials are more racially and ethnically diverse and, based on their age, more likely to be living with minor children, than older generations. When dealing with Millennials, it’s important to keep in mind fair housing rules banning discrimination based on race, national origin, and familial status.
For Boomers—and older generations—the ban on disability discrimination takes on increasing importance as the likelihood of disability increases with age. Fair housing law not only makes it unlawful to exclude or treat people with disabilities differently than others, but also to deny requests for reasonable accommodations and modifications needed by individuals with disabilities to fully enjoy their home.
Meanwhile, multifamily housing continues to be affected by the increasing number of multigenerational households. A record 64 million Americans lived in multigenerational households in 2016, according to a new Pew Research Center analysis of census data. Whether driven by financial considerations, cultural reasons, or health concerns, the rising number of multigenerational families will require increased attention to fair housing rules banning discrimination based on race, national origin, familial status, and disability.
POP QUIZ: A pregnant woman comes to see an available one-bedroom unit, but there’s an elderly couple living next door who used to complain about noise from the previous tenant’s children. To avoid similar complaints about a crying baby, you tell her that the unit is no longer available. Since she doesn’t have a child now, you couldn’t be accused of a fair housing violation. True or false?
FOR THE ANSWER: See the August 2018 Quiz, Question #1.
How to Avoid Discrimination Claims When Advertising Online
The September lesson reviewed the fair housing rules as they apply to advertising your community, most of which is probably done online now. Although communities still run print ads in newspapers and apartment guides and on billboards, a large part of their marketing effort is devoted to promoting the property on: (1) websites that list rental vacancies, like Craigslist; (2) social media sites that show ads to their users and allow properties to create their own homepages, like Facebook; and (3) their own community’s website. Whether you’re creating ads and posting them on, say, Craigslist, updating your community’s website, posting community photos on Instagram, or responding to posts on Facebook, all these activities are considered advertising—and must comply with the advertising rules under fair housing law.
Editor’s Note: In August 2018, the Coach hosted a webinar on how to avoid fair housing trouble when advertising online. In this one-hour webinar, attorney Lynn M. Wilson discussed how some communities have run afoul of fair housing rules banning discriminatory advertising online—and explained how to avoid having discrimination claims arise from your online advertising, including:
- What you should—and shouldn’t—put on your community’s website;
- Pitfalls to avoid when posting ads on Craigslist and similar sites;
- How to control online posts about your community; and
- What to put in a social media policy.
A recording of the webinar, “How to Avoid Discrimination Claims When Advertising Online,” is available on demand at https://www.vendomerealestatemedia.com/product/demand-webinar-how-avoid-discrimination-claims-when-advertising-online.
POP QUIZ: To highlight community events, you plan to post pictures of a summer pool party on your website and Facebook page. The event was attended by older residents, including some in wheelchairs, and several families with young children. But some of your colleagues want to post only the pictures of young women in bikinis laughing and drinking cocktails. What should you do?
a. Post the pictures of the young women laughing to show your community is a fun place to live.
b. Post all the pictures, including those of the children and older residents, to show a cross-section of people who would be welcome at your community.
c. Don’t post any pictures because it’s an invasion of the residents’ privacy.
FOR THE ANSWER: See the September 2018 Quiz, Question #1.
How to Comply with Laws Banning Discrimination Based on Source of Income
In the October lesson, the Coach explained how to comply with fair housing laws banning discrimination based on source of income. Federal fair housing law doesn’t prohibit discrimination based on source of income, but an increasing number of states and municipalities have added these provisions to their fair housing or civil rights laws in recent years.
In short, the ban on discrimination based on source of income means that you can’t exclude or otherwise discriminate against applicants and residents because of where they get their money or financial support. The specifics of the laws vary, but most cover lawful sources of income such as wages, retirement benefits, child support, and public assistance.
Many—but not all—also cover housing subsidies, most notably, the Housing Choice Voucher program, still commonly referred to as “Section 8” vouchers, which is the federal government’s major program for helping very low-income families, the elderly, and disabled individuals to afford housing in the private market. Though federal law generally makes participation in the Section 8 program voluntary for private communities, fair housing laws in some jurisdictions make it unlawful to turn away individuals who use Section 8 housing vouchers to pay their rent.
POP QUIZ: If your community is subject to laws banning discrimination based on source of income, then you may not reject an applicant because she relies on veterans benefits to pay her rent. True or false?
FOR THE ANSWER: See the October 2018 Quiz, Question #2.
Evaluate Your Occupancy Standards to Prevent Discrimination Claims
In November, we reviewed occupancy standards, a topic that remains a source of concern for housing communities, and in recent years, has triggered a series of fair housing complaints. Occupancy standards remain a hot topic because, if not properly considered, they can restrict the housing choices of families with children and lead to a host of problems. As a general rule, fair housing law doesn’t prevent communities from maintaining reasonable occupancy policies, but it’s unlawful to set overly restrictive occupancy standards that exclude 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 the agency will consider other factors, including bedroom size and other “special considerations,” which may make the two-person/bedroom standard unreasonable under the circumstances.
Indeed, lately the two-person/bedroom standard has been coming under fire. In recent months, fair housing advocates have challenged the use of the two-person/bedroom standard where state or local occupancy laws may allow more people to live there based on square footage and other factors. So far, a couple of cases have settled, and it may take years to resolve any still pending.
In the meantime, your company’s occupancy policy has a higher risk of being challenged by fair housing groups if you stick with a rigid one-size-fits-all two-person/bedroom standard without considering local occupancy standards, unit size, and other factors. To avoid being the next test case, consider evaluating your occupancy policy now.
Editor’s Note: In October 2018, the Coach hosted a webinar on how to set and enforce occupancy standards. In this one-hour webinar, attorney Theresa L. Kitay discussed how to update your occupancy policy in light of recent court rulings and with the aim of heading off potential fair housing trouble. The webinar explained how to base occupancy decisions on:
- The needs—and rights—of families with children;
- The ages of the family members;
- The layouts of your apartments;
- The capacity of your building’s systems to accommodate residents;
- Local laws meant to curtail overcrowding; and
- Special circumstances, such as student housing.
A recording of the webinar, “Setting and Enforcing Occupancy Standards That Avoid Fair Housing Trouble,” is available on demand at https://www.vendomerealestatemedia.com/product/demand-webinar-setting-and-enforcing-occupancy-standards-avoid-fair-housing-trouble.
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 2018 Quiz, Question #1.
From the Courts: Recent Developments in Fair Housing Law
For the December 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 a condominium community didn’t violate fair housing law by refusing a resident’s request to leave her walker in the lobby whenever she left the building. The resident couldn’t sue the community for refusing to provide the accommodation she wanted because it offered alternatives that would satisfy her disability-related needs.
In a key ruling, the court said: “A disabled resident has a right to a reasonable accommodation that she needs to use and enjoy her home. But if her landlord offers her an alternative that likewise satisfies that need, she has no right to demand the particular accommodation that she wants.”