Year in Review: Highlights from the 2019 Lessons
In this Special Issue, the Coach wraps up 2019 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 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.
How to Avoid Fair Housing Trouble When Dealing with Individuals with Mobility Impairments
In the January lesson, Fair Housing Coach reviewed fair housing rules on dealing with individuals with mobility impairments. The federal Fair Housing Act (FHA) bans discrimination in housing because of race, color, national origin, religion, sex, familial status, or handicap (though the term “disability” is more commonly used).
The rules banning disability discrimination cover a wide variety of mobility impairments. The FHA defines an individual with a disability as “any person who has a physical or mental impairment that substantially limits one or more life activities; has a record of such impairment; or is regarded as having such an impairment.” In general, the law applies to a physical or mental impairments that substantially limit one or more major life activities. Life activities include walking, breathing, performing manual tasks, and caring for oneself, among other things.
Many conditions substantially limiting mobility may fall within this broad definition, including obvious or apparent impairments, such as a paralysis or loss of limbs, that may require use of a wheelchair, cane, or motorized device to ambulate. It also covers nonobvious impairments, such as heart disease, lung problems, arthritis, and many other conditions impeding an individual’s ability to walk due to nerve damage, muscle weakness, or shortness of breath.
Fair housing law bans discrimination against individuals with disabilities, including those with mobility impairments. That means it’s illegal to turn away a prospect simply because he uses a wheelchair due to a mobility disorder. It doesn’t matter whether it’s based on concerns about the community’s image or the costs associated with requests for reasonable accommodations or modifications. You can’t let disability-related stereotypes or concerns about potential liability sway decisions about how you treat applicants and residents with disabilities at your community.
POP QUIZ: When a prospect in a wheelchair asks about available two-bedroom units, you may recommend only accessible or ground-floor units because you can see that he’s obviously disabled. True or false?
FOR THE ANSWER: See the January 2019 Quiz, Question #1.
Answering Your Questions About Reasonable Accommodations & Modifications
In February, the Coach focused on requests by individuals with disabilities for reasonable accommodations and modifications.
Compliance with fair housing law requires more than merely refraining from discrimination against individuals with disabilities. The law goes further by imposing affirmative duties on communities to provide reasonable accommodations and modifications as necessary to allow individuals with disabilities to fully enjoy their dwellings. The law also includes accessibility requirements in the design and construction of covered multifamily communities.
Disputes over requests for disability-related accommodations and modifications frequently lead to fair housing trouble. Though the law has been on the books for decades, the rules governing disability-related accommodation and modification requests are often difficult to apply in the real world. The law requires communities to consider each request on a case-by-case basis, making it nearly impossible to find any cut-and-dried rules to follow. And the many physical and psychological impairments that may qualify as disabilities, along with the wide variety of accommodations that may be requested, could lead to confusion—even misconceptions—about how to handle accommodation requests.
Questions about assistance animals top the list when it comes to fair housing law. It’s not surprising, given that disputes involving assistance animals are among the most common sources of fair housing trouble.
Fair housing law doesn’t prevent communities from adopting and enforcing pet policies: Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as pet deposits or rent charges. Whatever your policy or rules on pets, you must make an exception to allow an assistance animal when one is needed by an individual with a disability to fully use and enjoy the community.
Fair housing law allows not only service dogs, but also any type of animal that provides assistance or emotional support to an individual with a disability. Assistance animals don’t have to be individually trained or certified, and they all have the same legal standing regardless of what type of assistance they provide to an individual with a disability.
POP QUIZ: We have to consider making an exception to our no-pet policy to allow a resident with disabilities to keep an emotional support animal? True or false?
FOR THE ANSWER: See the February 2019 lesson, FAQ #1.
How to Comply with Fair Housing Law in Senior Communities
In the March lesson, the Coach reviewed fair housing rules governing senior housing communities.
The FHA bans discrimination based on familial status. In a nutshell, the familial status provisions make it unlawful to discriminate against applicants or residents because they have, or expect to have, a child under 18 in the household. The familial status provisions also apply to pregnant woman and anyone in the process of securing legal custody of one or more children under 18.
Nevertheless, Congress recognized the need to preserve housing specifically designed to meet the needs of senior citizens, so the FHA includes a limited exception for senior housing communities that qualify as “housing for older persons.” Under this exception, senior housing communities that meet specific requirements may legally exclude families with children.
To qualify for the senior housing exception, communities must adopt policies and procedures to ensure strict compliance with the law’s technical requirements. If you don’t comply with the law’s requirements, then you lose the exemption, which in essence makes your community automatically liable for excluding or discriminating against families with children.
Note that the FHA’s senior housing exemption is limited: It offers protection from federal fair housing claims based upon familial status as long as your community meets the FHA’s requirements to qualify as housing for older persons. It doesn’t exempt senior housing communities from any claims based on race, color, national origin, religion, sex, or disability, or other characteristic protected under state or local law.
POP QUIZ: Senior housing communities that qualify as housing for older persons are immune from liability for discrimination claims under fair housing law. True or false?
FOR THE ANSWER: See the March 2019 Quiz, Question #3.
Complying with State and Local Fair Housing Law
In the April lesson, Fair Housing Coach surveyed state and local fair housing laws. Usually, our focus is on federal law, but it’s necessary to look beyond federal law to comply with any applicable state and local law to avoid fair housing trouble.
Federal fair housing law bans housing discrimination based on seven protected classes: race, color, religion, sex, familial status, national origin, and disability. The FHA applies nationwide, so you must comply with federal law, regardless of where your community is located.
In addition, you must comply with any applicable state and local fair housing laws. Nearly all states have their own fair housing laws. Roughly half cover only the seven federally protected classes, but the others have expanded beyond federal requirements to cover other protected characteristics. Some—like marital status, age, ancestry, and creed—have been on the books for many years, while others—like sexual orientation, gender identity or expression, and source of income—have been added more recently.
In addition, many local governments have adopted fair housing laws that may go beyond federal and state requirements. The laws may vary widely from city to city, even within the same state, so it’s important to understand all applicable laws, particularly if you own or manage communities in more than one state—or multiple locations within a state.
Included in the April lesson is a state-by-state checklist, which should provide a solid foundation on fair housing requirements in each state. Nevertheless, it’s important to get legal advice on the particular state and local laws applicable to your community. And since proposals to expand fair housing protections are being introduced all the time, you’ll need to keep track of any pending or newly enacted laws affecting your community.
Example: In October 2019, California Governor Gavin Newsom signed into law a series of bills to protect tenants from housing discrimination, including SB 222, which bans housing discrimination on account of military or veteran status under the state’s fair housing law. The new legislation also includes SB 329, which prohibits landlords from discriminating against tenants who rely upon housing assistance paid directly to landlords, such as a Section 8 voucher, to help them pay rent.
POP QUIZ: Your community has adopted policies and procedures to comply with federal fair housing law by prohibiting discrimination based upon race, color, religion, sex, familial status, national origin, and disability. 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 April 2019 Quiz, Question #1.
10 Key Steps for Resolving Fair Housing Complaints
In the May lesson, the Coach discussed what to do if your community is ever accused of a fair housing violation. The stakes have never been higher as federal, state, and local fair housing agencies, along with private fair housing organizations, continue to vigorously enforce fair housing laws. It’s costly, not to mention time consuming, to resolve discrimination complaints filed with authorities.
Example: In March 2019, HUD announced that the owners of a Minnesota rental home and a realty company agreed to pay $74,000 to resolve allegations that they refused to rent the house to a family of five adults and six minor children because they are Native American and Hispanic and had minor children. HUD’s charge alleged that the owners and the real estate broker discouraged the multigenerational family from renting the home by offering them less favorable rental terms, including increasing the requested monthly rent by $1,000.
“Denying a family housing because of their ethnicity or familial makeup not only robs them of a place to call home, it violates the law,” Anna María Farías, Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s announcement reaffirms HUD’s commitment to protecting the housing rights of families and ensuring that all landlords comply with the Fair Housing Act.”
POP QUIZ: HUD is investigating a fair housing complaint filed against your community by a resident who accuses you of discrimination after his lease was terminated for nonpayment of rent. The HUD investigator has called for conciliation, but you think the resident filed the complaint just to get back at you for evicting him. What should you do?
a. Refuse to settle because it’ll only reward him for filing a bogus claim.
b. Give him what he wants as long as he goes away once and for all.
c. Participate in conciliation to see if you can settle the claim to resolve the dispute quickly at minimal cost.
FOR THE ANSWER: See the May 2019 Quiz, Question #2.
Hot Topics in Fair Housing Law
In June, the Coach focused on three hot button fair housing issues that have been generating a lot of activity in the courts and federal enforcement agencies.
First up: Sexual harassment. Accusations against high-profile celebrities, politicians, and media moguls, fueled by the #MeToo movement, have raised awareness and pushed the issue into the national consciousness. Likewise, it’s become a top priority for officials in the Justice Department and HUD, which continue to come down hard on those accused of sexual harassment against prospects, applicants, and residents. Meanwhile, the victims of sexual harassment in rental housing continue to turn to the courts, either on their own or with the help of fair housing advocates, to seek redress for their injuries.
Next up: Tenant-on-tenant harassment. Federal fair housing law bans not only sexual harassment, but also harassment based on race, national origin, or other protected characteristics. Most cases against community owners are based on the actions of managers or employees, but HUD regulations—and a recent court ruling—make it clear that communities may face potential liability under fair housing law for tenant-on-tenant harassment under certain circumstances.
Last up: Criminal background checks. A few years ago, HUD released guidelines on how fair housing law applies to the use of criminal records by both conventional and assisted housing providers, and federal officials and fair housing advocates continue to press communities accused of discrimination based on criminal screening policies.
Update: In discussing tenant-on-tenant harassment, the June lesson featured a court ruling that a New York community could face liability under the FHA for an alleged campaign of racial harassment against an African-American resident by his neighbor. A month later, however, the court withdrew its opinion, without explanation. The Coach continues to monitor and will provide updates on this important fair housing issue [Francis v. King Park Manor, Inc., New York, April 2019].
POP QUIZ: You could face a fair housing complaint if you conduct criminal background checks for black or Hispanic applicants but skip them for white applicants. True or false?
FOR THE ANSWER: See the June 2019 Quiz, Question #3.
SUMMER 2019 SPECIAL ISSUE
Test Your Knowledge of Fair Housing Law
In this Special Issue, the Coach offered a chance to test your knowledge of fair housing law. The rules banning housing discrimination may seem straightforward, but the devil is in the details. Fair housing rules can be complicated, so the first step is to test your knowledge of fair housing basics under federal law.
Based on your answers, you’ll be able to identify any potential problem areas that might merit some further attention or training. If, for example, several of your staff members get the same answers wrong, it may help you identify particular topics where further training may be needed. To avoid fair housing trouble, it’s important to ensure that your entire staff understands fair housing—and knows how to apply it in everyday dealings with the public.
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 under similar circumstances.
FOR THE ANSWER: See the Spring 2019 Special Issue, Question #5.
How Communities Fight—and Win—Disability Discrimination Claims in Court
In the July lesson, the Coach highlighted recent court decisions that show how communities can fight court battles to defend themselves against disability discrimination claims under fair housing law. More than half of all fair housing complaints are for disability discrimination, many involving disputes over reasonable accommodation requests. Reviewing how these communities successfully defended themselves in court can help you avoid or defend against disability discrimination complaints at your community.
The FHA requires communities to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford an individual with disabilities an equal opportunity to use and enjoy the dwelling. That doesn’t mean you have to approve all requests for accommodations. The law permits you to deny a request if there’s no disability-related need for the requested accommodation. The same holds true if the requested accommodation is unreasonable because it would impose an undue financial or administrative burden on your community or result in a fundamental alteration of your operations.
POP QUIZ: A resident keeps calling your office to complain about the chemicals used by the landscaping crew. In her most recent call, she says she has developed a special allergy to these products and threatens to sue you unless you start using only organic products. To comply with fair housing law, you must grant her request to stop using the products immediately. True or false?
FOR THE ANSWER: See the July 2019 Quiz, Question #4.
Dog Days of Summer: How to Handle Requests for Assistance Animals
In August, the Coach shepherded in the dog days of summer with a lesson on disability-related requests for assistance animals focusing on the most common type—dogs. The law generally allows communities to set their own pet policies, but housing providers must grant reasonable accommodation requests to allow individuals with disabilities to keep assistance animals when necessary to allow them full use and enjoyment of their homes.
Assistance animals can go by many names—service dogs, therapy 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. In this lesson, we focused on federal fair housing law—the primary law governing use of assistance animals in multifamily housing communities, and we used the umbrella term—assistance animals—to cover all types of animals that provide assistance to individuals with disabilities.
Carefully consider requests for assistance animals—even if it’s for an animal that’s generally prohibited under your pet policies. 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.
POP QUIZ: Our community allows pets, but they can’t be more than 20 pounds. If a resident with a disability says she needs a larger dog as an assistance animal, then we should consider making an exception to the weight restriction as a reasonable accommodation. True or false?
FOR THE ANSWER: See the August 2019 Quiz, Question #4.
Fair Housing Boot Camp: Basic Training for New Hires
In September, the Coach’s lesson offered fair housing basic training for anyone newly hired to work at your community. It’s simple to say that fair housing law bans housing discrimination, but there are pitfalls that sometimes lead even seasoned professionals into fair housing trouble. This lesson reviews the basics so that everyone working at your community—regardless of his or her job—understands what’s okay—and not okay—to do or say when interacting with applicants, residents, and guests at your community.
For anyone new to the rental housing industry, fair housing basic training is a must. Fair housing experts warn against allowing new hires to interact with the public until they receive at least some fair housing instruction. “Any company or employer in this industry that doesn’t give fair housing training on Day 1 is at risk,” warned fair housing expert Anne Sadovsky. That applies to all new hires, not just those in your leasing office, says Sadovsky, who recommends mandatory fair housing training on the first day on the job for everyone—including service techs, maintenance workers, landscapers, and housekeeping staff.
For people with previous experience in the industry, this lesson offers a refresher—and a way for management to ensure that everyone is on the same page when it comes to your community’s commitment to treating everyone fairly, regardless of race, color, or any other characteristic protected under federal, state, or local fair housing law.
For example, it’s important that your staff understands that what they say could come back to haunt them—and your community. Under the FHA, it’s unlawful to make statements that suggest a preference for—or against—anyone based on race, color, religion, national origin, sex, disability, or familial status. The rules apply to any statements—spoken or written—so it’s important to be careful about what you say on the phone, in person, and any other form of communication with prospects, applicants, or residents.
You have to be careful about what you say 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: You overhear a leasing consultant discussing politics in the office, expressing his belief that anyone who doesn’t speak English should go back to where they came from. Since he has a right to his personal opinions, you shouldn’t worry that it could cause fair housing trouble. True or false?
FOR THE ANSWER: See the September 2019 Quiz, Question #2.
What You Should Know About Fair Housing Testing
In the October lesson, the Coach discussed fair housing testing—a tool used by enforcement officials and private fair housing organizations to ferret out unlawful housing discrimination.
Fair housing testing involves paired testers—individuals with similar credentials but of different protected classes—who may contact your community by email, phone, your website, or by a site visit to check for differences in how they’re treated based on their race, national origin, or any other characteristics protected under federal, state, or local law.
Should you be worried that you could be targeted for fair housing testing? Not if you’re prepared—by ensuring your policies comply with fair housing law, treating all prospects fairly and consistently, thoroughly training your employees, and monitoring compliance on your own.
Since it’s unlikely that you’ll know when an email, phone call, or a visit from a prospect is really from a fair housing tester, your best bet is to treat everyone visiting or contacting your community as if he or she is a fair housing tester. Keep personal biases out of the leasing office and treat all prospects with professional courtesy, starting with the initial contact—whether online, in an email, on the phone, or during visits to your property.
POP QUIZ: From the way a prospect is asking questions, you believe she’s really a fair housing tester. You should:
a. Try to get her out the door as soon as possible to avoid any inadvertent slip-ups.
b. Treat her the same as everyone else by taking as much time as necessary to respond to her questions.
c. Give her extra attention by going out of your way to make sure you can’t be accused of any fair housing violation.
FOR THE ANSWER: See the October 2019 Quiz, Question #1.
Complying with Laws Protecting Veterans & Military Servicemembers
In the November lesson, the Coach marked Veterans Day by reviewing the federal, state, and local laws protecting military servicemembers, veterans, and their families from discrimination. The FHA doesn’t ban discrimination based on military or veteran status, but many state and local governments have gone beyond what’s required under federal law to ban discrimination based on veteran and military status.
Meanwhile, veterans with disabilities are covered under the FHA’s ban on disability discrimination. Under the FHA, it’s unlawful to exclude or otherwise discriminate against prospects, applicants, and residents because they, or someone associated with them, has a disability. Among other things, fair housing law requires communities to respond properly to reasonable requests for accommodations or modifications that are necessary to meet the disability-related needs of veterans and returning servicemembers.
Example: In July 2019, HUD charged a Maine community and one of its agents with discrimination for denying a veteran with disabilities the right to keep his assistance animal. In his HUD complaint, the veteran alleged that he called the community in response to an ad on Craigslist. When he told the agent that he had a disability-related need to live with his assistance dog, according to the veteran, the agent allegedly responded, “absolutely not,” and said she regretted allowing a prior tenant to live with his assistance dog because other tenants then wanted to get pet dogs.
“No person with a disability should be denied the accommodation they need, especially individuals who served in the Armed Forces to defend our freedom,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to work to ensure that housing providers meet their obligation to comply with this nation’s fair housing laws.”
POP QUIZ: A prospect visits your community, explaining that he wants a quiet unit since he recently returned from active combat duty. Your community could face a fair housing complaint if you suggest that he would be more comfortable in another community located in a quiet part of town. True or false?
FOR THE ANSWER: See the November 2019 Quiz, Question #1.
How to Avoid Religious Discrimination Claims During the Holidays
In the December lesson, the Coach focused on avoiding discrimination claims based on religion during the holidays—and all throughout the year.
You don’t have to be a “Grinch” to comply with fair housing law. The key is to celebrate the general festivity of the season without promoting a particular religion or particular religious holiday. That way, you’ll satisfy fair housing concerns by showing that your community welcomes everyone—regardless of anyone’s religious practices or beliefs.
You can’t go wrong with secular messages, such as “Seasons Greetings” or “Happy Holidays,” and seasonal displays featuring lights, evergreens, icicles, and snowflakes. You can even include pictures of Santa Claus and signs that say, “Merry Christmas,” which have been recognized by HUD as secularized terms and symbols that don’t violate fair housing law.
Don’t relax your focus once the holidays are over—religious discrimination claims could arise at any time of year. Fair housing law makes it unlawful to exclude or otherwise discriminate against applicants or residents because of their religion. If you explicitly or implicitly suggest that you have a preference for—or against—members of certain religious groups in the way you advertise, market, or operate your housing community, you could be accused of violating fair housing law.
POP QUIZ: You could be accused of a fair housing violation if you wish a resident a “Merry Christmas.” True or false?
FOR THE ANSWER: See the December 2019 Quiz, Question #1.