Year in Review: Highlights from the 2020 Lessons
This month, Fair Housing Coach wraps up 2020 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.
2020 Trend Watch: Recent Developments in Fair Housing Law
To kick off the New Year, the Coach reviewed recent developments—court rulings, settlements, and enforcement actions—in fair housing law. Staying on top of current developments may help you to avoid common problems that so often lead to fair housing trouble.
We started off by reviewing recent court rulings, including a case involving a landlord’s potential liability under fair housing law for tenant-on-tenant harassment. In another case, the issue was whether a community must consider a disability-related reasonable accommodation request to accept other forms of income to satisfy its minimum income standards.
We also reviewed several recent settlements, including a landmark $1.1M settlement to resolve a dispute over a New York community’s alleged criminal record ban. Another settlement resolved a resident’s claims that a California landlord violated her privacy by telling neighbors about her request for an assistance animal.
Finally, we reported on enforcement actions, including HUD Secretary Ben Carson’s call for an investigation into websites selling assistance animal certifications, registrations, and other documentation. In a letter to Chairman of the U.S. Federal Trade Commission (FTC) Joseph J. Simmons and Director of the Bureau of Consumer Protection Andrew Smith, Carson asked the FTC to investigate these websites for compliance with federal laws that protect consumers from unfair and deceptive acts or practices.
“These certificates are not an acceptable substitute for authentic documentation provided by medical professionals when appropriate,” Carson said in a statement. “These websites that sell assistance animal certificates are often also misleading by implying that they are affiliated with the federal government. Nothing could be further from the truth. Their goal is to convince individuals with disabilities that they need to spend hundreds of dollars on worthless documentation to keep their assistance animal in their homes.”
10 Essential Rules for Avoiding Fair Housing Trouble
In the February lesson, the Coach highlighted 10 essential rules to help you to comply with fair housing law. Housing discrimination has been outlawed for more than 50 years, but all too often communities still find themselves on the wrong side of the law—and are forced to pay out thousands—and in some cases, millions—in settlements or court awards, civil penalties, and attorney’s fees—to get themselves out of fair housing trouble.
Example: In September 2019, the owners and managers of two New York apartment buildings agreed to pay $272,000 to resolve allegations of racial discrimination against African-American prospects in violation of federal, state, and local fair housing laws. The Fair Housing Justice Center filed the lawsuit based on the results of a two-year investigation involving white and African-American testers posing as prospective renters. The complaint alleged that the white testers were repeatedly shown available units and encouraged to apply, while the African-American testers were routinely told that no apartments were available for rent.
Taking it from the top, our essential fair housing rules include:
Rule #1: Don’t Discriminate Based on Race or Color. Be sure to give prospects the same information about availability and the terms and conditions of tenancy, such as screening criteria, rental terms, and any other relevant information. Under the FHA, it’s unlawful to deny housing based on an applicant’s race or color by providing different and false information about terms, conditions, and availability of rental properties.
Rule #2: Don’t Discriminate Based on National Origin. The FHA prohibits discrimination based on national origin, which means the geographic area in which a person was born or from which his or her ancestors came. National origin discrimination means treating people differently because they or their family are from outside the United States, or because they have physical, cultural, or linguistic characteristics of persons from a foreign geographic area.
Rule #3: Don’t Discriminate Based on Religion
The FHA prohibits discrimination based on religion, so it’s unlawful to refuse to rent to people, or to treat them differently, because of their religion. For example, it’s unlawful to show favoritism toward applicants who share your religious beliefs—or bias against—those of other religious faiths.
Q: Under the FHA, it’s unlawful to deny housing to people from other countries, but you could also face a fair housing complaint for refusing rent to applicants who can’t speak English. True or false?
FOR THE ANSWER: See the February 2020 Quiz, Question #2.
Proceed with Caution When Responding to a Hoarding Problem
In the March lesson, Fair Housing Coach tackled a challenging problem—resident hoarding. In multifamily housing communities, extreme cases of hoarding can pose serious health and safety hazards: not only to those living in the affected unit, but also to neighbors who may share walls, ceilings, floors, hallways—even HVAC systems.
Unfortunately, it’s often difficult to detect because people with a hoarding problem rarely seek help on their own. By the time it’s discovered, the problem may be so out of hand that your first impulse is order the resident to immediately clean up or move out.
But that approach could land you in fair housing trouble. Hoarding disorder is a recognized mental health impairment, so the resident would probably qualify as an individual with a disability under fair housing law, triggering your responsibility to try to work out a reasonable accommodation to allow him to continue to live there. There are limits to your obligations toward the resident, but you’ll have to tread carefully—and document your efforts to work out a resolution—to prevent or defend a potential fair housing complaint.
Q: After discovering hoarding problems in a resident’s unit, you’ve patiently extended the deadline twice to give him more time to clean up the unit. Since he’s repeatedly failed to live up to his promises, you may refuse his request for additional time and initiate eviction proceedings without worrying about a fair housing complaint. True or false?
FOR THE ANSWER: See the March 2020 Quiz, Question #2.
How to Comply with HUD’s New Guidance on Assistance Animals
In April, the Coach reviewed HUD’s new guidance on how to assess requests to have an animal as a reasonable accommodation under fair housing law. The new guidance replaced HUD’s previous 2013 guidelines on assistance animals. If your policy was based on the old guidelines—which are no longer in effect—then you should take the time to review your policies to ensure that they comply with the new guidelines.
The new guidance, sometimes referred to as the “Assistance Animal Notice,” includes two attachments. The first, “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act,” recommends a set of best practices for complying with federal fair housing law when assessing applicants’ or residents’ accommodation requests involving animals in housing.
The second attachment, “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing,” summarizes the information that a housing provider may need to know from a healthcare professional about an individual’s need for an assistance animal in housing.
“Countless Americans rely on assistance animals to fill a void, providing individuals with disabilities with the means to have a home that supports their quality of life,” HUD Secretary Ben Carson said in a statement. “In my many discussions with housing providers and residents impacted by the need for assistance, I recognized the necessity for further clarity regarding support animals to provide peace of mind to individuals with disabilities while also taking in account the concerns of housing providers. Today’s announcement responds to the ambiguity surrounding proper documentation for assistance animals with clarity and compassion to provide an equal opportunity for a person living with a disability to use and enjoy their home.”
In this lesson, we enlisted the help of our fair housing experts to highlight what has—and hasn’t—changed under the new guidelines and offer tips to help your community comply with fair housing law when evaluating reasonable accommodation requests for assistance animals.
Coach’s Tip: For more information on this topic, you can view our recent one-hour webinar, “How to Handle Requests for Assistance Animals,” presented by attorney Theresa L. Kitay, here.
10 Dos & Don’ts for Dealing with Families with Children
In May’s lesson, the Coach highlighted the fair housing problems that can arise when dealing with families with children. Fair housing law bans discrimination against families with children, but there’s more to it than that. You could get into fair housing trouble from the way that you advertise your property, show units, apply occupancy standards, and enforce community rules.
The Number 1 Rule: DON’T Deny Housing Because There’s a Child in the Household. Though it’s been unlawful for more than 30 years, communities continue to run afoul of fair housing provisions by denying housing to families with children.
It’s important to remember that familial status is on the same footing as race and any of the other protected classes under fair housing law. Just as it’s unlawful to turn people away because of their race, you can’t turn prospects away because they have one or more children living with them. It doesn’t matter whether you—or your current residents—would prefer to be living among adults; 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. In fact, simply expressing a preference against families with children can lead to a fair housing complaint.
Example: In February 2020, the owners of California community and its leasing agency agreed to pay $10,000 to resolve allegations that its leasing agent denied a father of two children the opportunity to rent a condominium. In his HUD complaint, the father alleged that he was denied the opportunity to rent the condo because his two young daughters would be living with him part-time. According to the father, the leasing agent refused to consider his application for the unit, saying, “I don’t want to waste your time or mine. Sorry.” The housing providers denied that they discriminated against the family.
“Families today face enough challenges without being denied a place to call home because they have children,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue working to ensure that housing providers meet their obligation under the Fair Housing Act to treat home seekers with children equally.”
Q: An applicant and his pregnant wife want to rent an available one-bedroom unit. You’re concerned about potential noise complaints about a crying baby, but you could be accused of discrimination based on familial status if you tell them that the unit is no longer available. True or false?
FOR THE ANSWER: See the May 2020 Quiz, Question #1.
How to Comply with Fair Housing Law While Dealing with COVID-19
In June, the Coach discussed how to avoid fair housing trouble while dealing with the COVID-19 pandemic. For months now, the nation has been confronting the public health emergency caused by the new coronavirus.
The CDC has warned against stigmatizing people or groups because of COVID-19. Stigma is discrimination against an identifiable group of people, a place, or a nation, according to the CDC. Stigma is associated with a lack of knowledge about how COVID-19 spreads, a need to blame someone, fears about disease and death, and gossip that spreads rumors and myths.
But, as the CDC pointed out, stigma hurts everyone by creating more fear or anger toward ordinary people instead of focusing on the disease that’s causing the problem. And in multifamily housing communities, stigma against particular people or groups because of COVID-19 could also lead to fair housing trouble
Q: We just found out that a resident tested positive for COVID-19. We can’t get into fair housing trouble if we tell all the residents on her floor about it so they can take extra precautions to avoid exposure. True or false?
FOR THE ANSWER: See the June 2020 Quiz, Question #2.
How Communities Successfully Defend Against Disability Discrimination Claims
In the July lesson, Fair Housing Coach highlighted recent court rulings to show how communities successfully defend themselves from disability discrimination claims in court. Though the law has been on the books for decades, disputes over requests for disability-related accommodations and modifications frequently lead to fair housing trouble.
Fair housing law requires communities to make reasonable accommodations to rules, policies, practices, or services to enable an individual with a disability to fully enjoy use of the property. HUD defines “reasonable accommodation” as a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling. Common examples include a request to keep an assistance animal in a community with a no-pet policy or a request for a reserved parking spot in a community that doesn’t have assigned parking.
Fair housing law requires owners to permit applicants or residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises. Under the FHA, a “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, to allow that person full enjoyment of the premises. Communities must consider requests for reasonable modification not only to the interior of a unit, but also to lobbies, main entrances, and other public and common use areas of buildings.
Q: Your community may regulate smoking in common areas, but you could face liability under fair housing law if you adopt policies to ban smoking inside individual units. True or false?
FOR THE ANSWER: See the July 2020 Quiz, Question #2.
How to Fulfill Your Duty to Prevent Race Discrimination
In August, the Coach focused on fulfilling your obligation to comply with fair housing rules banning discrimination based on race and color. Spurred by the death of George Floyd, protests across the country have rekindled attention on the Black Lives Matter movement and racial inequities involving policing practices and the criminal justice system.
The fight against racial discrimination and segregation was one of the main reasons that the federal Fair Housing Act was passed more than 50 years ago. When the landmark legislation was passed in 1968, Congress declared that ensuring fair housing throughout the United States was a national policy of the “highest priority.” The goal of the new law was to replace racially segregated neighborhoods with “truly integrated and balanced living patterns.”
In the years that have passed since then, the number of complaints of race discrimination, which once held the top spot, have steadily decreased. Some see the decreasing number of race discrimination complaints as a sign of progress to achieve equal housing opportunities regardless of race. But 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, fair housing advocates believe racial discrimination has simply gone underground, replaced by more subtle forms of discrimination that are more difficult to detect.
Example: In March 2020, the Fair Housing Justice Center (FHJC) announced a $300,000 settlement to resolve a fair housing case against the owners, broker, and building superintendent of a 48-unit community in a predominantly white neighborhood in Brooklyn. The lawsuit, filed the FHJC and five African-American testers, alleged that the community racially discriminated against African-American prospects in violation of federal, state, and local fair housing laws. According to the FHJC, its investigation found that white and African-American testers were treated very differently based on race. The FHJC alleged that for years, white testers were repeatedly shown available apartments at the building while no African American testers ever saw an apartment. The defendants denied liability but agreed to the settlement.
FHJC Executive Director Fred Freiberg stated, “African-American renters and home buyers continue to face persistent and pervasive racial discrimination in housing fifty-two years after the passage of the federal Fair Housing Act. Over the next few years, the FHJC will focus more of its investigative and enforcement resources on ferreting out racially discriminatory housing practices throughout the New York City region.”
Q: An African-American couple visits the leasing office asking about available one-bedroom units. There are two units available, but the leasing agent shows the couple only one. She doesn’t mention the other unit because she has overheard the resident in the neighboring unit using racial slurs. Since she’s trying to protect the couple from race discrimination, her actions would not violate fair housing law. True or false?
FOR THE ANSWER: See the August 2020 Quiz, Question #2.
Dos & Don’ts for Handling Reasonable Accommodation Requests
In September, Fair Housing Coach focused on reasonable accommodation requests by individuals with disabilities. Fair housing rules governing reasonable accommodation requests are often difficult to apply in the real world. The law requires communities to consider each request on a case-by-case basis, so requests for disability-related accommodations frequently lead to fair housing trouble.
Example: In May 2020, the owners and managers of a Pennsylvania community agreed to pay $80,000 to resolve a HUD complaint for discrimination. In their complaint, two residents with mobility impairments alleged that the community refused to grant their request for a reserved parking space or to allow them to move to a first-floor unit, and retaliated against them for making the requests. The owners and managers denied the allegations, but agreed to the settlement.
“For persons with disabilities, a task as basic as walking from a parking lot to their home or climbing a flight of stairs can be very difficult,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s settlement sends the clear message that HUD is committed to ensuring that housing providers meet their obligations to comply with the requirements of our nation’s fair housing laws.”
Q: Your community has a policy of providing unassigned parking spaces to residents on a first-come, first-served basis. One of your residents, who uses a cane to walk, asks you to assign her an accessible parking space close to the entrance to her unit. Since there are unassigned accessible parking spaces near the entrance to her unit, you don’t have to grant her request. True or false?
FOR THE ANSWER: See the September 2020 Quiz, Question #1.
Legal Update: Recent Developments in Fair Housing Law
In the October lesson, the Coach highlighted recent developments in fair housing law on the state and local level. Federal law, which applies nationwide, bans housing discrimination based on seven protected classes: race, color, religion, sex, familial status, national origin, and disability.
When it comes to state laws, roughly half cover only the seven federally protected classes, but the others have expanded fair housing laws to add 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 general, state laws banning housing discrimination based on lawful source of income prohibit communities from turning away people, or otherwise discriminating against them based on how they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance.
Many—but not all—also cover housing subsidies, most notably Section 8 housing vouchers. The name was changed to the Housing Choice Voucher program, but many still use “Section 8” to refer to the federal government’s major housing assistance program. Federal law does not require participation in the Section 8 program, but source-of-income laws in many states make it unlawful to refuse to rent to Section 8 voucher holders.
Since last year, when the Coach last covered state and local fair housing law, four states have added these protections, while a fifth—California—has expanded its source-of-income law to cover voucher holders. The October lesson reviewed these new laws and highlighted enforcement efforts in other states, which illustrate just how costly it can be to run afoul of these state law protections.
In this lesson, we also reviewed new laws in two states—New York and Florida—related to disability-related requests for emotional support animals. The two approaches are a study in contrasts: In New York, lawmakers reinforced the rights of individuals with disabilities to request reasonable accommodations for emotional support animals, while Florida lawmakers took aim at fraudulent emotional support requests by beefing up documentation requirements and imposing penalties on applicants and residents who misrepresent their pets as emotional support animals—and on healthcare providers who help them do so.
Q: Your state or local fair housing law bans discrimination based on source of income, so that means you must accept any prospect with a Section 8 housing voucher who otherwise meets your screening criteria. True or false?
FOR THE ANSWER: See the October 2020 Quiz, Question #3.
Beware of ‘Drive-By’ Accessibility Testing
In the November lesson, the Coach aimed to raise your awareness about “drive-by” accessibility testing. Even if you’ve never heard of it, drive-by accessibility testing could uncover a potentially expensive source of liability lurking in plain sight at your community.
Drive-by accessibility testing occurs when a tester drives by a housing community (or a public establishment) and determines that the entrance to the building or the parking lot doesn’t meet applicable accessibility standards. In most cases, the tester doesn’t even need to get out of the car to measure anything—it’s an obvious violation to someone who knows the rules.
No matter how it’s discovered, claims involving violations of federal accessibility requirements are notoriously difficult and expensive to resolve. A violation uncovered at one community can quickly expand to involve an investigation into accessibility at all communities recently constructed by the same developer.
Example: In August 2020, the owners, developers, and builders of 82 multifamily housing communities in 13 states agreed to make extensive modifications to their properties and pay $475,000 to resolve a federal lawsuit alleging that they violated federal law by designing and constructing apartment complexes that are inaccessible to persons with disabilities.
The settlement involves housing communities in Illinois, Indiana, Iowa, Kansas, Kentucky, Missouri, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, and West Virginia. The communities, many of which were built with financial assistance from the federal government’s Low-Income Housing Tax Credit program or other federal programs, have a combined total of more than 3,000 units that are required to have accessible features.
The settlement requires the defendants to take extensive corrective actions to make the complexes accessible to persons with disabilities. These include replacing excessively sloped portions of sidewalks, installing properly sloped curb ramps and walkways to allow persons with disabilities to access units from sidewalks and parking areas, providing sufficient room for wheelchair users in bathrooms and kitchens, and removing accessibility barriers in public and common use areas at the complexes. The defendants also agreed to establish a $400,000 settlement fund and $75,000 in civil penalties.
“For nearly three decades, federal law has mandated that new multifamily housing be accessible to people with disabilities,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement. “And yet, after all these years, some in the housing industry continue to ignore their legal obligations by building inaccessible properties that deny individuals with disabilities the opportunity to live in and enjoy housing on equal terms with non-disabled tenants. There simply is no excuse for these violations of longstanding federal law. This lawsuit and its resolution should send an unmistakable message that this Department will work tirelessly to pursue those who deny individuals with disabilities their federally protected right to accessible housing.”
The November lesson also highlighted a new high-tech form of “drive-by” testing that doesn’t even require testers to leave the house. These testers are surfing the Internet to check for web accessibility—barriers to access on the community’s website to people with vision, hearing, or other impairments. In recent years, these claims have resulted in thousands of lawsuits aimed at the business community, but the housing industry could become the next target of web accessibility claims.
Q: Your community was built in the 1980s. The leasing office is on the first floor, but there’s a step at the building entrance. Although it’s not covered under the FHA’s design and construction standards, your community could still face a disability discrimination complaint. True or false?
FOR THE ANSWER: See the November 2020 Quiz, Question #1.