Avoiding Fair Housing Claims Related to Residents' Guests

This month's lesson takes a broad look at who is protected under fair housing law. Most of the time, we focus on the rules banning discrimination against prospects, applicants, and residents because of their race, religion, or other protected characteristic. But the law reaches far beyond those individuals to protect others, including a resident's family, friends, and guests—even your employees, in some cases.

In this lesson, we'll review who is protected under fair housing law and offer some examples of common situations where a discrimination problem could be lurking. Then, we'll suggest seven rules to prevent fair housing problems from arising—and what to do if your community faces a fair housing complaint—from an unexpected source. Finally, you can take the COACH's Quiz to see how much you have learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination, harassment, and other unlawful housing practices based on race, color, religion, sex, national origin, familial status, or disability. In addition, many state and local laws extend fair housing protection to cover a wide range of other characteristics, including marital status, age, source of income, military status, and sexual orientation.

The law clearly makes it unlawful to discriminate against prospects, applicants, or residents because of their race or other protected characteristic. While most fair housing complaints are filed by those individuals, it's possible for communities to face a fair housing complaint by someone other than a prospect, applicant, or resident.

To understand the concept, it's important to recall the original goal of fair housing law—to root out racial segregation. The law also first targeted housing discrimination based on color, national origin, religion, sex—and later, disability and familial status.

With that broad aim in mind, the FHA was written to allow any “aggrieved person” to pursue a fair housing complaint. The law defines aggrieved person to include anyone who:

• Claims to have been injured by a discriminatory housing practice; or

• Believes that he will be injured by a discriminatory housing practice that is about to occur.

Recognizing the FHA's original purpose, the U.S. Supreme Court issued a landmark ruling allowing two residents—one white and one African American—to file a racial discrimination claim, alleging that they had been injured by the “loss of the social benefits of living in an integrated community” [Trafficante v. Metropolitan Life Ins. Co., 1972]. In the years that followed, courts across the country have broadly interpreted the FHA to permit individuals who were not themselves members of a protected class—but who have been or may be affected by a housing provider's discriminatory practices—to pursue fair housing claims.

As a technical matter, lawyers often get embroiled in arguments over who is allowed to sue as an aggrieved person—in legal parlance, who has “standing” to pursue a fair housing complaint. From a legal perspective, it's often the first step in defending a fair housing complaint filed by someone who isn't a member of a protected class. If the party filing the lawsuit has no standing to proceed under the FHA, then the case is thrown out of court.

We'll leave the legal technicalities up to the lawyers; the important thing to remember is that your community could face a complaint by pretty much anyone who claims to have been adversely affected by unlawful discrimination—regardless of whether they are members of a protected class.

Furthermore, the FHA has a separate section that makes it unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised his rights under fair housing law—as well as anyone who has helped or encouraged someone to do so. Those provisions don't require that the person filing a retaliation claim be a member of a protected group, so communities could be liable for retaliating against residents, guests, and even employees, for associating with members of a protected group or complaining about unlawful housing practices.

What that means is that communities face the prospect of paying multiple damage awards to various parties for fair housing violations. Claims could be filed by residents who, though not protected themselves, complain of being treated unfairly because their friends or guests are members of a protected group. In addition, the guests themselves may pursue a fair housing claim if they were harassed because of a protected characteristic. If both a resident and his friend can prove that they were subjected to discrimination or harassment because of the protected status of either, then your community could face two fair housing complaints—with the potential of paying two damage awards—for violating fair housing law.

Example: In March 2011, the U.S. Department of Justice (DOJ) wrapped up a lawsuit against a 48-unit South Dakota community, where two former employees allegedly created a racially hostile housing environment for one African-American family and two white families who associated with them while all were residents at the community.

According to the complaint, the former employees—the property manager and maintenance supervisor—used racial epithets in reference to the African-American family and in the presence of all three families, including minor children. The complaint also alleged that they retaliated against the two white families who befriended the African-American family, eventually leading all three families to move out.

Late last year, the former owner of the complex and one of its principals agreed to a $30,000 settlement in which they admitted the government's factual allegations about the discriminatory conduct carried out by the former employees against the three families. The former employees didn't respond to the complaint, so the court entered a default judgment against them. A few months ago, the court ordered them each to pay a $15,000 civil penalty and barred them from participating in the management or operation of rental housing for a three-year period.

“No person or family should be discriminated against because of race, or retaliated against because of the race of their friends or relatives,” Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, said in a statement [U.S. v. T.K. Properties, LLC, March 2011].

COACH'S TIP: Fair housing complaints may be filed not only by individuals, but also by organizations that claim to have been injured by housing discrimination. In such cases, the organization's “standing—that is, the ability to pursue a fair housing complaint—is often a hotly contested issue, particularly when the lawsuit is based on the results of fair housing testing. Generally speaking, fair housing testing involves contact—by phone or in person, and increasingly online—by paired individuals or couples who have similar backgrounds—except for their race or other protected characteristic. Though the cases often turn on legal technicalities, courts have permitted fair housing organizations to pursue claims under the FHA if the test results show that the housing provider excluded or otherwise discriminated against testers from the protected group.

7 RULES FOR AVOIDING DISCRIMINATION CLAIMS RELATED TO RESIDENTS and THEIR GUESTS

Rule #1: Apply Fair Housing Policies to Residents and Their Guests

Abide by your fair housing policies and procedures banning discrimination against residents as well as anyone associated with them, such as family members, friends, and guests based on race, color, national origin, sex, religion, disability, and familial status—along with any other characteristics protected under applicable state or local law.

Just as it's unlawful to discriminate against residents based on their race or other protected characteristic, it's a violation of fair housing law to discriminate against their friends or guests for the same reason.

Example: A Pennsylvania court refused to dismiss a fair housing claim filed by a white resident and her African-American guests for discrimination and harassment. According to the complaint, the incidents occurred shortly after the resident moved into the building, where all the other residents were white. The resident alleged that, during the next two weeks, her friend, an African-American woman with two young children, visited her several times, sometimes staying overnight. When neighbors complained, according to the complaint, the owners told her to “look for somewhere else to live” and tried to evict her without good cause. Allegedly, one of the owners physically confronted the women, in the presence of the children, threatening to harm them unless the resident and the guest's “kind” left. As she moved out a few days later, the resident said that the owner again threatened her—and the family who was waiting in her car.

The court ruled that both the resident and the guests had the right to pursue fair housing claims. The court reasoned: “If it is a discriminatory housing practice to condition rental rights on the exclusion of black guests, it reasonably follows that a black invitee [guest] who is excluded or coerced into leaving because of race has been ‘aggrieved’ or ‘injured by a discriminatory housing practice’” [Lane v. Cole, March 2000].

Though most reported cases involve discrimination against guests based on race, the same rules apply to other protected characteristics, according to Atlanta-based fair housing attorney Robin Hein. For example, he says, it's unlawful to ban families with young children from visiting to avoid potential safety risks from community features, such as a lake or steep cliff.

Rule #2: Don't Discriminate Against Residents Because of Their Friends or Guests

Fair housing law bans discrimination against residents —whatever their personal characteristics—because of their association with members of a protected group. It's unlawful to take any adverse action against a resident—such as threatening, evicting, or otherwise interfering with his right to enjoy the premises—because of biases against his friends or guests.

Communities have been held liable for violating fair housing law by discriminating against white applicants and residents because they associate with African Americans. Early court cases established that discrimination in the provision of housing to white residents because of their association with African Americans violates fair housing law. Allegations of fair housing violations have been made by interracial couples, the parents of biracial children, and white residents who hosted African-American friends in their units.

Example: Last year, HUD charged the owner and property manager of a Mississippi rental property with violating fair housing law by refusing to renew the lease of a white resident because she associated with African Americans and had a biracial daughter. The HUD charge also accused the property manager of making discriminatory statements about renting to African Americans and residents associating with African Americans.

Specifically, HUD's charge alleged that after the manager discovered that an African-American man had visited the resident's unit, the manager informed the resident that she wasn't permitted to have visitors who were not listed on her lease. Two months later, after a neighbor called the police when he saw an African-American man knocking on the resident's door, the manager notified her that her lease would not be renewed.

“No one should be denied a place to live because of the race of their family members or friends,” John Trasviña, HUD's Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to ending housing discrimination in all forms and in all places” [Secretary v. Kelly, October 2010].

By analogy, fair housing experts say that the rules banning discrimination based on race apply equally to other protected groups. For example, fair housing expert F. Willis Caruso, Esq., warns that a community may not discriminate against residents or their guests because they are Muslim.

In its guidelines on post-9/11 security concerns, HUD offers an example about complaints from a neighbor about a Muslim resident who hosts weekly meetings with other Muslim men. If the guests are not disturbing the neighbors, HUD said, the community could be accused of religious discrimination for asking the resident to refrain from having Muslim guests when there is no evidence of any violation of established property management rules.

Rule #3: Don't Discriminate Against Anyone Associated with an Individual with a Disability

Take care to avoid disability-related problems with respect to residents and their family, friends, and guests. The FHA specifically bars housing providers from discriminating against applicants or residents because of their disability or the disability of anyone associated with them.

According to HUD/DOJ guidelines on reasonable accommodations, the FHA's protections against disability discrimination cover home seekers with disabilities as well as renters without disabilities who live or are associated with individuals with disabilities. Citing the law's legislative history, HUD notes that the disability provisions were intended to prohibit not only discrimination against the named lessee, “but also to prohibit denial of housing opportunities to applicants because they have children, parents, friends, spouses, roommates, patients, subtenants, or other associates with disabilities.”

What that means is that a community may not exclude or otherwise discriminate against an applicant or resident because a family member, friend, or guest has a disability. For example, it would be unlawful to deny housing to a resident who has a household member with a physical or mental impairment that qualifies as a disability under the FHA. Furthermore, Hein warns that communities may not discriminate against a resident's guest because the guest has a disability. If, for example, you allow residents to bring guests to your pool, then it would be unlawful to unreasonably ban a guest with a disability from using the pool, he warns.

Furthermore, communities should be prepared to handle requests for reasonable accommodations for residents or household members who have a qualifying disability under the FHA. The request need not come from the resident himself—it may be made by a family member or someone else who's acting on his behalf, according to HUD/DOJ guidelines.

It can be particularly challenging to resolve accommodation requests from a resident with a disability for waivers to community rules with respect to caregivers. There has been litigation over requests to waive rules governing guest fees, parking privileges, and other restrictions for family members or home health aides providing care to residents with a disability. And Caruso predicts an increasing number of such cases in coming years as the population ages.

There are no cut-and-dried rules governing when communities must grant such requests, because each case depends on the particular facts involved. Hein posits an example of a resident with a disability who asks a community with unassigned parking to reserve a handicapped parking spot for his caregiver. On one hand, the community may have to grant the request if the resident has a severe mobility impairment, receives daily assistance from a caregiver, and needs the caregiver to drive him to medical appointments on a weekly basis. On the other hand, the community may have grounds to deny the request if the caregiver provides only occasional assistance, and the resident has a car and drives himself to medical appointments. The bottom line is that the requested accommodation must be both reasonable and necessary to allow the individual with a disability to fully enjoy the property based on the particular facts of the situation, so it's best to get legal advice when faced with such difficult circumstances.

Example: In March 2011, a court refused to dismiss a disability discrimination case filed by a disabled resident who asked for a waiver to various rules to allow her daughter to provide assistance as her caregiver. According to the complaint, the mobile home community had a policy requiring caregivers who wished to live at the community to submit to a background check and be approved by the association. The community allegedly objected to the daughter's presence on the premises because of her criminal history and got a court order prohibiting the daughter from living there.

The resident filed a fair housing complaint, alleging that the community unreasonably denied her request to allow her daughter to visit her periodically to provide care. The court allowed the claim to proceed because the community's actions could qualify as the denial of a reasonable accommodation under fair housing law [Marton v. Lazy Day Property Owners Assn., Inc., March 2011].

Rule #4: Comply with State and Local Laws Protecting Residents and Guests

Check to ensure that your policies banning discrimination against residents and guests include any applicable state and local fair housing requirements. Those laws extend the ban on discrimination beyond the seven federally protected characteristics to cover a wide range of other characteristics.

In general, state and local laws mirror federal provisions banning discrimination or harassment against residents' guests—and against residents because of their guests. For example, 20 states and more than 200 local governments currently ban discrimination based on sexual orientation; many also ban discrimination based on gender identity or gender expression. Depending on the particulars of the laws affecting your community, you could face a fair housing complaint if residents or their guests are subjected to discrimination or harassment because of their sexual orientation or gender identity/expression.

COACH'S TIP: Communities must also be careful in how they treat victims of domestic violence because of the abusive or criminal behavior of their abusers. In some cases, HUD says, victims of domestic violence may be covered under the FHA's ban on discrimination based on sex if, for example, a policy of evicting households for criminal activity is applied selectively against women who have been abused by their partners and not against the male perpetrators of domestic violence. Moreover, public housing and some federally assisted housing communities are subject to the federal Violence Against Women Act, which protects victims of domestic violence, dating violence, sexual assault, or stalking committed by household members or guests. Meanwhile, there are a myriad of laws on the state and local level aimed at protecting victims of domestic violence.

Rule #5: Set Reasonable Rules Governing Guests and Apply Them Consistently

Communities may establish guest policies that set reasonable restrictions for guests, as long as they are applied consistently, says Hein. It would be unlawful to adopt or apply rules that bar guests from your community or unfairly limit their right to enjoy the property based on their race, disability, or other characteristic protected under federal, state, or local fair housing law.

If your community doesn't place restrictions on the number of guests a resident may entertain, for example, you may not penalize a resident from hosting a party simply because most or all of her guests are African American.

Example: In January 2011, the owner of a Mississippi mobile home park agreed to pay $45,000 in damages and a $5,000 civil penalty to resolve allegations that its property managers discriminated against African-American residents and members of interracial households. Among other things, the managers allegedly interfered with an African-American family hosting a barbeque by accosting and hurling racial slurs at their guests, who were also African American. A few days later, according to the complaint, the managers attempted to evict the family, claiming that their guests had violated park rules [U.S. v. Indigo Investments, LLC, January 2011].

Moreover, communities may establish reasonable rules regarding whether and under what circumstances guests may use amenities, such as your fitness center or pool. You may impose age limits based on legitimate safety concerns, but you may not simply ban all children from using the facilities without risking a potential discrimination claim based on familial status.

Put your guest policy in writing and distribute it to all residents, so they understand what's expected of their guests. Among other things, the policy should specify the consequences for a guest's failure to abide by the rules. Although you may not target members of protected classes for selective enforcement of the rules, you need not overlook rules violations simply because either the resident or the guests are members of a protected class.

Rule #6: Ban Harassment of Residents or Guests Based on Protected Characteristics

Establish rules barring anyone—including your residents—from harassing their neighbors or their neighbor's guests—based on a protected characteristic.

Fair housing law bans intimidating, threatening, or interfering with anyone exercising his fair housing rights. It's clear that the law prohibits communities and their employees from engaging in such behavior, but a community may be held accountable if it knew that a neighbor was harassing a resident for discriminatory reasons, but did nothing to stop it.

Example: In January 2011, the DOJ filed a complaint against a public housing authority in West Virginia on behalf of an African-American family for discrimination and retaliation. The complaint alleged that the housing authority allowed a white resident to racially harass the family without prompt and consistent enforcement of its policies and lease terms. According to the complaint, the family repeatedly reported the neighbor's misconduct—including verbal abuse, racial slurs, threats, and assaults—but didn't take action to stop the harassment [U.S. v. Wheeling Housing Auth., January 2011].

If racial disputes erupt between neighbors, Hein says that communities have an obligation to investigate and to intervene. And since fair housing law protects both residents and their guests, Hein reasons that a community could face a potential fair housing claim if it fails to take steps to address a neighbor's harassment of a resident's guests—or against the resident because of his guests—based on a protected characteristic.

Rule #7: Don't Retaliate Against Residents, Guests, or Employees for Reporting Fair Housing Problems

Take steps to avoid claims of retaliation against residents, guests, or employees who report fair housing problems. The FHA provisions against harassment or intimidation bar retaliation against anyone who complains of discrimination as well as employees and others who help or encourage alleged discrimination victims to pursue their rights under fair housing law.

Those provisions protect employees from adverse employment actions—such as being reprimanded or fired—for opposing discriminatory practices or advising aggrieved residents to contact HUD or other fair housing agencies. That means that, in addition to any liability to the victims of alleged discrimination, a community could be required to pay damages to any employee who was disciplined for helping the alleged victims in pursuing their rights.

Example: Last year, the owners of a Kansas City high-rise rental community agreed to pay more than $2 million to resolve allegations of racial discrimination against applicants and residents as well as retaliation against a former employee. According to the complaint, the community's manager created a racially hostile environment by, among other things, displaying racially hostile materials, referring to African Americans with racial epithets, and treating white residents more favorably than African-American residents. Furthermore, the complaint alleged that, after learning that an employee participated in a HUD investigation and advised residents of their right to file fair housing complaints, the manager contrived a reason to fire her [U.S. v. Sturdevant, May 2010].

Fair Housing Act: 42 USC §3601 et seq.

Sidebar

COACH Sources

F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 South Plymouth Ct., Ste. CBA-800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood and Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.