Avoiding Legal Trouble When Renting to Immigrants and Noncitizens

This month, we’re going to focus on avoiding fair housing trouble when dealing with immigrants and noncitizens. The national debate over immigration reform has been raging for many years now, but it’s taken on a new—and more politically divisive—tone since last fall’s presidential election.

There will no doubt be many changes in store on the national political front, but what won’t change is your obligation to comply with fair housing law, which protects everyone—whether a U.S. citizen, lawful resident, or an unauthorized immigrant—from housing discrimination based on race, color, religion, sex, national origin, disability, and familial status.

That list doesn’t include citizenship or immigration status, but fair housing law bans discrimination based on national origin, race, color, and religion—any and all of which may apply to immigrant groups, depending on their country of origin, and their ethnic, racial, and religious background. So, it can be difficult to implement rental policies based on whether someone is or isn’t a U.S. citizen and is or isn’t an illegal or undocumented alien, according to fair housing attorney Robin Hein. Citizenship and immigration status are closely related to race and national origin, which are protected under federal fair housing law. It’s your job to see beyond the uproar over immigration so you can avoid fair housing trouble when dealing with recent immigrants and noncitizens.

Hein says there’s another important thing to keep in mind on the subject of renting to non-U.S. citizens: There are big differences between the rules that apply to rental properties that participate in Section 8 programs and those that apply to conventional private housing. For the most part, non-U.S. citizen applicants and renters must be permanent U.S. residents (meaning they have a green card) to rent affordable housing. That is not the case for conventional privately owned apartments and housing, he says.

In this lesson, we’ll review how fair housing law applies to immigrant groups, including HUD’s latest guidance on fair housing protections for people with limited English proficiency. Then we’ll offer seven rules for avoiding fair housing problems when dealing with immigrants and noncitizens. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status.

Discrimination claims by ethnic minorities, including recent immigrants, may be based on national origin, religion, race, or color—or some combination of those protected characteristics. For example, courts often treat claims of discrimination against Latinos based on both national origin and race. The same goes for those who were born in—or whose ancestors came from—countries in Asia, Africa, or the Middle East, who may be entitled to protection based on national origin as well as race, color, or religion.

The law banning discrimination based on national origin protects ethnic minorities, whether they’ve recently arrived in this country or have been here for generations. 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.

HUD defines “national origin” as the geographic area in which a person was born or from which his or her ancestors came. The geographic area doesn’t have to be a country for it to be considered someone’s “national origin,” since a geographic area could be a region within a country, or a region that spans multiple countries. HUD says that national origin discrimination can occur even if the community doesn’t know, or is mistaken about, precisely where an applicant or resident comes from.

While immigration status is not a specifically protected characteristic under fair housing law, HUD has previously explained and made it clear that everyone in the United States is protected from discrimination by the Fair Housing Act. Discrimination against noncitizens or against those with a particular immigration status is not allowed—even though it is not one of the seven protected categories named in the FHA (race, color, religion, sex, national origin, familial status, and disability).

In the past, HUD and the U.S. Supreme Court have recognized a distinction between someone’s national origin and someone’s citizenship and immigration status. They are related, but distinct, from one’s birthplace or ancestry (meaning one’s national origin). Nevertheless, HUD says, a rental policy or requirement involving citizenship or immigration status could violate federal fair housing law when “it has the purpose or [unjustified] effect of discriminating on the basis of national origin.” So, great care should be taken when adopting any rental policy that singles out someone on the basis of his legal or illegal immigration status.

HUD’s LEP Guidance

In September 2016, HUD issued new “Limited English Proficiency” (LEP) guidance on how fair housing law applies to claims of housing discrimination brought by people because they do not speak, read, or write English proficiently. Nearly 9 percent of the U.S. population—more than 25 million people—don’t communicate proficiently in English.

Federal fair housing law prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect. Though people with limited English proficiency are not a protected class under the FHA, the law bans discrimination based on national origin, which is closely linked to the ability to communicate proficiently in English. Housing providers are therefore prohibited from using limited English proficiency selectively or as an excuse for intentional housing discrimination. The law also prohibits landlords from using limited English proficiency in a way that causes an unjustified discriminatory effect on people based on their national origin. For example, a landlord cannot refuse to show or rent the housing just because the prospect cannot speak English.

Note that programs and activities that receive federal financial assistance, including from HUD, have greater obligations to provide meaningful access to their LEP applicants and beneficiaries under Title VI of the Civil Rights Act of 1964. Hein explains that public housing and communities financed by HUD are required to provide leases translated into the native language of the applicant or tenant and must also provide some form of translation for effective communication. The translation services and translated leases are not required of landlords who participate in Section 8 or LIHTC programs. Nor are translation services required of private housing providers.

7 RULES FOR AVOIDING FAIR HOUSING TROUBLE

WHEN RENTING TO IMMIGRANTS AND NONCITIZENS

Rule #1: Weigh Risks of Policy Restricting Residency to U.S. Citizens

It’s unclear whether federal law prohibits conventional private rental owners from screening applicants based on their citizenship or immigration status unless it pertains to a Section 8 property, Hein says. Communities that participate in affordable housing programs such as Section 8 must ask and confirm that applicants and tenants are permanent U.S. citizens or hold some other lawful immigration status that allows them to live in a Section 8 apartment.

Nevertheless, Hein recommends against restricting residency to U.S. citizens (unless it pertains to public housing or Section 8 properties). Though immigration status isn’t a protected class under the FHA, HUD has acknowledged that someone’s immigration status and citizenship are inextricably related to national origin and race. So, Hein says, any restriction on renting to someone who isn’t a U.S. citizen could be seen by the courts as intentional discrimination because of national origin in violation of federal fair housing law. Refusing to rent to people who are not U.S. citizens, but otherwise lawfully in the country, could also trigger a discrimination complaint under other federal civil rights laws.

It’s also important to check for restrictions under state and local fair housing laws. In California, for example, the law bans communities from asking about a rental applicant’s immigration status or his right to be in the United States. New York City goes further by adding “alienage or citizenship status” to the list of protected characteristics under the city’s fair housing law. Places that have declared themselves to be “sanctuary cities” may likewise prohibit housing discrimination against illegal aliens under their local fair housing ordinance.

Across the country, similar measures are being considered. In New York State, for example, a bill has been introduced to add immigration status as a protected class under the state’s human rights law. And in the State of Washington, lawmakers are considering a bill to ban discrimination based on citizenship or immigration status.

Rule #2: Decide Whether to Screen Applicants Based on Immigration Status

Although the FHA doesn’t expressly prevent you from turning away unlawful immigrants, Hein warns that the law is in flux so it could be a risky practice. The housing discrimination landscape has changed significantly over the past eight years under the previous administration, and it is unclear on how federal courts will handle this issue going forward.

On the one hand, fair housing law doesn’t ban discrimination based on immigration status, and there’s no federal law that requires communities to accept applicants who are in the country illegally. To avoid fair housing trouble, however, it’s crucial that you have a legitimate, nondiscriminatory, and documented business reason for the rental policy—and be sure that the policy is applied consistently—to avoid accusations that the policy intentionally discriminates or has the effect of discriminating against applicants or residents based on their race, national origin, or other protected class. Even if you can document a legitimate business reason for rejecting an illegal immigrant, be aware that the policy could still trigger a discrimination complaint.

Example: In September 2016, the federal court in Virginia refused to dismiss a lawsuit against a mobile home park, which was accused of discrimination based on national origin and race for enforcing a policy requiring all applicants and residents to present documentation of lawful immigration status.

The lawsuit was filed by current and former residents, who were noncitizen Latinos of Salvadorian or Bolivian national origin. The complaint alleged that the park required all parties to the lease to provide documentation of lawful immigration status, but that in 2015 the policy was expanded to cover all adult residents. Allegedly, all the male plaintiffs satisfied the policy, but none of the female plaintiffs did because they were in the country illegally.

The federal judge expressed concern that the leasing policy discriminated against the Latinos because of race and national origin. The court acknowledged that, by targeting illegal immigrants, the policy disproportionately affected Latinos, since the vast majority of illegal aliens in the United States are persons of Latino descent.

While the court doubted that the residents could prove a disparate impact claim, the court refused to dismiss claims of intentional discrimination based on allegations that the residents were subjected to adverse action—refusal to renew their leases—because of their race and national origin. The community asserted that it had legitimate, nondiscriminatory reasons for the policy, but the residents argued that it was just an excuse to cover up discrimination against Latinos. The court also refused to dismiss claims that the policy discriminated against residents based on citizenship and alienage in violation of another federal civil rights law [De Reyes v. Waples, September 2016].

On the other hand, there’s no federal law that requires conventional privately owned housing communities to look into an applicant’s citizenship or immigration status (unless it is a Section 8 property). As a business decision, Hein says that management could set a policy to rent to anyone who meets the community’s rental qualifications—such as income, rental history, credit, and criminal background—without respect to citizenship or immigration status. In fact, according to Hein, the vast majority of private housing landlords (other than Section 8) are willing to rent to people without regard to their immigration status.

Although federal immigration law makes it a crime to “harbor” illegal aliens, most courts have ruled that these anti-harboring laws do not penalize landlords for simply renting housing to people, without regard to their immigration status.

Example: In February 2017, the federal appeals court ruled against two private landlords who tried to block enforcement of a Texas law prohibiting the harboring of illegal aliens. The landlords were willing to rent the residential property to persons regardless of immigration status but were concerned they might be prosecuted for “harboring” illegal aliens. The landlords claimed the law subjected them to potential criminal liability for providing shelter to illegal aliens, even though state law enforcement officials said they would not pursue criminal charges against individuals engaged in such conduct. The lower court agreed with the landlords and issued a temporary ban on Texas’s enforcement of the law.

On appeal, the appellate court lifted the injunction and dismissed the case because it drew a distinction between “harboring” an illegal alien as opposed to simply renting to them. The court said that the landlords couldn’t challenge the law because there was no credible threat that they were subject to prosecution since they hadn’t hampered authorities from finding any illegal aliens they rent to, nor taken steps to help the aliens avoid detection by authorities. The state law, like its federal counterpart, penalized people for taking significant action concealing and hiding aliens from authorities, as opposed to merely housing them [Cruz v. Abbott, February 2017].

Coach’s Tip: Across the country, state and local lawmakers have adopted measures that include “anti-harboring” restrictions or impose other immigration-related requirements on rental housing. The laws vary considerably, and many have been challenged in court, so it’s important to find out about just what’s required in your jurisdiction.

Rule #3: Adopt Consistent Screening Policies

Whatever you decide about your screening standards, you’ll need to develop a policy—and to enforce it consistently—to ensure that it’s applied in a nondiscriminatory manner. And have that policy written into your rental procedures. What you do for one applicant you must do for all: You can’t decide—based on an applicant’s appearance, accent, or apparel—to ask about his immigration status. 

You may be able to ask applicants for documentary proof of their legal right to be in the United States, but you must then ask all applicants and you must have a sound business reason that you are willing and able to support and defend for why you want that information. If you are not going to use the information requested to make a decision on leasing (such as for a Section 8 property), then it would be best not to ask it at all, Hein says.

Although federal law imposes a duty upon employers to verify employees’ citizenship or immigration status through the I-9 process, there is no federal law imposing that obligation on conventional private rental owners to verify applicants’ status. HUD has already noted that the legal relationship pertaining to employment of illegal immigrants is very different from the legal relationship pertaining to providing housing. So, care should be used in applying the rationale of employment cases on the right of illegal immigrants to work to the housing context, Hein says.

Furthermore, there are some serious and significant practical challenges to screening applicants based on their citizenship or immigration status. Hein says that setting up procedures for checking all applicants’ citizenship and immigration documents requires a high degree of consistency and intensive training of the landlord and leasing staff. For example, it’s sometimes difficult to determine or verify which immigration documents and other forms of identification (such as a driver’s license) are valid—and which are not.

Despite your best efforts to be consistent in following rental policies that apply to everyone, Hein warns that you could still face a complaint that the policy has a discriminatory effect based on national origin. Even if you can demonstrate a legitimate business reason, the courts could still find the rental policy to be discriminatory. 

Whatever your screening standards, you may still ask applicants for documentation to verify their identity, along with financial and other qualifications required of all applicants. To verify identity, for example, the applicant may produce a driver’s license, passport, or other form of government-issued identification.

It’s standard practice to ask for Social Security numbers (SSNs). Owners have a legitimate reason for requiring SSNs, since many tenant screening companies require them to perform tenant screening, such as credit and criminal background checks, Hein says. Nevertheless, he warns against insisting on only SSNs because of a potentially discriminatory impact on certain noncitizens (for example, students) who are in the country legally, but who can’t get SSNs because they are not allowed to work in the United States.

An alternative policy would be to ask for—but not require—SSNs for all applicants. If the applicant cannot provide such information, it may be wise to continue to process the application without it. Many screening companies can run credit and check eviction history using alternative information, such as the applicant’s name, date of birth, and last known address.

Coach’s Tip: As of July 2015, unauthorized immigrants may obtain drivers’ licenses in 12 states and the District of Columbia, according to the National Conference of State Legislatures. These states—California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, New Mexico, Nevada, Utah, Vermont, and Washington—issue a license if an applicant provides certain documentation, such as a foreign birth certificate, a foreign passport, or a consular card and evidence of current residency in the state.

Rule #4: Don’t Deny Housing Because of Language Barriers

When dealing with recent immigrants, it’s important to follow the rules outlined in HUD’s LEP guidance. The most important: Never refuse to show a rental property or deny the applicant an opportunity to lease just because of her limited ability to speak, read, write, or understand English.

In its new LEP guidelines, HUD says that housing providers may face fair housing claims for intentional discrimination for housing-related practices—such as a landlord’s refusal to rent or renew a lease—that involve a person’s limited ability to speak, read, write, or understand English. Examples include:

• Applying an English-speaking language-related requirement to people of certain races or nationalities;
• Posting advertisements that contain blanket statements, such as “all tenants must speak English”; or
• Immediately turning away applicants who are not fluent in English.

HUD also promised to look closely at language-based restrictions to make sure they’re not simply an excuse or pretext to cover up discrimination based on race or national origin. In some cases, LEP persons may speak English well enough to conduct essential housing-related matters or have a household member who can provide assistance as needed, so a blanket refusal to deal with LEP persons is probably not motivated by genuine communication concerns. If the housing provider or resident can access free or low-cost language assistance, HUD says that any cost-based justifications for refusing to deal with LEP persons would also be immediately suspect.

Example: In February 2017, the owner and manager of a Minnesota townhouse agreed to pay $5,000 to settle a complaint filed by the Justice Department alleging discrimination based on national origin for refusing to rent to a family of Hmong descent. The complaint alleged that the family—a mother, her adult son, and two minor children—visited a townhouse and filled out an application, but the owner ultimately denied the application, citing the mother’s limited English skills and pointing out that she could easily break the lease unless it was translated to her native language, which was very costly. Earlier this year, a court refused to dismiss the complaint, ruling that the case could proceed based on allegations that the owner denied the family’s rental application because he believed the mother couldn’t speak or understand English because of her race or national origin [U.S. v. Edmunds, January 2017].

In the LEP guidance, HUD also said that a person’s accent and his national origin are inextricably linked, so it was discriminatory to treat someone differently because he speaks with an accent—even if he speaks fluent English. According to HUD, rejecting an applicant or tenant who speaks good English with an accent is just as discriminatory as rejecting them because of national origin. The same was true of policies or practices that treat people with certain accents differently than people with other accents.

Coach’s Tip: HUD warned that the languages that residents speak among themselves or to their guests don’t affect the housing provider or neighbors in any legitimate way, so any ban on tenants speaking non-English languages on the property or making statements disparaging them for speaking other languages has no legitimate justification under fair housing law.

Rule #5: Avoid Pitfalls That Can Lead to Fair Housing Trouble

Demonstrate that your community has a zero-tolerance policy against discrimination based on national origin—and all the other characteristics protected under federal, state, and local laws. Put your written policies into practice by conducting periodic training sessions highlighting some of the pitfalls that can lead to fair housing trouble. Some basics:

Don’t let personal opinions affect how you treat people: The national debate over immigration reform has been raging for years, but it’s been dominating the headlines now more than ever. It’s natural to have strong feelings—one way or another—but whatever your personal opinions on the subject, it’s important to keep them from affecting decisions about who may live in your community and how they are treated. While you’re entitled to your own personal beliefs and opinions (which are protected under the First Amendment), as a landlord or management representative, you cannot let your personal opinions substitute for sound business rental policies, Hein says.

Avoid stereotypes: Instruct staff members to avoid prejudging prospects or applicants based on their names, appearance, clothing, and other personal characteristics. Treating people differently because of their physical features, mannerisms, clothing, or speech could trigger a fair housing complaint based on race, religion, or national origin. Even the appearance of unfavorable treatment based on how an applicant looks, speaks, or dresses could lead to a discrimination claim.

Beware of linguistic profiling: Warn staff against treating prospects differently because of how they sound—for example, if they have an accent or difficulty speaking English—particularly when answering the phone. Treating someone differently because of the way she speaks is called “linguistic profiling,” a practice that could lead to fair housing trouble. The same goes for what’s known as “email profiling,” treating people differently because their name suggests that they—or their ancestors—are of a particular racial, religious, or ethnic group.

Don’t steer: When discussing vacancies with prospects, you should be guided by their stated requirements—not by your preferences or assumptions about where they would prefer to live in your community. Steering is the practice of encouraging or discouraging someone from living in your community—or parts of your community—based on a protected characteristic. Attempting to limit the housing choices of applicants or residents based on national origin, such as showing members of some ethnic groups only units in certain parts of your community, instead of any unit that meets their criteria, is a violation of fair housing law.

Rule #6: Encourage Cultural Sensitivity

During staff training, emphasize professionalism and the need to respect the diverse ethnic and cultural differences among prospects, applicants, and residents.

Tutor staff members so that they don’t inadvertently offend prospects, applicants, or residents because of unfamiliarity with religious or cultural practices. For example, it’s a good idea to forewarn maintenance workers and any other staff members who may visit residents’ units that in many cultures, it’s necessary to remove one’s shoes when entering a home. While that is not a wise or safe action to take (and workers comp may not allow your employees to perform their jobs shoeless), often using booties over the shoes or work boots will be acceptable to your residents, says fair housing expert Nadeen Green.

Avoid asking people about their accents or where they come from, advises Green. You may think it’s just casual conversation, but people may be unsure as to why you’re asking, and you could inadvertently cross the line by asking further questions or making comments that touch on race, national origin, and other protected classes.

Example: In February 2014, a Massachusetts court ruled that a real estate broker violated fair housing law when he causally asked a prospect about her national origin. It happened during a meeting with a married couple when the broker—whose wife was Brazilian—asked the wife where she was from. The woman responded that she was from Venezuela, but she later said the question triggered extreme emotional distress. Unbeknownst to the broker, the wife thought they had just lost a rental opportunity because of her national origin and she feared that it was happening again. The couple filed a complaint with the Boston Fair Housing Commission, which ordered the broker to pay more than $60,000 in damages, penalties, and attorney’s fees.

On appeal, the court affirmed that the broker violated fair housing law by asking about the prospect’s national origin, but reduced the amount of damages. Even though his question had no discriminatory intent and didn’t result in discrimination against the couple, the question itself was a violation of fair housing law [Linder v. Boston Fair Housing Commission, February 2014].

When in a resident’s unit, Green warns against asking about art, artifacts, and religious items on display. When you’re in a resident’s unit, you’re not a guest—you’re there on business, and such discussion can be risky, even if well intentioned.

Coach’s Tip: In the pool area, Green explains that some people will want to wear clothing that covers them greatly. It isn’t “swim wear,” but the garb should be allowed, she says, as long as it’s dedicated for pool use only by the wearer and isn’t a material that will unduly shed or unravel, creating pool filter issues.

Rule #7: Apply Community Rules Consistently

Make sure that your community fairly applies the terms and conditions of tenancy (lease provisions, rental policies, and community rules and regulations) to all residents, without regard to race, religion, or national origin. When it comes to use of building amenities, for example, it’s all or nothing, Green says. If the Bible group can meet in the club house, then the Muslim group or Wiccan coven must be allowed to use it as well.

It’s also all or nothing when it comes to holiday displays. If you allow residents to put Christmas decorations on their porches and outside their front doors, then you must permit residents of other faiths to display items that reflect their religious beliefs. But, Green says, it makes good business sense to put some limits on how long they can be displayed, for example, by allowing all such decorations to be put up no more than a week before the specific date or holiday to which they relate—and requiring them to be removed within three days after that specific date or holiday.

One thing to remember: The law doesn’t require you to make exceptions to community rules to accommodate certain kinds of religious or cultural practices. Fair housing law doesn’t require accommodations based on religion, Green says. Many standardized leases have a “no candles” requirement—you don’t have to make an exception to allow religious candles, she says.

Coach’s Tip: Treat complaints about cooking odors just as you would any other types of odors, Green says. Whether it’s cooking with curry or smoking (cigars, cigarettes, marijuana) or cat urine, a resident cannot inflict odors on neighbors and common areas that may be unreasonable or intolerable to a significant number of other residents.

• HUD, “Guidance on Fair Housing Act Protections for Persons with Limited English Proficiency,” September 2016
• HUD, “Notice of Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,” January 2007

COACH Sources

Doug Chasick: President, The Fair Housing Institute, Inc.; Melbourne, FL; (321) 956-2188; doug.chasick@fairhousinginstitute.com.

Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

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