Complying with Fair Housing Rules Banning Discriminatory Statements

In this lesson, the Coach reviews fair housing rules banning discriminatory statements. The rules apply to discriminatory advertising, but there’s more to it than that, since they apply to all kinds of statements, including:

• What you say to prospects, applicants, or residents in person or over the phone;
• What you write in notes, texts, or emails as well as community rules and policies;
• What you put in your advertising and marketing materials—including words and graphics—in print, online, and other media. 

You have to be careful about what you say—and how you say it—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.

In this lesson, we’ll review the law on discriminatory statements and explain how it applies in communications with prospects, applicants, and residents; in community rules and policies; and in advertising and marketing materials. Then we’ll offer nine rules to help you identify—and avoid—potential pitfalls that could lead to fair housing trouble. Finally, you can take the Coach’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits housing discrimination because of race, color, religion, sex, national origin, familial status, or disability. The law targets discriminatory practices by making it unlawful to deny housing—or discriminate in the terms and conditions of the rental—because of race or other protected characteristic.

In a separate category, the FHA takes aim at discriminatory statements by making it unlawful “to make, print, or publish…any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, disability, familial status, or national origin.”

The ban applies to all spoken, written, or online statements—including words, phrases, photos, illustrations, or symbols—that suggest a preference for or against anyone because of race or any other protected characteristic. Written statements include any applications, flyers, brochures, signs, banners, posters, billboards, or any other documents used in connection with rentals, according to HUD regulations. The rules are the same, regardless of whether the statement is in print or online. The ban on discriminatory advertising applies to all advertising media, including newspapers, magazines, television, radio, and the Internet, according to HUD.

Liability for making discriminatory statements does not require proof of discriminatory intent. The test is whether an “ordinary reader or listener” would interpret the statement as indicating a preference for—or against—a protected class.

9 RULES FOR COMPLYING WITH FAIR HOUSING RULES

BANNING DISCRIMINATORY STATEMENTS

Rule #1: Watch What You Say

What you say could come back to haunt you. 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 you should be careful about what you say on the phone, in person, in texts or emails, and any other form of communication with prospects, applicants, or residents.

It’s easy to get into trouble in casual conversation. You may think you’re just making small talk, but you could inadvertently cross the line by asking questions or making comments that touch on disability, national origin, or any other protected characteristic.

Example: In February 2014, a Massachusetts court ruled that a real estate broker violated fair housing law when he casually 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.

She responded that she was from Venezuela, but she later said the question triggered extreme emotional distress. Unbeknownst to the broker, the woman believed the couple had just been turned down for another unit because of her national origin. Worried that it was happening again, the woman allegedly suffered extreme anxiety and sleeplessness for years—even though they rented a unit a month later.

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. 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. Nevertheless, the court cut the amount of damages, holding the broker responsible for the prospect’s emotional distress for only the month after he asked the question until they secured a unit [Linder v. Boston Fair Housing Commission, February 2014].

Rule #2: Be Careful in Emails and Text Messages

When dealing with prospects and applicants, it’s often quicker and easier to communicate via text message or email rather than trying to find a good time to talk over the phone. It may be more convenient than other forms of communication, but don’t let the informal nature of text messages or emails lull you into a false sense of security. Whatever you write—regardless of whether it’s in a formal notice or a text message or email—it’s still unlawful to express a preference for—or against—anyone based on a protected characteristic.

Example: In June 2015, the Justice Department sued a Minnesota property owner for alleged discrimination against an Asian family of Hmong descent based on national origin. The case began with a HUD complaint filed by the family—a mother, her adult son, and two minor children—after unsuccessful efforts to rent a townhouse. After visiting the property, they said they filled out applications and paid an $80 application fee. In a series of text messages and emails between the son and the owner about efforts to get a credit report for the mother, the owner allegedly expressed concerns about her English language skills.

According to the complaint, the owner sent an email denying 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. In a flurry of emails later that day, the complaint stated, the son accused the owner of unlawful discrimination, but the owner denied it—eventually saying that he’d accept the mother, but not the son because he was a jerk.

After an investigation, HUD charged the owner with refusing to rent to the family and making discriminatory statements based on their national origin, and other fair housing violations. The Justice Department filed the lawsuit after the family elected to take the matter to federal court [U.S. v. Edmunds, June 2015].

Rule #3: Hold Your Temper

It can get frustrating when dealing with residents, particularly if you think they aren’t living up to their obligations under the lease or otherwise taking advantage of you. You have a right to pursue all legal avenues available to address the situation, but don’t let your temper get the best of you. You might say something you shouldn’t—and compound your problems—by getting hit with a fair housing complaint for making discriminatory statements.

Example: In March 2015, a court ruled that a Massachusetts landlord was liable for making discriminatory statements about a resident’s HIV status. After initially renting him the unit, the landlord discovered the resident’s HIV status, and angrily confronted him, saying he regretted renting him the unit and wanted him to move. The resident stayed, but frequently paid his rent late, eventually prompting the landlord to initiate eviction proceedings against him. In another confrontation, the landlord made similar statements about his HIV status and refused to accept an offer by the resident or his caseworker from the AIDS project to pay the arrears.

As a defense in the eviction case, the resident argued that the unit was infested with mice and that the landlord had violated fair housing laws by making discriminatory statements based on his disability.

After a hearing, the judge agreed, reducing the amount of rent owed because of the mice. The judge also ruled that the landlord made discriminatory statements about the resident’s HIV status and awarded him to pay $10,000 in damages—which were tripled to $30,000 under state law.

On appeal, the court affirmed, ruling that the landlord violated federal and state law by making discriminating statements about the resident’s HIV status. The court said that the landlord’s statements, coupled with his refusal to accept rent payments from the AIDS project caseworker, indicated a preference on the basis of handicap. Nevertheless, the court said that he wasn’t entitled to triple damages and—after subtracting the amount of the arrearage from the $10,000—awarded him more than $7,000 and possession of the unit [Kachadorian v. Larson, March 2015].

Rule #4: Review Policies and Rules to Weed Out Discriminatory Statements

Check your documents—including forms, notices, leases, policies, and rules—to ensure that they don’t contain language that suggests a preference for or against anyone based on race, color, religion, sex, familial status, national origin, or disability.

Look for any ambiguous language to determine whether it expresses any discriminatory preference. Even though you know what you mean, it’s important to analyze whether someone could take it the wrong way. You may not have any discriminatory intent, but you could face a problem if the language suggests to an ordinary reader that your community has a preference for—or against—anyone because of a protected characteristic.

Unless the community qualifies as senior housing, you should closely examine any policies or rules that single out children, particularly their use of common areas and pools. You may have legitimate reasons to ensure safety and preserve the quiet enjoyment by all your residents, but you could trigger a discrimination claim based on familial status if your rules unreasonably restrict the ability of children, and therefore their families, to use and enjoy the community.

For one thing, you could be accused of applying discriminatory terms and conditions if your enforcement of the rules treats families less favorably than adults-only households. But regardless of how you enforce them, you could be accused of making discriminatory statements if the rules suggest a discriminatory preference against families with children.

Example: In January 2014, a court found a California community violated fair housing law by making discriminatory statements in written notices to residents about rules that singled out children. Among other things, the community had a rule against excessive noise, which listed “noisy children” among the examples of things that made too much noise. The recreational rules stated that children weren’t allowed to play on stairwells, walkways, or carports, or use their toys or vehicles in those areas or in the pool area. The pool rules stated that children under 18 couldn’t be in the pool area without a parent.

The community argued that the rules were well intended and had no discriminatory purpose, but the court said that by singling out children as a special concern, the noise rule suggested a preference, limitation, or discrimination to the ordinary reader in violation of fair housing law. And the rule barring children from playing or leaving toys in certain areas was discriminatory on its face by treating children, and therefore families with children, differently and less favorably than adults-only households. The pool rules were a problem because they weren’t required by state law and imposed unnecessary restrictions on use of common pools by tenants’ family members. Though the rules amounted to discriminatory statements, further proceedings were needed on the remaining fair housing claims [Rojas v. Bird, January 2014].

Rule #5: Make Sure Everyone Knows the Rules

Everyone working on your behalf—employees and agents—should have at least some basic training in fair housing law. Among other things, they should understand the rules banning discriminatory statements and how to apply them when they’re answering the phone, talking to applicants, conducting tours, or interacting with residents and their guests. It’s important to properly train and supervise agents and employees before you allow them to interact with the public. That’s because owners and managers can be held accountable for discriminatory statements made by agents or employees working on their behalf.

Example: In January 2015, a court held that the owner of rental property in Ohio was liable for discriminatory statements made by a friend who was covering the front desk for him in exchange for being allowed to live there. Though they agreed he wasn’t an employee, the friend answered the phone, showed units to prospects, and provided them with applications, which authorized no pets other than service animals. The owner retained sole authority to accept or reject them.

While manning the phones, the friend took several calls from people asking about “therapy animals” or “assistance animals.” Initially, the friend said he’d have to check with the owner, but in later calls he responded that the owner wouldn’t allow pets. It turned out that the calls were from testers, triggering the state fair housing commissioner to sue the owner for fair housing violations.

After a series of proceedings, the court ruled that the owner was liable for the friend’s fair housing violations. From what the testers said, the friend was on notice that they were requesting reasonable accommodations for their assistance animals. Rather than asking for additional information, he flatly said that animals weren’t allowed. The friend clearly violated fair housing law by making discriminatory statements, refusing to make reasonable accommodations, and discouraging people from renting units because of disability.

The owner denied telling anyone, including the friend, that service animals weren’t allowed. But in the end, it didn’t matter whether the friend was authorized to make the statements, because he had apparent authority to make them. Apparent authority means that the agent was put in a position to reasonably appear to act on behalf of the owner. The owner admitted authorizing the friend to cover the front desk, answer the phone, answer questions about the units, and show units. The community was liable for the friend’s statements because he had apparent authority to act on its behalf.

Although various corporate entities owned the property over the years, the owner was personally responsible for the fair housing violations. The court said that he was clearly trying to shield himself from personal liability by moving the sole asset owned by the corporation in and out of various entities he controlled and managed [Avakina v. Chandler Apartments LLC, January 2015].

Rule #6: Don’t Express Unlawful Preferences in Advertising or Marketing

Review advertising and marketing materials to make sure they don’t contain discriminatory statements—that is, express a preference for or against anyone based on any characteristic protected under federal, state, or local law.

The ban on discriminatory advertising applies to all spoken, written, and online statements—including words, phrases, pictures, illustrations, symbols, and other graphics—that suggest that the housing is or is not available to particular groups of people because of a protected characteristic.

HUD warns that human models in photographs, drawings, or other graphics may not be used to indicate exclusiveness because of race, color, religion, sex, handicap, familial status, or national origin. If models are used, HUD says that they should reasonably represent both majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children. The models should portray people in an equal social setting and indicate to the general public that the housing is open to all without regard to race, color, religion, sex, disability, familial status, or national origin.

Remember, fair housing enforcement officials and advocates are monitoring online media to check for discriminatory advertisements, particularly based on familial status. Blatantly discriminatory ads—such as “No kids”—or even ambiguously worded ads can lead to a fair housing complaint if the language suggests a preference for singles or against families with children.

Example: In February 2015, a court ordered another round in ongoing litigation over an online ad that stated, “Our one bedroom apartments are a great bachelor pad for any single man looking to hook up.” A fair housing organization, which found the ad on Craigslist, sued the community, arguing that the ad expressed an unlawful preference based on familial status and sex. In the first trial, the jury found that the ad didn’t violate fair housing law. After an appeal and a second trial, the jury found that the ad did violate fair housing law, but that the fair housing organization failed to prove damages. In a recent ruling, the court ordered a third trial, this time strictly limited to the amount of damages, if any, that the community had to pay for the discriminatory ad [Miami Valley Fair Housing Center, Inc. v. The Connor Group, February 2015].

Rule #7: Practice Inclusive Marketing

When it comes to advertising and marketing practices, it’s important to be careful not only in what you say, but also where and how you say it.

That’s because you could be accused of selective marketing practices in your choice of media if you advertise only in media outlets that cater to certain segments of the population. According to HUD regulations, the ban on discriminatory statements makes it unlawful to select media or locations for advertising that deny particular segments of the housing market information about housing opportunities because of race, color, religion, sex, disability, familial status, or national origin.

What that means is that you can’t selectively market your community only to certain people—such as members of particular racial, ethnic, or religious groups—as a way to exclude others from your community. For example, HUD warns against the use of English-language media alone or the exclusive use of media catering to the majority population in an area where non-English language or other minority media also is available.

Example: In October 2014, a court refused to dismiss a lawsuit accusing a Tennessee mobile home park of discrimination based on national origin. The dispute centered on what happened after a major flood hit the park in 2010, but the residents also accused the community of violating fair housing law by advertising only in Spanish-language media. The complaint alleged that the majority of residents in the surrounding county were African American, but nearly all the residents at the park were of Hispanic descent—many with limited English proficiency. The court refused to dismiss the claim, ruling that allegations of selective marketing met HUD’s definition of discriminatory advertising in that it denied non-Spanish-speaking segments of the housing market, who were overwhelmingly non-Hispanic, information about housing opportunities [Guevara v. UMH Properties, Inc., October 2014].

Coach’s Tip: Fair housing experts say that it’s not illegal to target market to certain groups as long as it’s part of a broad, inclusive marketing campaign and you have a valid, nondiscriminatory reason for doing so. If, for example, you find that members of a particular ethnic group have settled into your community and the surrounding area—and you did nothing to create or encourage the situation—an inclusive campaign could include outlets that cater to that group because it’s already represented.

Rule #8: Avoid Pitfalls on Community Website

As a practical matter, fair housing experts suggest that your website is no different from traditional advertising, since it’s intended to show the advantages of living in the community. Be sure that any content—both words and pictures—don’t suggest that your community has a preference for or against anyone based on characteristics protected under federal, state, or local law.

The website may describe the community, its units, and features, but not the kind of people who may want to live there. Maps and directions are helpful, but avoid references to religious institutions or racially significant landmarks, such as a development known for its history of excluding minorities.

Posting pictures of people, including residents, employees, and others also raises potential fair housing concerns. Just as in traditional advertising, it’s unlawful to use human models in photographs, drawings, or other graphics to indicate exclusiveness because of race, color, religion, sex, handicap, familial status, or national origin.

Coach’s Tip: Don’t forget fair housing rules when it comes to social media. Just as with other forms of advertising and marketing, it’s dangerous to post comments or pictures that imply a preference for or against anyone based on their race, color, national origin, religion, sex, disability, or familial status (unless the community qualifies as senior housing)—and any other characteristic protected under state or local law.

Rule #9: Use the HUD Logo

Use HUD’s fair housing logo and statement in your advertising and on your website. Though not required under fair housing law, use of the statement and symbol reinforces your community’s reputation as an equal housing opportunity provider by sending the message that your community is available to all persons regardless of race, color, religion, sex, disability, familial status, or national origin.

The size and placement of the logo depends on factors such as the type of media used and, in print media, the size of the advertisement. The HUD logo is available for download in various sizes at http://portal.hud.gov/hudportal/HUD?src=/library/bookshelf11/hudgraphics....

• Fair Housing Act: 42 USC §3601 et seq.