Deadly Fair Housing Sins: Part II

Emerging Trouble Spots under Fair Housing Law

This month, we finish our two-part lesson on deadly fair housing sins, old and new. Last month, Part I of the lesson covered the old—violation of federal fair housing rules that have been on the books for many years, but continue to trigger costly fair housing claims.

     Now onto the new—that is, emerging issues and trends that could lead to fair housing trouble. Many involve the application of federal fair housing protections based on race, color, religion, national origin, sex, disability, and familial status to new situations, including the Internet, online communications, and social media. Others involve expansion of the rules to cover other characteristics, including sexual orientation and victims of domestic violence.

     In this month’s lesson, we’ll review these new seven deadly sins of federal fair housing law—and suggest strategies to keep your community from committing them. Then you can take the Coach’s Quiz to see how the rules work in the real world.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability. In addition, some state and local laws offer fair housing protections based on other characteristics, such as marital status, age, sexual orientation or identity, and source of income.

     Fair housing law targets various discriminatory practices that either expressly or implicitly limit the housing choices of those protected under the law. For example, it’s unlawful to exclude or otherwise discourage prospects from living in a housing community or to provide them with different terms, conditions, or privileges of the housing because of a protected characteristic.

     In a separate provision, the FHA also makes it unlawful “to make, print, or publish, or cause to be made, printed, or published 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, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.”

     These provisions apply broadly to all spoken, written, and online statements—including words, phrases, pictures, symbols, and other graphic images—that suggest that the housing isn’t available to particular groups of people because of a protected characteristic, according to HUD. The test is whether the statement discourages an “ordinary reader or listener” from living in the community by suggesting that it has a preference for or discriminates against prospects, applicants, or residents based on a protected characteristic.

HOW TO AVOID COMMITTING THE NEW 7 DEADLY FAIR HOUSING SINS

 

Deadly Sin #1: Forgetting that Advertising Rules Apply to New Media

Community owners and property managers are increasingly directing more of their marketing focus online by maintaining their own Web sites and engaging with current and prospective residents via social media sites, such as Facebook, Twitter, and YouTube, among others.

     In turning to these new media sources, it’s easy to forget the basic fair housing rules banning discriminatory statements. 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.

     These rules were developed long before the Internet became part of daily life, but most experts agree that communities are accountable for discriminatory statements in any form of communications—whether online or in traditional media sources. Indeed, HUD has stated that the FHA’s ban on discriminatory advertising applies equally to traditional forms of media and the Internet.

     It’s obviously unlawful to advertise—whether in print or online—that a vacancy is unavailable to members of protected classes. Fair housing enforcement agencies and advocates are monitoring Craigslist and other online advertising sites to crack down on those posting ads that violate federal law—“No kids”—or state laws, such as those protecting source of income—”No Section 8.”

     Fair housing expert Nadeen Green predicts that fair housing advocates will be looking at social media for “advertising” violations because she believes that it is in fact advertising. She recommends that communities include the Equal Housing Opportunity logo or statement in online ads and on community Web sites to demonstrate their commitment to comply with fair housing law.

     Communities must be careful when posting pictures of people on their Web sites or social media outlets, Green says. In her opinion, those people are “human models” under fair housing law, which requires that they reflect diversity and representation of majority and minority groups. If your community doesn’t have diversity, it may not be a problem in and of itself. But a lack of diversity when posting photos of your residents could be problematic. She advises using stock photos along with your photos to depict a composite of diversity so that any “reasonable person” will believe he would be welcome at the community. She says it’s also wise to include photos of children (unless the property is senior housing) and people with disabilities. And if your staff is not diverse, don’t post their pictures on your Web site, she adds.

     Furthermore, community employees should be careful about how they engage in social media, Green says. For example, they shouldn’t “check out” potential residents on Facebook or other sites. If they do, it may create the perception that an application was denied because the leasing consultant or decision-maker disapproved of an applicant’s friends, family, or affiliations with organizations.

COACH’s Tip: Green warns that you shouldn’t post photos of anyone—including residents or employees—without first getting written permission to do so; otherwise, she believes that it’s an unauthorized use of a person’s image for commercial purposes. Develop a standard release form, which you can use whenever you want to include photos in your advertising and marketing materials.

Deadly Sin #2: Linguistic and Email Profiling

Fair housing testers are increasingly on the lookout for unlawful profiling—differences in the way that prospects are treated because of clues about their race, ethnicity, and other characteristics from the way they sound on the phone or the names or email addresses in online communications. Fair housing attorney Robin Hein notes that HUD and advocacy groups have shown renewed interest in testing, but he warns that it can be very difficult to know when a phone call or online inquiry is part of a fair housing test.

     Testing traditionally focused on race, but increasingly it’s being used to gauge discrimination based on national origin, familial status, disability, and characteristics protected under federal, state, or local law. Depending on what’s being tested, they may be checking how the prospects are being treated. For example, telling someone who speaks with an accent or whose name suggests that they’re a member of a minority group that you have no vacancies, but telling everyone else that you do have units available, will be viewed as a telltale sign of profiling. Or testers could be looking for more subtle forms of discrimination—a recent study of email profiling found that testers whose names sounded African-American received delayed, shorter, and curt responses in contrast to the quicker, longer, and more welcoming responses to those perceived to be white.

     But you can also get into fair housing trouble by the sin of omission—that is, by failing to follow up on phone calls or online inquiries from prospects whose voices, names, or methods of communication, or personal attributes suggest that they’re members of a protected class. Testers may be looking for discrimination based on familial status by checking to see the response rate to inquiries from prospects who disclose that they have children. If a community is found to routinely delay or neglect to respond to such inquiries, it’s likely to trigger further investigation to determine whether your community discriminates against families with children. 

     To protect yourself from even the appearance of unlawful profiling, it’s essential to develop policies and to thoroughly train your staff to follow up promptly with anyone who expresses an interest in living at your community, whether by phone, email, or through your Web site, advises fair housing expert D.J. Ryan. The policies should also ensure the consistency of responses, in both tone and the information conveyed. And, she adds, management should monitor compliance by spot-checking to ensure that employees are following up on all inquiries. 

Deadly Sin #3: Discriminating Based on National Origin

With the national debate on immigration reform far from settled, fair housing enforcement agencies and advocates have turned up the heat to target housing discrimination claims based on national origin.

     Addressing the issue of immigration and fair housing last year, HUD explained that immigration status doesn’t affect whether a person is covered under the FHA. Every person in the United States is protected by the law from discrimination based on race, color, national origin, religion, sex, familial status, and disability; such discrimination is illegal regardless of the victim’s immigration status, according to HUD. For example, HUD says that charging a different price or asking for additional identification documents because of a person’s national origin is illegal, regardless of immigration status.

     National origin discrimination means treating people differently because of their ancestry, ethnicity, birthplace, culture, or language, according to HUD. That means that people cannot be denied housing opportunities because they or their family are from another country, because they have a name or accent associated with a national origin group, because they participate in certain customs associated with a national origin group, or because they’re married to or associate with people of a certain national origin. According to the memo, examples include:

• Refusing to rent to persons whose primary language is other than English;
• Offering different rent rates based on ethnicity;
• Steering prospective residents to or away from the community because of their ancestry; and
• Failing to provide the same level of service or housing amenities because a resident was born in another country.

     HUD also clarified that community owners may ask for immigration documents. The agency explained that landlords may request documentation, including identity documents, and conduct inquiries to determine whether a potential renter meets the criteria for rental, so long as this same procedure is applied to all potential renters. If they ask for information from one person or group, they must ask for the same information from all applicants and residents.

     Nevertheless, the agency cautioned that procedures to screen potential and existing tenants for citizenship and immigration status may violate the FHA’s prohibitions on national origin housing discrimination. HUD said that it would investigate complaints alleging that a landlord inquired into a person’s immigration status or citizenship to see whether national origin discrimination may have occurred.

     Example: In July 2012, HUD announced a settlement with the owners and managers of an Alabama-based company to resolve allegations that they maintained a policy of discriminating against prospective tenants based on national origin. HUD alleged that the community required that prospective Hispanic tenants provide documentation of their immigration status, while not asking the same of non-Hispanic individuals. Allegedly, a fair housing tester posing as a prospective tester was asked, “Are you Hispanic?” When she said she was, she was allegedly asked to produce a green card or “work visa.”

     Without admitting any violation of federal fair housing law, the owner agreed to develop a plan to market housing opportunities to populations with limited English proficiency in its service areas and to provide translation services. The agreement will affect 9,406 housing units at 264 properties in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Mississippi, South Carolina, and Tennessee. The settlement also included $5,000 donations to a fair housing organization and a nonprofit organization that serves the Latino community [HUD v. Peachtree Apartments, July 2012].

     In a blog post commenting on the settlement, John Trasviña, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, wrote, “There are many questions housing providers will ask you when it comes to renting an apartment, buying a home, or applying for a mortgage. “Are you Hispanic?” shouldn’t be one of them. The law is clear—you can’t be treated differently based on your national origin. In short, your family tree doesn’t matter.”

COACH’s Tip: Some federally assisted housing programs are required to ask about an applicant’s immigration status. On the other hand, some state and local laws restrict the practice. For example, California bans inquiry into an applicant’s immigration status, so it’s unlawful to ask for information about an applicant’s immigration status or right to be in the United States. Meanwhile, New York City has extended fair housing protection to “alienage or citizenship status,” so communities may not ask for an applicant’s country of citizenship or whether he’s a U.S. citizen.

Deadly Sin #4: Discriminating Based on LGBT Status

Even though the FHA doesn’t protect sexual orientation or gender identity, fair housing experts warn against any form of discrimination based on LGBT (lesbian, gay, bisexual, or transgender) status. In more than 20 states and hundreds of municipalities, it’s unlawful to discriminate against applicants or residents based on sexual orientation; many also prohibit discrimination based on gender identity.

     HUD has pledged to closely examine complaints of sexual orientation or gender identity discrimination to determine whether they can be prosecuted under current federal law banning sex or disability discrimination. For example, HUD says that it may pursue a disability discrimination claim on behalf of a resident who says he’s being evicted because he’s gay and his landlord believes he’ll infect other residents with HIV. Similarly, the agency said it may pursue a sex discrimination claim on behalf of a female applicant who alleges discrimination by a landlord because she wears masculine clothes and engages in physical expressions that are stereotypically male.

     Meanwhile, HUD has adopted new rules to ban discrimination by the owners and operators of HUD-assisted or -insured housing based on actual or perceived sexual orientation, gender identity, or marital status. Except in limited circumstances, HUD-funded and -insured housing providers may not ask about sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available.

     The new HUD rule also protects same-sex married couples from discrimination in federally assisted housing. But even conventional housing communities may be affected by the national debate over same-sex marriage. Federal law restricts marriage to the union of one man and one woman—and the great majority of states have followed suit. The law in 32 states currently restricts marriage to opposite-sex couples, though some formally recognize committed same-sex relationships in the form of civil unions or domestic partnerships.

     Nevertheless, last fall’s election results may mark a turning point as voters in three states—Maine, Maryland, and Washington—approved ballot initiatives to recognize same-sex marriage. With the addition of those states, it means that 10 states, plus the District of Columbia, will permit gay and lesbian couples to marry, according to the National Conference of State Legislators (NSCL). In the past few months, advocates have begun organizing to press for similar measures in other states, such as Illinois and Rhode Island.

     Meanwhile, the national debate has shifted to the U.S. Supreme Court, which has agreed to review two cases involving same-sex marriage. One case involves California’s controversial Proposition 8, which in effect overturned a court ruling recognizing same-sex marriage by amending the state constitution.

     The other case, from New York, involves the federal Defense of Marriage Act (DOMA). Though DOMA doesn’t ban states from allowing same-sex couples to marry, its effect is to deny same-sex spouses any federal benefits based on marriage. Courts have ruled that denying lawfully married same-sex couples the same benefits that are available to opposite-sex spouses is unconstitutional. Both cases are scheduled for hearings in late March.

Deadly Sin #5: Mishandling Criminal Background Checks

Subject to state or local requirements, many communities conduct criminal background checks as part of the applicant screening process. To avoid a discrimination complaint, it’s important to apply your policies on criminal background checks consistently to all applicants, regardless of race, national origin, or other protected characteristic. Consistency is also required in decisions about whether to exclude applicants based on the results of criminal background screening. It’s unlawful for a housing provider to use the results of criminal background checks to reject applications from members of protected classes, while overlooking similar results for other applicants.

     But lack of consistency isn’t the only potential fair housing problem that can arise from criminal background checks. Increasingly, advocacy groups have attacked the use of criminal background screening itself, arguing that it has an unfair effect—in legal terms, a disparate impact—on members of certain racial and ethnic groups.

     The argument has gained ground with respect to employment discrimination claims. Last year, the Equal Employment Opportunity Commission (EEOC) issued new rules on the use of criminal arrest and conviction records in employment decisions, noting that exclusionary criminal records policies may have a disparate impact based on race and national origin.

     At this point, it’s unclear whether the argument will take hold in the housing arena, particularly in light of the legal battle over whether the FHA even covers disparate impact claims. Although it’s written into federal employment law, it’s not specifically addressed in the federal fair housing law. HUD and some courts believe the FHA does cover disparate impact claims, but the issue is currently under review by the U.S. Supreme Court.

     In the meantime, fair housing experts say that communities with criminal background policies should ensure that they’re reasonable and related to legitimate business interests—that is, to prevent criminal activity and protect residents’ safety and property. For example, they warn against an overly broad policy that excludes anyone with a criminal record—no matter the offense or how long ago it occurred.

COACH’S Tip: In letters sent to public and HUD-assisted communities last year, HUD Chief Shaun Donovan acknowledged that they are legally required to conduct criminal background screening and exclude convicted sex offenders and those with certain drug convictions. Beyond those restrictions, Donovan urged providers to exercise their discretion to admit others in a way that balances the needs of ex-offenders to return to their families in stable housing while ensuring the safety of all residents.

Deadly Sin #6: Neglecting Fair Housing Considerations in Hoarding Cases

If a problem with hoarding is discovered at your community, fair housing may not be among your first thoughts—but it should be, according to fair housing experts. Often, compulsive hoarding is a sign of a mental disorder. In fact, psychiatric experts are soon expected to categorize it as a separate diagnosis—Hoarding Disorder—when they vote on the latest version of the diagnostic manual used by mental health providers.

     Depending on the extent of the problem, hoarding may pose serious health and safety risks not only in the affected unit, but also in neighboring units and the community at large. Potential problems include noxious odors, pest infestation, mold growth, increased risk of injury or disease, fire hazards—even structural damage.

     Though your first impulse may be to order the resident to clean up or move out, doing so could trigger a disability discrimination complaint. The FHA offers an array of protections to individuals with disabilities—chief among them is the right to a reasonable accommodation. That means that housing providers may be required to grant reasonable requests to alter rules, policies, practices, or services when necessary to afford a person with a disability an equal opportunity to use and enjoy his housing.

     Fair housing law doesn’t require communities to grant accommodation requests that are unreasonable, such as allowing continuing serious fire or sanitary code violations that threaten the health or safety of other residents. But unless it’s unsafe to do so, it may be necessary to hold off on eviction proceedings to allow enough time for the resident to clean the place up. Make sure that you don’t set overly stringent standards of cleanliness—all that’s required is that the resident corrects technical violations of health and safety codes. It may take multiple attempts, extended deadlines, or outside help to alleviate problems inside the unit.

     If the resident doesn’t make headway despite these measures, then you may have grounds to evict the resident to preserve the health and safety of other residents and avoid further property damage. In any event, you should get legal help and document the entire process to prevent or defend a potential fair housing complaint.

Deadly Sin #7: Punishing the Victims of Domestic Violence

Domestic violence has been described as an epidemic that cuts across age, race, or socioeconomic status, but it may not come to light until a 911 call or repeated complaints from neighbors. In the aftermath, sometimes communities take action to evict the victim for property damage or from interfering with her neighbors’ peaceful enjoyment of the property.

     In some cases, domestic violence survivors may pursue claims of sex discrimination under the FHA, according to a 2011 analysis by HUD. Since statistics show that women are overwhelmingly the victims of domestic violence, HUD reasoned that discrimination against domestic violence survivors is almost always discrimination against women. Consequently, HUD says that domestic violence survivors who are denied housing, evicted, or deprived of assistance based on the violence in their homes may be entitled to protection under the FHA provisions banning sex discrimination.

     Example: In February 2012, HUD charged the owner of Mississippi community with violating the FHA’s ban on sex discrimination by evicting a victim of domestic violence. The charge alleged that the owner evicted the female resident because of domestic violence by her estranged boyfriend under a policy terminating a lease if police are repeatedly called. According to HUD, enforcing the policy amounted to sex discrimination based on its discriminatory effect—that is, disparate impact—on women, pointing to statistics showing that most domestic violence victims are women [HUD v. Escatawpa Village Associates, Limited Partnership, February 2012].

     Meanwhile, some communities may be subject to state and local laws aimed at protecting domestic violence victims. A handful of state and local governments specifically ban domestic violence victims from housing discrimination. Many more have adopted special provisions for domestic violence victims, including the right to defend eviction proceedings due to alleged criminal activity or other lease violations if they can prove that the incidents are related to domestic abuse. Consequently, it’s a good idea to get legal advice before initiating eviction proceedings for lease violations against a resident who may be a domestic violence victim.

COACH’s Tip: Federally assisted housing communities must comply with the Violence Against Women Act (VAWA), which bars discrimination against victims of domestic violence, dating violence, and stalking in public housing and Section 8 voucher and project-based programs. Among other things, the VAWA bars those communities from evicting a domestic violence victim based on an incident of actual or threatened violence.

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

COACH Sources

Doug Chasick, CPM®, CAPS, CAS, Adv. RAM, CLP, SLE, CDEI: The Apartment Doctor, 180 Heron Drive, Melbourne Beach, FL 32951; (888) 222-1214; dchasick@aptdoctor.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.

D. J. Ryan: Fair Housing Specialist, Director of Client Education, Kimball, Tirey & St. John LLP, 7676 Hazard Center Drive, #450, San Diego, CA 92108; (619) 234-1690; DJ.Ryan@KTS-LAW.com.