Don’t Let Fair Housing Fears Keep You Up at Night

In honor of Fair Housing Month, we’re going to tackle a subject that you may be losing sleep over but don’t talk about: fear of getting a fair housing complaint. No doubt, you’re well aware of the potentially devastating consequences faced by communities embroiled in fair housing litigation. With increasing regularity, there’s news of yet another community paying out thousands—sometimes millions—to resolve fair housing disputes. And it’s not hard to imagine other, less publicized, consequences, including damage to the community’s reputation and potential job loss for the individuals involved.

Or maybe you’ve been confronted by, or heard about, unhappy residents or applicants who threaten discrimination claims. Maybe it’s a resident facing eviction or an applicant whose application has been rejected, though it could be anyone who believes he’s being treated unfairly and claims that he’s being discriminated against. It may be a simple misunderstanding, or the person could be trying to intimidate you into giving him something he wants. Whatever the circumstances, you shouldn’t allow fear of a fair housing claim to throw you off your game.

In this lesson, we’re going to tame fair housing fears so you’ll be empowered to deal with accusations or threats from unhappy applicants or residents. We’ll review the law to help you sort out legitimate concerns from groundless accusations—and the gray areas in between. Then we’ll suggest five rules to help you to handle the situation and, if necessary, defend yourself against fair housing claims. 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) is a federal law that bans housing discrimination on the basis of race, color, religion, national origin, sex, disability, and familial status, which are often described as “protected classes.”

In a nutshell, the FHA makes it unlawful to deny housing to someone—or treat him adversely—because he is a member of a protected class. When it comes to prospects and applicants, examples of illegal discrimination include falsely denying that a unit is available, quoting higher rents, or steering people away from living in your community because of their race or other protected characteristic. Illegal discrimination against residents includes denying access to community facilities, failing to provide or delaying maintenance services, or penalizing residents more harshly than others for lease violations because they are members of a protected class. The key is that discrimination generally means treating someone badly—because of his or her race, color, religion, national origin, sex, disability, or family status. It can also mean giving an illegal preference to one group over another because of a protected status.

The law goes further to recognize another form of discrimination, but it applies only to individuals with disabilities. Under the FHA, it’s unlawful to refuse requests for reasonable accommodations or modifications when necessary to allow individuals with disabilities to fully use and enjoy a dwelling. Reasonable accommodations are exceptions to your rules, policies, procedures, or services; reasonable modifications are structural changes to the unit or common areas at the resident’s expense.

The FHA’s disability rules can be complicated, but they generally require communities to grant requests when there’s a clear connection between the individual’s disability and the requested accommodation or modification. But the law doesn’t require communities to grant requests for whatever the resident wants—if it’s unrelated to a disability or it’s not necessary for the individual with a disability to use and enjoy the dwelling. A complicating rule under the FHA is that the landlord may actually favor or provide a preference for persons who are disabled, while such preferences are illegal for any other protected class.

5 RULES FOR CALMING FAIR HOUSING FEARS

Rule #1: Remember that Knowledge Is Power

Knowledge is power, so knowing what is—and is not—discrimination will help keep things in perspective if you’re accused of housing discrimination by unhappy residents or applicants. By understanding the basics, you’ll be able to recognize whether a resident is raising a legitimate concern, is simply unhappy about a situation—or worse, threatening a discrimination claim to get something that she wants.

Unfortunately, you could be accused of discrimination from disgruntled applicants and residents for reasons that have nothing to do with any protected class. In these cases, residents may not understand—or care about—the fine points of the law; all they know is that they think they were treated unfairly, says fair housing attorney Robin Hein. “A tenant who feels mistreated or senses unfairness may confuse that with discrimination and use the fair housing complaint process to fight back,” he says.

Example: In April 2014, a Michigan court rejected a discrimination claim filed by an African-American resident after he and his girlfriend were evicted. The case stemmed from a dispute about dogs. The girlfriend wanted a Chihuahua puppy, but the landlord flatly refused their request while allowing their neighbor, Charles, to have a pit bull. The girlfriend complained to the landlord that Charles’ pit bull was barking every night and that Charles, whom she described as the maintenance man, kicked their door while yelling a racial slur. The landlord allegedly said the dog wasn’t going anywhere and invited them to move if they didn’t like it; instead, the couple started to withhold rent.

The landlord sued to evict them. The judge ruled that the landlord properly terminated the lease, and that immediate eviction was warranted, because the resident and his girlfriend hadn’t paid rent and because the girlfriend sprayed mace in the property manager’s face without any justification. And since the resident told the judge that he wanted to leave the premises, the judge signed eviction papers requiring them to vacate the unit.

After moving out, the resident sued the landlord for discrimination, seeking more than $1 million in damages. He claimed that the landlord discriminated against him by permitting his neighbor to have a dog after denying his request for a dog, and that the maintenance man, Charles, made a racially hostile comment.

The court dismissed the case, ruling that the resident couldn’t sue for discrimination simply because the landlord let his neighbor have a dog while he wasn’t so permitted. He wasn’t claiming that the landlord denied his request to keep a dog in his unit because of his race, color, religion, sex, familial status, or national origin—or that he had a disability that required him to have a service dog.

In reality, the resident didn’t claim that race (or any other protected category) played a part in any aspect of his relationship with the landlord, nor could he. He was evicted because of his failure to pay rent and the girlfriend’s misconduct—and he admitted that it was his own desire to end the lease.

The resident couldn’t turn his neighbor’s alleged use of a racially derogatory term into a fair housing claim against the landlord. He didn’t claim that the landlord told Charles to make the statement and he acknowledged that Charles was simply another resident. In court rulings, landlords haven’t been held responsible for discrimination based on a single word (however offensive) uttered by one tenant to another [Mauldin v. Klink, April 2014].

Rule #2: Sit Down and Listen

Don’t let fair housing fears overcome your basic common sense when dealing with unhappy residents. “Take a deep breath and ask yourself how smart it would be to pour gasoline on an already hot fire,” advises fair housing expert Anne Sadovsky.

Take a teammate or manager with you and invite the resident to share her concerns. Instead of reacting to her accusations, say nothing and allow her to vent, Sadovsky says. Try not to take it personally, and understand that people say and do things when they’re upset that they don’t always mean. She says that threats like, “I will call my attorney and sue you,” normally die down when you’re able to communicate calmly.

“Don’t interrupt, correct them, or tell them that they are wrong,” Sadovsky warns. Do tell them, when the opportunity arises, that you’d like the chance to gather more information, hear more of their concerns, and try to work things out.

Try to diffuse the situation by listening politely, acknowledging their feelings, and agreeing when you can, Sadovsky says. To calm things down, say things like, “I see where you are coming from,” “let me write this down,” or “I want to help resolve this,” she advises.

And watch your body language, Sadovsky adds. “Saying nice things and listening isn’t very effective if you stand or sit in a threatening way, cross your arms high on your chest, have a scowl or disgusted look on your face, or refuse to look them in the eye,” she says.

After the meeting, follow up on the resident’s concerns, regardless of how you feel about the merits of her complaint. Talk to the people involved. Take notes and assemble relevant records. Consider getting your attorney involved for legal advice about the best way to resolve the matter.

Rule #3: Get Help with Disability Claims

Pay particular attention anytime anyone raises disability-related concerns, complaints, or problems. The FHA requires communities to grant reasonable accommodation requests for exceptions to rules and policies when necessary to allow an individual with a disability to use and enjoy the property. But that doesn’t mean that it’s discrimination if you don’t give everyone everything that he wants merely because he says he has a disability. FHA disability claims now account for almost half of all housing discrimination complaints, so it’s a “red-flag” area whenever a tenant mentions a disability-related issue, Hein warns.

Misunderstandings can arise because people may not understand what the law actually says or means. For example, someone with a medical problem may consider himself to be disabled, but he may not qualify under the FHA’s technical requirements as an individual with a disability. It’s true that the law applies to a wide variety of physical and mental impairments, but the impairment must be serious enough to substantially limit one or more major life activities. Nevertheless, the resident may believe that she’s legally entitled to, say, an assistance animal—and accuse you of disability discrimination for denying her a reasonable accommodation.

Example: In April 2014, a court upheld an eviction against a resident for violating a community’s no-pet policy, despite her claims that she was disabled and needed her dog as an emotional support animal.

The resident’s lease provided that no pets would be allowed without the landlord’s prior written approval. The landlord previously gave her permission to have two cats, but later filed for eviction because she got a dog.

On the day of the eviction proceedings, the resident argued that the landlord couldn’t evict her because she had a prescription from a social worker to keep the dog as an emotional support animal. The landlord objected, arguing that she hadn’t seen the social worker’s statement before the day of the eviction. Since the social worker wasn’t present to testify, the court excluded the statement.

The resident testified that she had severe anxiety and severe allergies, which caused nausea and breathing problems and prevented her from working, and that her “tiny little dog” helped by getting her outdoors and detracting attention away from her. She said that she didn’t believe that she had to be medically diagnosed with a disability to keep the dog as an emotional support animal under fair housing law.

The court ordered her eviction, rejecting her claim that she had a disability for which her landlord had to make special accommodations.

On appeal, the court upheld the eviction. Although the resident believed that she had a disability, “merely having a disability does not make one disabled” under fair housing law. She didn’t produce any medical evidence to show that she had allergies and depression—or to corroborate her subjective testimony that her alleged ailments substantially limited any of her major life activities.

She also failed to prove the landlord knew—or should have known—about her alleged disability before filing for eviction. The resident lived there for years, but only got the dog a few months earlier, and she never claimed it was an emotional support animal until the day of the eviction proceedings [Mazzini v. Strathman, April 2014].

Even when residents have a qualifying disability, the law doesn’t require you to give them the exact accommodation that they want. For one thing, the requested accommodation must be necessary to enable the individual with a disability to use and enjoy the dwelling, which means that it must be clearly related to the individual’s disability. For another, it must be reasonable—that is, it mustn’t impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations.

It’s a good idea to get legal advice when confronted with disability-related requests, complaints, or concerns. The disability rules are complicated, so it’s sometimes hard to tell if a resident qualifies as having a disability—or is legally entitled to a requested accommodation. If not handled properly, disputes about disability-related requests often end up in court, and your attorney may help to resolve the matter before it comes to that. Hein says it’s usually best for the landlord to offer a safer, less burdensome, or less expensive alternative to the tenant’s requested accommodation to show the landlord made a good faith response to the request.

Rule #4: Stand Up to Bullies

Unfortunately, it’s all too common for unhappy applicants or residents to accuse you of discrimination or file a fair housing claim when things don’t go their way.

“Filing a fair housing complaint is one of the most frequent retaliation tactics that an unhappy tenant uses when he’s aware that the complaint process exists and how to use it to his advantage,” says attorney Hein. “If a tenant knows about the process, he also knows that it is free and invokes the considerable powers of the federal and state governmental enforcement agencies to investigate his claims.”

Hein says that the large majority of cases he handles lack substantial merit and end up being dismissed at the end of an investigation with a finding of no cause to believe that discrimination occurred.

But sometimes, merely the threat of a fair housing claim is used by residents as an intimidation tactic to get something they want, says fair housing attorney Laurence Harmon. For example, he says that tenants sometimes accuse the community of discriminating against them because management isn’t responding quickly enough to their service requests. And in one case, he says, a tenant threatened a manager with a discrimination complaint if she didn’t grant his request for a larger apartment. In another, he says, a tenant refused to comply with new rules regarding the timing of payment. Harmon says that it didn’t do any good for the manager to explain that the new rule applied to everyone—the tenant threatened to claim discrimination if the community tried to evict him.

Even if the landlord wins the fair housing claim, Hein points out that it may take a considerable amount of time and resources to respond to the investigation and dismiss the complaint. And the attorney’s fees and expenses of defending the claim can be considerable. Communities generally can’t recover their attorney’s fees for successfully defending against a housing discrimination complaint, even if it turns out the claim was unfounded. Furthermore, a landlord can’t threaten to evict or take other action against a resident who has threatened the landlord with a discrimination complaint.  A landlord’s “threat” under those circumstances could be considered unlawful “retaliation,” which is a separate violation of the FHA, even if the tenant’s original claim turns out to be groundless, Hein says.

Depending on the circumstances, threats like these can be very powerful. Everyone knows the potential consequences of a fair housing complaint—to the community facing enormous penalties, not to mention the time and money for defense costs, and to employees whose jobs and professional reputations are threatened. It’s natural to be taken aback by accusations of discrimination or threats of a fair housing complaint, but you don’t have to back down by giving in to unreasonable demands or looking the other way when residents commit lease violations.

Stand your ground and get help from your management—and your attorney, if necessary. Document what happened, pull together the necessary paperwork, and follow standard policies and procedures for dealing with troublesome tenants.

Rule #5: Reinforce Sound Management Practices

Still worried? Maybe it’s a sign that you need to beef up your fair housing program. Documentation and consistency are the best—and sometimes only—defenses against fair housing claims, so having written policies and procedures—along with well-trained staff—should allay fears of fair housing trouble.

“Sound training and following the rules are important,” says attorney Hein. “There is no reason for any properly trained staff to be ‘terrified’ in performing their jobs,” he says. Also, the staff member’s knowledge that the community owner and management will support her good faith management decisions and pay for defending groundless discrimination claims helps calm those fears. On the other hand, the staff should know that a blatant or intentional discriminatory violation or disregard of leasing policies could result in disciplinary action, including the loss of a job, he says.

Put your policies and procedures in writing to guide your staff on what to do (and not to do) and how to document files. Provide your staff with fair housing training—with an emphasis on good customer service and people skills—to empower them to deal with disgruntled residents and clear up misunderstandings that sometimes lead to fair housing complaints. And, of course, it’s important to keep good records—and to know when to get legal advice—to enable you to defend against accusations of housing discrimination.

Nevertheless, Hein always stresses during training that the mere fact that your community follows all the rules, dots the “i’s,” and crosses the “t’s” doesn’t mean that you will prevent or avoid a discrimination claim. “But it does mean that you should have all the documentation and evidence needed to mitigate or minimize the damages and win the case,” he says.

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

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COACH Sources

Laurence Harmon, Esq.: CEO, HarmonLaw, LLC, 15819 Elodie Lane, Minnetonka, MN 55345; (651) 900-3031; Harmonlaw@outlook.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.

Anne Sadovsky, CSP: Anne Sadovsky & Co., Dallas, TX; (866) 905-9300; anne@annesadovsky.com.

Carl York, CPM® Emeritus, CAM, CAPS: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.