Everything You Always Wanted to Know About Sex (Discrimination) … But Were Afraid to Ask

In this month’s lesson, the Coach reviews fair housing rules banning discrimination based on sex. While the basic rules prevent you from giving preferential treatment to either men or women because of their gender, the law has evolved to outlaw a broad range of discriminatory practices based on sex.

Chief among them is sexual harassment, a form of sex discrimination, which can cost thousands—and in some cases, millions—in settlements or court awards, civil penalties, and attorney’s fees, not to mention lasting damage to the reputation of the community, management, and individuals involved.

For example, last year, a court approved the distribution of a portion of a $2.7 million settlement in a sexual harassment case against a North Carolina public housing agency that administers the Section 8 voucher program. In its complaint, the Justice Department alleged that two of the housing agency’s employees subjected female program participants and applicants to unwanted sexual comments, sexual touching, and other sexual acts; conditioned or offered Section 8 benefits in exchange for sexual acts; and took adverse housing actions against those who rebuffed their sexual advances. The complaint alleged that the men engaged in this conduct while exercising their authority as employees of the housing agency, which failed to take reasonable preventive or corrective measures [U.S. v. Southeastern Community and Family Services, Inc., March 2016].

You could also face a fair housing complaint based on seemingly neutral policies that have a discriminatory effect based on sex—even if there’s no intent to discriminate. For example, you could get into fair housing trouble in the way you apply your occupancy policies to pregnant women.

In some cases, you could face a fair housing complaint if you’ve discriminated against someone based on his or her failure to conform to gender stereotypes—that is, the characteristics or behaviors traditionally associated with either one sex or the other.

In this issue, we’re going to explain everything you need to know about the rules banning discrimination based on sex—and offer five rules to help you head off potential problems that could lead to a fair housing complaint. 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 discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability.

The sex discrimination provisions, added to the law in 1974, were designed to end housing practices based on sexual stereotypes—that is, the assumption that men could perform tasks related to the ownership or rental of housing better than women could. Nevertheless, the law applies equally to discrimination against men and women.

The FHA doesn’t define “sex,” but fair housing attorney Lynn Dover explains that the law covers sex in two ways. The first, and most traditional, is also the most basic: male vs. female, which is generally a matter of biology. In general, it means that you could face a sex discrimination claim for showing a preference for—or against—either men or women because of their sex. 

The other, and less obvious, is based on gender, which is a matter of behavior—that is, the roles, expectations, or activities normally associated with either being male or female, Dover says. Depending on the circumstances, you could face a sex discrimination claim for rejecting applicants whose behavior doesn’t conform to traditional sex-based stereotypes about how they’re supposed to act.

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex, according to HUD. Most claims of sexual harassment are filed by women, but the law protects both men and women from sexual harassment—whether the perpetrator is male or female. The key is that the unwelcome sexual conduct is directed at a particular individual because of his or her gender, so it doesn’t matter whether the harassment is motivated by sexual desire or by hostility toward a particular gender—or if the harasser and the victim are of the same sex.

Another potential source of sex discrimination claims are community policies that appear to be neutral, but have an unlawful discriminatory effect (or disparate impact) based on sex—even if there’s no intent to discriminate. As an example, consider crime-free and similar policies that penalize residents for criminal activities or excessive calls for police or emergency services. Though aimed at preserving peace and safety, policies like these have triggered complaints of sex discrimination when they’ve been enforced to evict domestic violence victims, the vast majority of whom are women.

Note that public and federally assisted housing communities must comply with the federal Violence Against Women Act (VAWA), which bans discrimination against victims of domestic violence, dating violence, sexual assault, or stalking. For years, the law applied only to public housing and Section 8 voucher and project-based programs, but in 2013, the law was expanded to cover Low-Income Housing Tax Credit properties and other HUD programs. Since VAWA has very strict requirements, Dover says that it’s important for anyone working in those types of housing to be thoroughly schooled in its requirements.

Finally, the FHA’s ban on sex discrimination may apply to some claims for discrimination based on sexual orientation or gender identity. The FHA does not include sexual orientation in the list of protected classes and, for most of its history, the courts have refused to interpret the ban on sex discrimination to cover claims based on sexual orientation. Nevertheless, courts have been willing to consider claims involving sexual stereotyping—that is, discrimination against an individual whose personal characteristics do not conform to gender stereotypes.

Coach’s Tip: Check your state and local fair housing laws—and how they define “sex.” In California, for example, Dover says that the state’s antidiscrimination law defines “sex” to include pregnancy and childbirth, or medical conditions related to them. California law also specifically includes the protected classes of sexual orientation, gender, gender identity, and gender expression.

TIME OUT!

Update: Harassment Regulations

In September 2016, HUD adopted final regulations on fair housing protections for victims of harassment based on race, color, religion, national origin, sex, familial status, or disability. The new regulations cover “quid pro quo” harassment and hostile environment harassment in both private and publicly assisted housing.

Harassment in housing threatens a resident’s safety and privacy in her own home, according to HUD. In its experience enforcing the FHA, HUD said that low-income women—often racial and ethnic minorities and persons with disabilities—may be particularly vulnerable to sexual harassment in housing. HUD’s final rule on harassment in housing includes formal uniform standards for evaluating claims of hostile environment and quid pro quo harassment in the housing context:

• Quid Pro Quo (“this for that”) Harassment involves subjecting a person to an unwelcome request or demand and making submission to the request or demand a condition related to the person’s housing.
• Hostile Environment Harassment involves subjecting a person to unwelcome conduct that is sufficiently severe or pervasive such that it interferes with or deprives the person of the right to use and enjoy the housing.

The new rules also clarify when housing providers and other covered entities or individuals may be held directly or vicariously liable under the Fair Housing Act for illegal harassment or other discriminatory housing practices.

5 RULES FOR AVOIDING SEX DISCRIMINATION CLAIMS

Rule #1: Treat Prospects and Applicants the Same Regardless of Their Sex

Under the FHA, it is unlawful to discriminate against applicants based on their sex. That means it is unlawful to reject applicants—of either sex—based on preconceived notions that applicants of the other sex would make better residents. Making decisions about whether to accept or reject applicants based on their sex can lead to costly fair housing litigation, particularly when combined with allegations of discrimination based on familial status or another protected characteristic.

Example: In November 2016, the Justice Department filed a complaint against the owner of a three-unit rental community in South Dakota for discrimination based on sex and familial status. The complaint alleged that the owner refused to rent a unit to a woman and her 17-year-old daughter because she would be concerned about any woman being alone there and she had “always rented to bachelors” [U.S. v. Kelly, 2016].

Apply the same screening standards regardless of an applicant’s gender. You’re allowed to investigate an applicant’s background, financial ability, and general responsibility, but it’s unlawful to apply more stringent rental requirements to female applicants than male applicants (or vice versa).

Take care to avoid applying different rental criteria to pregnant women—or those who are on maternity leave—who may claim discrimination based on sex as well as familial status, which protects both pregnant women and those with children under 18. In recent enforcement efforts, HUD has been targeting policies that discriminate against women who are pregnant or on maternity leave. So far, the focus has been on discriminatory lending policies, but the same principles apply to discriminatory rental practices.

Example: In May 2017, HUD announced that a California credit union has settled a maternity discrimination complaint alleging that it denied a married couple’s mortgage loan because the wife was on maternity leave. In their HUD complaint, the couple alleged that the credit union unfairly denied their mortgage loan and that the lender requested that the woman return to work and provide a current pay stub before it would approve the loan application. HUD said that refusing to provide a mortgage loan or mortgage insurance because a woman is pregnant or on family leave violates the FHA’s prohibition against sex and familial status discrimination, which includes discrimination against individuals who have or are expecting a child. Since 2010, HUD has received nearly 150 complaints alleging maternity leave discrimination and has obtained more than $8 million in compensation for victims.

You could also trigger a fair housing complaint if you discount amounts received in alimony or child support in determining whether an applicant can meet your income requirements. Since most recipients of alimony and child support are women, you could face a claim that the policy unfairly discriminates against applicants because they are women. Depending on where you’re located, you could also trigger a fair housing complaint under state and local laws banning discrimination based on lawful source of income, such as child support.

Coach’s Tip: Be careful to avoid fair housing trouble when applying occupancy standards to pregnant women. If, for example, a woman would qualify for your one-bedroom units based on her current household size (not including her unborn child), Dover warns that you could face a complaint if you don’t tell her about an available unit because she’ll be over occupancy for the unit once she has the baby.

Rule #2: Watch What You Say—and How You Say It

Be careful about what you say—and how you say it—to avoid any suggestion that you have a preference for or against applicants based on their sex. It doesn’t matter if it’s in a phone call or meeting, or in an email or text message, or in your print or online advertising: “Never say anything that expresses a limitation or preference based on sex,” warns Dover.

That’s because the FHA makes it unlawful to make, print, or publish statements or advertisements that express a preference, limitation, or discrimination based on sex or other protected characteristics. Under these rules, your intent doesn’t matter. Simply making discriminatory statements—regardless of why you’re saying it—is a violation of fair housing law.

Keep these rules in mind when talking to prospects over the phone or while meeting them in person. Don’t say anything to imply a preference for or against applicants of either sex. And watch your body language and facial expressions, which can be as powerful as words to indicate that someone may not be welcome at the community, Dover says. These nonverbal cues may not be unlawful in and of themselves, but when taken together with other actions, they could lead to a fair housing complaint—and expensive legal fees to defend, even if you win. To avoid any suggestion of an unlawful preference, Dover warns against bringing personal feelings about any protected class into the leasing office.

The ban on discriminatory statements also applies to your advertising, whether in print or online. Simply put, advertisements should not state or imply a preference, limitation, or discrimination based on sex, according to HUD’s advertising regulations (which have since been rescinded but continue to be a useful resource). According to the regulations, advertisements may not state or imply that housing is available to persons of only one sex and not the other, though there are exceptions involving shared living space and dormitories in educational institutions.

Be careful about using words or phrases that imply a preference based on sex and other protected characteristics. Fair housing advocates are actively monitoring online media to check for discriminatory ads, particularly anything suggesting a preference for singles or against families with children. For example, even though HUD says that the term “bachelor apartment” is commonly used as a physical description of a unit and doesn’t violate the FHA, it may be wise to avoid using such terms—if only to stay under the radar.

Example: In December 2015, a court issued the latest in a series of rulings in a fair housing case triggered by an online ad, which ran for less than two months in 2009. The case began when fair housing advocates in Ohio found a Craigslist ad stating, “Our one bedroom apartments are a great bachelor pad for any single man looking to hook up.” The advocates sued, alleging that the ad violated fair housing law based on sex and familial status. After two trials—and multiple appeals—a jury found that the ad was discriminatory, but that the advocates failed to prove that posting the ad caused any damages. A third trial was ordered to determine whether—and in what amount—the community was liable for damages [Miami Valley Fair Housing Center, Inc. v. The Connor Group, December 2015].

Rule #3: Enforce Zero-Tolerance Policy Against Sexual Harassment

Adopt a zero-tolerance policy against sexual harassment at your community. It’s important to have a clear, written policy that sexual harassment of any kind will not be tolerated at your community and that violations will bring prompt disciplinary action, up to and including termination. Require all employees—from leasing agents to maintenance workers, whether full- or part-time—to receive fair housing training, including your sexual harassment policy.

Property owners may be liable for sexual harassment, even if they didn’t personally engage in the sexual harassment of their applicants, residents, or their guests. Owners may be liable if they knew or should have known about sexual harassment committed by their employees or agents, but failed to do anything to stop it.

HUD takes an even stronger stance, asserting that owners or managers may be liable for the acts of employees or agents—regardless of whether they knew about or intended the wrongful conduct or were negligent in failing to prevent it from occurring. HUD explains that the law generally holds owners and managers accountable for acts committed by employees or agents within the scope of their work. For example, HUD says, if a manager authorizes a maintenance worker to enter a resident’s unit to make repairs, and the worker sexually harasses the resident, then the management company is legally responsible for the discriminatory actions of the maintenance worker. 

Example: In March 2017, a court issued the latest ruling in a sexual harassment case against the owners, managers, and employees of a 56-unit West Virginia community. In its complaint, the Justice Department accused a maintenance worker of sexual harassment, including:

• Conditioning or offering tangible housing benefits in exchange for sexual acts; 

• Coercing female residents to engage in unwelcome sexual acts;
• Exposing his body in a sexual manner to female residents;
• Making unwelcome sexual comments and unwelcome sexual advances to female residents, including subjecting female residents to unwanted sexual touching and other unwanted sexual acts; and

• Taking adverse housing actions, or threatening to take such actions, against female residents who objected to or would not continue to grant sexual favors. 

Last summer, the owner and property manager agreed to a $110,000 settlement with seven adult and four minor victims, along with a $10,000 civil penalty. And in the latest ruling, the court entered a $90,000 default judgment against the maintenance worker and two managers [U.S. v. Encore Management, March 2017].

To reduce the risks of a sexual harassment complaint, Dover recommends a code of conduct for maintenance workers and other staff members with access to residents’ units. The gist is that they are there to do a job, so they should do the job and then leave. It’s okay to be nice and friendly, she says, but employees should be warned against being overly nice, which could be misinterpreted.

Coach employees so they know what to do if a resident says or does something inappropriate, for example, by making suggestive comments while they’re trying to do their work. If the resident’s conduct makes the employee uncomfortable, then the employee should know that it’s okay to leave—and that he or she should document what happened and report it to management, Dover says. To protect him- or herself going forward, it’s a good idea to bring along a witness—such as someone from the maintenance department or the office. For the same reasons, Dover says that employees should be trained to never enter units if a minor is present without an adult at home—and to get someone else to come along if repairs can’t wait till later.

Rule #4: Don’t Punish Victims of Domestic Violence for Acts of Abusers

You’re entitled to protect the safety and peaceful enjoyment of the property by all your residents, but you could face a fair housing claim for sex discrimination if you take action to evict or otherwise punish victims of domestic violence for the actions of their abusers.

The FHA doesn’t specifically cover domestic violence victims, but HUD says that domestic violence survivors may pursue federal fair housing claims for sex discrimination in some cases. Based on statistics showing 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 said 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 2014, HUD investigated and resolved a complaint brought by a Pennsylvania woman who had been subjected to domestic violence by her ex-boyfriend. According to HUD, police warned her that if she made one more 911 call, she and her young daughter would be evicted from their home because the city’s nuisance ordinance operated under a “three strike” policy, allowing no more than two calls to 911 for help. As a result, HUD said, the woman was too afraid to call the police when her ex-boyfriend returned to her home and stabbed her. A neighbor called the police. A few days after the woman’s release from the hospital, HUD said that she was served with eviction papers under the ordinance. As part of the settlement, the city paid the victim $495,000 and repealed the ordinance.

Dover says it’s important to become familiar with state and local laws related to domestic violence. A few states have taken a comprehensive approach by expanding fair housing laws to ban discrimination against domestic violence victims. Many more have come up with specific provisions in landlord-tenant laws to address the most common issues affecting rental housing, such as rules allowing victims to change locks or obtain an early lease termination.

TIME OUT!

Update: Domestic Violence Guidance

In September 2016, HUD released a new guidance on local “nuisance ordinances” that may lead to housing discrimination against survivors of domestic violence and other people in need of emergency services. HUD said that the guidelines were intended to inform state and local governments, as well as private and public housing providers, as to how HUD will assess nuisance or crime-free housing ordinances, policies, or practices alleged to be discriminatory under federal fair housing law.

The guidance addresses ordinances that penalize residents for a small number of 911 calls to police, even when a person is in need of protection from domestic violence or another crime. Nuisance ordinances often require or allow landlords to evict residents in such circumstances, which discourages victims from reporting domestic abuse or other crimes and obtaining the emergency police and medical assistance they need. HUD says that these types of ordinances violate the FHA when they have an unjustified discriminatory effect or are enacted or enforced to intentionally discriminate because of a protected characteristic.

Rule #5: Avoid Discrimination Based on Sexual Orientation and Gender Identity

These days, it’s risky—if not illegal—to discriminate against people based on sexual orientation and gender identity. That’s because of the numerous laws and regulations—on the federal, state, and local levels—that ban housing discrimination based on sexual orientation or gender identity.

Although the FHA does not specifically list sexual orientation and gender identity as protected classes, discrimination against people based on their sexual orientation or gender identity could trigger a sex discrimination claim under federal fair housing law.

Example: In the first ruling of its kind, a court held that a Colorado landlord’s refusal to rent to a lesbian couple, one of whom is transgender, amounted to discrimination because of sex under the FHA.

The case began when the married couple responded to a Craigslist ad for a townhome for themselves and their two minor children. After viewing the home, they alleged that the landlord refused to rent to them, saying that, among other things, the couple’s “unique relationship” would become a town focus and would jeopardize the landlord’s “low profile.” The couple sued the landlord for violating the FHA’s ban on discrimination based on sex and family status, and for discrimination based on sexual orientation under state law.

Siding with the couple, the judge explained that courts generally look to cases involving employment discrimination in housing discrimination cases. Though most courts have rejected sex discrimination claims based on sexual orientation or transgender status, the judge said that the couple’s claim was based on gender stereotyping—which courts have allowed in claims of employment discrimination based on sex under federal law.

In this case, the judge agreed with the couple’s claim that discrimination against women (like them) for failure to conform to stereotype norms concerning to or with whom a woman should marry and/or should have children is discrimination on the basis of sex under the FHA. “Such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping” [Smith v. Avanti, April 2017].

That’s essentially the position that HUD has taken for some time: Discrimination against a lesbian, gay, bisexual, or transgender (LGBT) person may be covered by federal fair housing law if it’s based on nonconformity with gender stereotypes. If a housing provider refuses to rent to an LGBT person because he believes the person acts in a manner that does not conform to his notion of how a person of a particular sex should act, then the person may pursue the matter as a violation of the FHA’s ban on sex discrimination. HUD offers some examples:

• A transgender woman is asked by the owner of her apartment building not to dress in women’s clothing in the common areas of the property. This is a violation of the FHA’s ban on sex discrimination.
• A property manager refuses to rent an apartment to a prospect who is transgender. If the housing denial is because of the prospect’s nonconformity with gender stereotypes, then it amounts to illegal discrimination on the basis of sex under the FHA.
• A female prospect alleges that a landlord refused to rent to her because she wears masculine clothes and engages in other physical expressions that are stereotypically male. If true, this may violate the FHA’s ban on discrimination based on sex.

Aside from federal requirements, many communities are subject to state or local fair housing laws protecting LGBT individuals. At last count, 22 states and the District of Columbia ban housing discrimination based on sexual orientation; all but two also ban discrimination based on gender identity, gender expression, or transgender status. In addition, hundreds of county, city, and municipal governments have expanded fair housing protections to ban discrimination based on sexual orientation or gender identity. A map showing statewide housing laws and policies banning discrimination based on sexual orientation or gender identity as of April 2017 is available on the Human Rights Campaign’s website at http://www.hrc.org/state-maps/housing.

Coach’s Tip: If your community receives HUD funding or has loans insured by the Federal Housing Administration, you are subject to HUD’s Equal Access Rule, which requires equal access to HUD programs without regard to a person’s actual or perceived sexual orientation, gender identity, or marital status. HUD’s Equal Access Rule can be found here: https://portal.hud.gov/hudportal/documents/huddoc?id=12lgbtfinalrule.pdf

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

Coach Source

Lynn N. Dover, Esq.: Partner, Law Offices of Kimball, Tirey & St. John LLP, 7676 Hazard Center Dr., Ste. 900, San Diego, CA 92108; (619) 234-1690; lynn.dover@kts-law.com.