Fair Housing Dos & Don'ts for Dealing with Prospects

In this month’s lesson, Fair Housing Coach spotlights fair housing problems that can arise when dealing with prospects. The majority of fair housing complaints occur during the apartment-seeking and rental-selection phase, says fair housing expert Shirley Robertson. And some have hit the news recently, with communities paying large settlements to resolve allegations that they turned away prospects for discriminatory reasons.

Example: In August 2014, an Ohio couple agreed to pay $850,000 to settle allegations of discrimination against African Americans and families with children at three communities they used to own. Among other things, the complaint accused them and their management companies of denying or misrepresenting the availability of units to African-American prospects and treating similarly situated African-American and white prospects and residents differently. In a ruling earlier this year, a court refused to dismiss the case, noting that the government offered testimony from at least 10 former employees that they had been instructed to discriminate against African-Americans with comments like “we got enough n******, we don’t need any more.” Others said that they were instructed to steer families with children away from upper-level units [U.S. v. Ruth, March 2014].

“It is a sad fact that decades after the passage of the Fair Housing Act, many people still face unlawful discrimination when looking for housing,” Molly Moran, Acting Assistant Attorney General for the Civil Rights Division, said in a statement. “The magnitude of this settlement makes clear that the Department of Justice will vigorously pursue violations of the Fair Housing Act.”

Focusing attention on the initial stages of the leasing process may also help you pass muster if your community is ever the subject of fair housing testing. At communities across the country, fair housing enforcement officials and advocacy groups are dispatching testers to check for differences in the way prospects are treated—in phone calls, emails, and site visits—based on protected class. Of course, differences don’t always mean discrimination, but it’s easy to jump to the conclusion that they do. That’s why it’s so important to avoid even the appearance of discriminatory intent in the way that prospects are treated.

In this month’s issue, we’re going to highlight some big DON’Ts—the kind of problems leading to fair housing complaints in the initial stages of the leasing process. For each one, we’ll offer some DOs—strategies for ensuring that your community has the policies, systems, and training in place to minimize the risk of fair housing trouble when dealing with prospects. Finally, you can take the Coach’s Quiz to see how much you’ve learned.  

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) prohibits housing discrimination based on race, color, religion, sex, familial status, national origin, or disability. And many states and local governments have expanded fair housing laws to add marital status, sexual orientation, source of income, and other protected characteristics.

Under the FHA, it’s unlawful to refuse to rent or otherwise make housing unavailable to prospects for discriminatory reasons. That means that you can’t deny housing or engage in more subtle discriminatory behavior, such as providing false or inaccurate information to prospects, because of race, color, or any other protected characteristic.

The FHA also makes it unlawful to discriminate in the terms, conditions, or privileges associated with the rental of a dwelling based on protected class. Examples include requiring higher rent payments or imposing more rigorous qualification standards because the prospect has children or a disability. It also includes unlawful steering, such as:

• Discouraging people from renting a unit because the prospect or current residents are members of a protected class;
• Exaggerating drawbacks or failing to inform prospects about desirable features of a unit or the community because they’re members of a protected class; and
• Assigning applicants to a particular section of a community or floor of a building because of race, color, religion, sex, familial status, national origin, or disability.

7 RULES FOR DEALING WITH PROSPECTS:

ESSENTIAL DOS & DON’TS

RULE #1:

DO Adopt a Fair Housing Policy

DON’T Turn Away Prospects Based on Protected Class

Everyone has the right to housing that they can afford and for which they qualify, says Robertson. It’s illegal to deny housing or make housing unavailable based on a prospect’s race, color, religion, sex, familial status, national origin, disability—or any other characteristic protected under state or local fair housing law.

There’s no excuse for excluding anyone because of his race, national origin, or any other protected class, says fair housing expert Anne Sadovsky. Usually it boils down to one of two things: either total ignorance or total disregard of the law. With so many ways to learn about the law—from the Web, local apartment associations, and elsewhere—she says there’s no reason for anyone to claim that he didn’t know housing discrimination is illegal.

Adopt a formal written fair housing policy to let everyone know that your community does not tolerate discrimination against anyone based on characteristics protected under federal, state, or local law. Put a policy in place and feature it prominently—along with an official Fair Housing poster—in your office. Include the policy in your marketing materials, application package, and operating policies and procedures to formally acknowledge your community’s commitment to fair housing principles and practices.

Having a formal policy won’t guarantee that you’ll never face a discrimination complaint, but it’s often the first document that fair housing officials look for when conducting an investigation. If a problem does come up, the policy sends a message that it’s a rare exception—not a policy or practice in your community—an important defense to discrimination claims.

RULE #2:

DO Apply Policies Fairly and Consistently

DON’T Treat Prospects Differently Because of Protected Class

To ensure compliance with fair housing law, it’s important to focus on fairness and consistency. The law prohibits communities from imposing different terms and conditions of tenancy based on protected class, so you can’t treat prospects differently because of their race, color, religion, sex, familial status, national origin, disability—or any other characteristic protected under state or local fair housing law.

Acts of blatant discrimination against racial and ethnic minorities are down, but more subtle forms of housing discrimination stubbornly persist, according to HUD’s most recent round of large-scale fair housing testing. Though few were denied an appointment to see an advertised unit, the study found that real estate agents and rental housing providers recommended and showed fewer available homes and apartments to African-American, Asian, and Hispanic families. The study, which involved 8,000 paired tests in 28 metropolitan areas across the country, concluded that this is a national, not a regional, phenomenon.

Example: In December 2013, the owner and manager of a 22-unit apartment complex in Westchester County, N.Y., agreed to pay $92,000 to settle allegations of housing discrimination against African Americans. Among other things, they were accused of failing to inform African-American prospects about available units, while telling white prospects that those units were in fact available. The complaint also alleged that they failed to show available units and give rental applications to African-American prospects, but showed available units and gave rental applications to white prospects. In addition, they allegedly quoted higher rent prices and less favorable security deposit terms to African-American prospects than those offered to similarly situated Caucasian prospects [U.S. v. 61 Main Street Corp., December 2013].

Having written policies and procedures—and applying them consistently—helps to reduce the likelihood that you’ll be accused of acting in a discriminatory or arbitrary manner when dealing with prospects and applicants. The policies reflect that your community does not make decisions about who lives there based on any characteristic protected under federal, state, or local law. They also show that everyone is subject to the same terms and conditions of tenancy, including financial requirements, such as fees and security deposits.

The policies and procedures should explain the steps in the application process and emphasize that your community applies reasonable, objective criteria to screen applications, such as credit and rental history requirements. The policy should indicate whether your community uses an independent screening service, and how information about credit, income, employment background, and other screening criteria is obtained and used to determine when applications are accepted. It also should describe how applicants are notified about approval or denial of applications; and that if an application is denied, the applicant will be provided with contact information of the verifying company for explanations.

RULE #3:

DO Focus on Fair Housing Training

DON’T Allow Personal Bias into the Leasing Office

Employee training is key to avoiding fair housing problems when dealing with prospects. It’s essential for everyone to understand the community’s commitment to fair housing principles and that discrimination based on race, color, religion, sex, familial status, national origin, disability—or characteristics protected under state or local law—will not be tolerated.

Don’t let personal beliefs, opinions, and judgments influence the way you treat anyone contacting, visiting, or living at your community. Avoid any suggestion of “unlawful “steering”—any comments or conduct that suggest prospects should or shouldn’t live in your community, or in a particular area within your community—because of their national origin or any other protected class.

Example: In January 2014, a Texas community agreed to pay $317,000 to settle a fair housing lawsuit alleging that it denied housing opportunities to persons of Middle Eastern and South Asian descent. Among other things, the complaint claimed that the former property manager ordered leasing agents to misrepresent apartment availability based on the accent and perceived race or national origin of potential tenants. Allegedly, she also told them to segregate approved residents of Middle Eastern or South Asian descent into two buildings to isolate any smells allegedly associated with ethnic cuisine that the manager reportedly disliked [U.S. v. Stonebridge at Bear Creek, LLP, January 2014].

Conduct regular fair housing training sessions to ensure that employees understand federal fair housing requirements as well as any applicable state and local fair housing laws. During the training, you should emphasize customer service skills so that employees understand the importance of treating everyone in the same courteous and professional manner. Once is not enough, says Robertson, who says that managers should review fair housing key points and updates at least quarterly in team meetings.

COACH’s Tip: New hires should receive some basic fair housing training on day one, before being allowed to interact with the public on the phone or in person, says Robertson. It should be required for all employees—not only members of the leasing and sales team, but also office personnel, maintenance workers, landscaping crews, pool attendants, and housekeeping staff—since any encounter with prospects, applicants, and residents could lead to fair housing problems.

RULE #4:

DO Follow Standard Protocol for Answering Inquiries

DON’T Ignore or Delay Responses

In the leasing office, it’s important to follow standard protocols for handling initial inquiries from prospects seeking information about an apartment or the community. There’s likely to be different procedures to handle inquiries, depending on whether it’s by phone, email, online, or in person. But whatever system is used, you should apply it consistently to avoid differences in whether—and how—you respond to the prospect’s inquiry.

Among other things, fair housing experts warn against linguistic 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.

A recent report on housing discrimination in Vermont found significant differences in treatment based on the results of linguistic telephone tests measuring housing providers’ treatment of applicants with linguistically identifiable white American, Hispanic, and foreign accents who called and asked about the availability of advertised units. There have been similar results in studies about email profiling, which 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.

Another problem stems from differences in the way that prospects communicate with the leasing office. In recent months, there have been several large-scale investigations into discrimination against deaf prospects using relay systems to inquire about available units.

Example: In May 2014, HUD announced that a national real estate company agreed to pay $175,000 to settle allegations that its communities in Texas and Georgia denied housing to deaf people. The settlement resolves allegations of discrimination based on a 2013 investigation by fair housing organizations. Testers posing as rental applicants who were deaf or hard of hearing called to inquire about rental units using the Internet Protocol (IP) Relay system, which allows deaf or hard of hearing individuals to communicate with hearing persons via phone using computer text.

The organizations claimed that agents for the company hung up on testers who used the IP Relay system or sent their calls directly to voicemail; in contrast, agents accepted calls from testers not using the IP Relay system. When agents spoke with testers using the IP Relay system, they allegedly quoted higher rental prices and failed to offer the same specials and amenities they offered to testers who did not use the IP Relay system. Agents also allegedly failed to follow up with testers who used the IP Relay system.

The settlement called on the company to provide both newly hired and current employees with fair housing training, including the use of assistive technology for the deaf and hard of hearing, such as telecommunications relay services. The company also agreed to adopt and distribute a written policy addressing equal access to housing opportunities for applicants with disabilities, including deaf and hard-of-hearing individuals, which outlines the correct handling of telecommunications relay calls and other types of communications with deaf and hard-of-hearing individuals.

The key to avoiding these types of problems is to adopt a standard format for responding to inquiries by phone, email, online, and in person. For all inquiries, the best policy is to have a deadline—to prevent them from going unanswered or receiving delayed responses, says fair housing expert Doug Chasick.

For email, Chasick recommends using a template that could be customized with the prospect’s name and terms of offer, but with standard language about the apartment home and the community. He says the same attachments should be sent to everyone, though it’s better to send links to brochures and other information about the community rather than large email attachments, which may bounce back or cause problems for prospects using mobile devices. And, if available on your email system, Chasick says it’s a good idea to request a read-receipt so you’ll know the prospect received your response.

RULE #5:

DO Keep Track of Available Units

DON’T Misrepresent Apartment Availability

Make sure you’re giving correct information when responding to inquiries about available units. Fair housing problems often arise when prospects or testers are told different things about whether—and what—units are available at the community and they suspect that they’re being given false information for discriminatory reasons.

Example: In April 2014, a court ordered the owner of rental communities in Virginia to pay $25,000 to resolve allegations of discrimination against African-American prospects, according to Housing Opportunities Made Equal (HOME), a Virginia-based fair housing organization. The complaint alleged that an African-American woman called about an advertised unit and was told it was already rented, but that a white prospect called right afterward and was told it was still available. HOME said its investigation confirmed her suspicions of housing discrimination. Allegedly, the owner told a white tester that the property was move-in ready and located in “a good neighborhood,” but discouraged an African-American tester from renting the same property, and steered her to other properties that were not yet available as he was still cleaning them out because “a bunch of damn n****** were living in ‘em.” [HOME v. Matthews, April 2014].

Even when there’s no discriminatory intent, mistakes about whether units are available can lead to fair housing problems. That’s why it’s so important to have a good system to track unit availability and “rent ready” progress, says Robertson. The system should include details about the time and date the unit became available and any changes in status so leasing agents have reliable information to pass along to prospects. It’ll also explain any apparent inconsistencies in what prospects are told within a short period of time. For example, if a family with children is told that nothing is available during an early morning phone call, but a childless couple is shown a unit that subsequently became available late that afternoon, the availability log would quickly show that the reason that they were treated differently was simply based on the timing—not discriminatory motives.

Leasing professionals and front desk team members must know that they are responsible and accountable for the information they convey and document, says Robertson. Failure to keep accurate and “up to the minute” leasing stats jeopardizes the whole team when a community is involved in a complaint or lawsuit, she says.

Chasick warns that fair housing claims can arise when employees ignore the protocol—for example, by relying on memory instead of checking the list when telling a prospect that a unit is available. If you don’t realize the mistake until after the prospect arrives in the office, an apology may not be good enough. If you suddenly change your story about the availability of a particular unit, someone could suspect that your belated discovery of the mistake is simply an excuse to cover up discriminatory motives.

RULE #6:

DO Follow Standard Procedures for Showing Units

DON’T Refuse or Limit Showings Based on Protected Class

Consider adopting written policies about when and how tours are conducted at your community. Having formal policies in place helps ensure consistency to ward off claims of unlawful steering or failure to show available units to prospects for discriminatory reasons.

Example: In June 2014, HUD announced that a Philadelphia-area real estate company agreed to pay $25,000 to resolve allegations that agents steered prospects to different neighborhoods because of their race. The complaint alleged that employees steered white testers posing as rental applicants to neighborhoods they described as safer, while directing black testers to areas agents considered “rough” [HUD Conciliation Agreement Between National Fair Housing Alliance and Brotman Enterprises, LLC, June 2014].

Your policies and procedures should include details about when your community will conduct tours. For safety reasons, the policy should describe weather conditions applicable to your area—such as temperature extremes, blizzards, or tornado warnings—when tours will not be conducted. Safety considerations will also dictate the timing for starting a tour. To avoid conducting tours in the dark, for example, the policy may state that tours must begin before a particular time or within a certain period before sundown.

Keep good records about everyone who visits the rental office—even if a prospect doesn’t go out on a tour. Whether by a computer system or traditional guest cards, the records should include the prospect’s contact information, what she’s looking for, and what happened during the visit. Include relevant information, for example, if you were unable to offer the prospect a tour due to extreme weather conditions at the time of the visit. That way, you can document the reasons for your actions, in case the prospect later claims she was denied a tour for discriminatory reasons.

RULE #7:

DO Follow Fair Housing Rules

DON’T Listen to Anyone Who Says It’s Okay to Discriminate

Watch out for any attempts by prospects or residents to influence you into committing a fair housing violation, warns fair housing expert Anne Sadovsky. You can’t allow their preferences to affect your obligation to comply with fair housing law.

Answering questions from prospects could lead to fair housing trouble if the response involves the race, ethnicity, or other protected characteristic of other residents in your community. It doesn’t matter whether the prospect asking the question is a member of the same protected class. If a prospect asks you a risky question, you can get into as much fair housing trouble by giving an inappropriate answer as you would if you volunteered the information yourself.

Be prepared for questions from prospects about people living in neighboring units or the reputation of the community or surrounding neighborhood, advises Robertson. Be polite, but firm, and offer a standard response, for example, by saying that your community policy and fair housing law does not permit you to answer the question.

Robertson emphasizes the need to coach leasing and sales teams to give similar answers to these anticipated sensitive and often uncomfortable questions. It’s not unusual for a fair housing test to compare answers from different sales and leasing team members at the same community, she says.

Sadovsky warns against allowing the preferences of current residents to influence how you do your job when renting nearby units. For example, you may have an elderly resident who’s lived in a first-floor unit for years when the unit above her becomes available. Even before you’ve shown it to anyone, she says she naps every afternoon and asks you not to rent the unit to anyone noisy. You could be accused of unlawful steering if you abide by her wishes and fail to mention or show the unit to prospects because they have young children, she says.

It’s a more sensitive issue if it’s your manager or the owner who says that things must be done in a certain way that you believe to be discriminatory. Sadovsky says it’s not uncommon for people attending her training sessions to approach her privately to ask what they should do in these sorts of situations. They fear losing their jobs if they object, but worry about getting into fair housing trouble if they comply.

Employees have good reason to worry about being called to account for discriminatory conduct, since employees, like owners and managers, may be liable for fair housing violations. Sadovsky’s general advice is for employees to do some research and go to the owner and manager to share their concerns. If he says he didn’t know that it’s a potential problem, then there’s an opportunity to dig in deeper and educate the boss about what’s required under fair housing law, she says.

But if the boss responds that he knows—and doesn’t care—that it’s a problem, then employees are faced with a difficult choice: to stay and engage in discriminatory conduct or leave and find another job. If they choose to stay, then they should, at the very least, document that they told the owner or manager about the problem, says Sadovsky. It might help in their defense if the discriminatory conduct comes to light—or support a retaliation claim if the employee is fired or subjected to other adverse employment action for speaking up against unlawful discrimination.

• 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 Dr., Melbourne Beach, FL 32951; (321) 956-2188; dchasick@aptdoctor.com.

Shirley Robertson, CPM, ARM, Adv RAM, CLP: Director, Equal Housing Opportunity & ADA, Southern Management Corp., 1950 Old Gallows Rd., Ste. 600, Vienna, VA 22182; (703) 902-9423; workshopsbyshirley@verizon.net.

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