Fair Housing Highlights from NAA’s 2012 Educational Conference

Fair housing was on the table at the National Apartment Association’s annual Educational Conference & Exposition held in Boston last month. Among the many educational sessions were presentations by Fair Housing Coach Advisory Board members on key fair housing challenges faced by rental housing owners and managers. Here are some highlights:

The Epidemic of Hoarding

Coach Advisory Board member D.J. Ryan and attorneys Kathy Belville and Craig McMahon, of California-based Kimball, Tirey & St. John LLP, explained how the aging population, the increased opportunity for compulsive buying, and other factors have led to what has—and will continue to be—an epidemic of hoarding in rental housing communities. Statistics indicate that between 2 and 5 percent of the population—some 15 million older Americans—have this problem. And it raises fair housing issues because it’s often a symptom of an underlying physical or mental disorder, and mental health experts are likely to formally recognize it as a separate disorder in 2013.

Why is it your problem? Because of the health and safety risks stemming from poor sanitation, mold, fire dangers, structural hazards, and lack of access. It’s also difficult to address the problem—not only because of the sheer volume of potentially dangerous materials, but also because hoarders often deny there is a problem—considering themselves savers, not wasters, or believing their possessions are valuable, not junk. There are resources available, but the experts say the best approach is “Sugar, Not Salt”—that is, working to gain cooperation through trust, rather than threatening eviction, which could make matters worse.

COACH’s Tip: For more information, see the Coach’s December 2011 lesson, “How to Comply with Fair Housing Law When Dealing with a Hoarding Problem,” available in our online Archive.

Law and Order: Fair Housing Implications for Criminal History Screening

Coach Advisory Board members Doug Chasick and attorney Theresa Kitay, along with attorney Kathelene Williams, discussed the fair housing challenges of conducting criminal background screenings. Though housing providers have legitimate concerns about safety and crime in their communities, concerns have been raised about the potentially discriminatory effect—that is, disparate impact—of criminal background screening on protected classes, even when applied consistently with no discriminatory intent.

With the exception of a few jurisdictions, criminal history is not a protected characteristic, but that does not prevent someone from suing for fair housing violations when criminal background screenings exclude them. Consequently, the goal is risk management—that is, to refine a criminal screening policy to reduce the likelihood of a complaint. Among other things, the experts discussed using convictions, rather than arrests; adopting appropriate “look-back” periods to limit the date of disqualifying convictions; and defining categories based on the seriousness and type of criminal conviction.

COACH’s Tip: For more information on criminal background screenings, see the Coach’s June lesson, “The Do’s and Don’ts of Conducting Criminal Background Checks, available on our homepage at www.FairHousingCoach.com.

The “Fair Housing Five” Discuss What’s Up for 2012

Coach Advisory Board member Doug Chasick moderated a panel discussion on emerging fair housing concerns with attorney Kathelene Williams and fellow Board members Nadeen Green, Robin Hein, and Theresa Kitay.

Nadeen Green started off by discussing how testing has evolved from in-person visits to telephone calls to detect linguistic profiling—and the recent trend to perform email tests to detect profiling based on the name used in the email. She cited a recent study, which used birth certificates to identify “black names” and “white names”—those statistically used more often for African-American and Caucasian males, respectively, born in the mid-1970s. Assigning those names to fictional prospects, the researchers sent emails in response to the same Craigslist ads on the same day and found that landlords favored whites by responding quicker, writing emails that are longer, and using more positive language in their replies.

In his presentation, Robin Hein emphasized the obligation of owners and managers to make reasonable accommodations in policies and procedures if requested by a person with disabilities, regardless of when the property was built. Requests for parking spaces, service animals, ramps, and wider doorways are among the types of reasonable accommodations that must be allowed when needed by a person with disabilities, unless there is some unusual aspect of the request that makes allowing it difficult or expensive to achieve. Even in such cases, he cautioned that if there is a less expensive or burdensome way to provide a reasonably similar equivalent, owners and managers should offer that alternative.

Theresa Kitay focused on accessibility issues, emphasizing the differences in two federal laws—the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). Except for student housing, she explained that the ADA does not apply to residential housing, other than places of “public accommodation”—typically the leasing or sales office and the parking serving the office. But, she noted, the FHA has accessibility requirements for multifamily housing built after 1991—and that litigation over FHA accessibility continues.

Kathelene Williams described recent fair housing developments, including HUD's March 2012 regulations prohibiting discrimination based on marital status, sexual orientation, and gender identity in HUD-funded or -insured housing. She also highlighted a recent HUD charge applying the concept of the Violence Against Women Act (VAWA)—the law banning discrimination against domestic violence victims in federally assisted housing—to private landlords under the disparate impact analysis. The charge involved the eviction of a woman because of domestic violence by her estranged boyfriend under a policy terminating a lease if police are repeatedly called. According to HUD, enforcing such a policy amounted to sex discrimination based on its discriminatory effect—that is, disparate impact—on women, based on statistics showing that most domestic violence victims are women. The case is still pending.