Group Claims Landlord's LEP Policy Discriminated Against Applicants

A not-for-profit group advocating against housing discrimination sued a New York landlord for violations of the Fair Housing Act (FHA) and the New York State Human Rights Law (NYSHRL) based on refusal to rent to a prospective tenant with limited English proficiency (LEP). The group claimed that the landlord discriminated against a prospective tenant whose primary language was Spanish. The landlord wouldn't rent an apartment to this tenant unless someone who spoke English lived with her at the building. The group also had several testers inquire about rentals with similar results. The group argued that landlord's LEP policy disproportionately and unjustifiably impacted prospective tenants on the basis of their national origin and race.

The landlord asked the court to dismiss the case, arguing that: (a) a prospective tenant's language or LEP status wasn't a protected class under the FHA or NYSHRL; and (b) the complaint failed to otherwise identify the prospective tenants' race or national origins.

In response, the group argued that, consistent with HUD guidance and case law, a prospective tenant may adequately plead discrimination based on race or national origin using proof of a housing policy employing language-related criteria. The U.S. government submitted a statement of interest supporting the group’s position.

The court ruled against the landlord and wouldn't dismiss the case. The court gave deference to a 2016 HUD Guidance that had concluded that LEP was often used as a pretext for national origin or race discrimination and that the FHA may therefore be violated by "selective application of a language-related policy, or use of LEP as a pretext for unequal treatment of individuals based on race, national origin, or other protected characteristics." The court also found that nothing in the language of the FHA or related regulations prohibited the use of proof of LEP criteria as a pretext for race or national origin discrimination. And the group didn't need to identify the specific national origin or race of particular tenants in order to state an initial case of discrimination under the FHA [CNY Fair Hous., Inc. v. Swiss Vill., LLC: Dckt. No. 5:21-CV-1217 (MAD/ML), 2022 U.S. Dist. LEXIS 120385 (NDNY; 7/8/22; D'Agostino, USDJ)].

To learn how to make sure your leasing policy doesn’t discriminate against LEP applicants, see “How to Avoid Discriminating Against People with Limited English Proficiency,” available to subscribers here.