How to Avoid Religious Discrimination Claims During the Holidays

In this lesson, Fair Housing Coach focuses on avoiding discrimination claims based on religion during the holidays—and all throughout the year.

You don’t have to be a “Grinch” to comply with fair housing law. The key is to celebrate the general festivity of the season without promoting a particular religion or particular religious holiday. That way, you’ll satisfy fair housing concerns by showing that your community welcomes everyone—regardless of anyone’s religious practices or beliefs.

Don’t relax your focus once the holidays are over—religious discrimination claims could arise at any time of year. Fair housing law makes it unlawful to exclude or otherwise discriminate against applicants or residents because of their religion. If you explicitly or implicitly suggest that you have a preference for—or against—members of certain religious groups in the way you advertise, market, or operate your housing community, you could be accused of violating fair housing law.

This month, we’ll review the law and suggest eight rules to follow to help you avoid claims of religious discrimination during the holidays—and all year long. Then, 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 based on a number of characteristics, including religion. Among other things, it’s unlawful to:

• Deny housing to anyone because of his religion;
• Steer or discourage anyone from living in your community because of his religion;
• Impose different terms or conditions because of his religion;
• Harass or retaliate against anyone because of his religion; or
• Make statements—oral or written—that indicate a preference for or against anyone because of his religion.

Taken together, these provisions prohibit communities from treating people differently based on their religious beliefs or practices. For example, you can’t show favoritism toward people who share your religious beliefs—or bias against those of other religious faiths.

Furthermore, you could run afoul of fair housing law by treating people differently simply because they do—or do not—attend religious services or identify with a religious faith. The FHA doesn’t define “religion,” but fair housing experts believe it’s broad enough to prohibit discrimination against individuals who are not affiliated with a particular religion or do not ascribe to particular religious beliefs.

Coach’s Tip: The FHA includes a narrow exemption that allows religious organizations, which own or operate housing for noncommercial purposes, to limit occupancy or give preferential treatment to members of the same religion, as long as membership in the religion is not restricted on account of race, color, or national origin.

FOLLOW 8 RULES FOR AVOIDING

RELIGIOUS DISCRIMINATION CLAIMS

Rule #1: Make Everyone Feel Welcome at Your Community

At the holidays—and all throughout the year—it’s important to make all prospects, applicants, and residents feel welcome, regardless of their religious beliefs or practices.

As communities have become more religiously and culturally diverse, your residents may celebrate a variety of religious holidays. Many celebrate Christmas or Hanukkah, while others may observe religious holidays that may be unfamiliar to you. Some celebrate cultural or spiritual occasions, such as Kwanzaa or the winter solstice, while others don’t celebrate any holidays at all. Regardless of whether or how they celebrate the holidays, all are protected from discrimination under the FHA—and can’t be treated differently because of their beliefs or practices.

Rule #2: Leave Religion Out of the Leasing Process

Take a close look at your application policies and procedures to ensure that your community doesn’t exclude or otherwise discriminate against applicants based on their religious affiliation or beliefs.

Example: In July 2019, the Justice Department announced a settlement in a fair housing case alleging that a Michigan community discriminated on the basis of religion by prohibiting non-Christians from owning homes at the summer resort community.

In its complaint, the Justice Department alleged that a nonprofit municipal association owned the community’s land and leased lots to members who owned the cottages built on those lots. Specifically, the complaint alleged that from 1986 to 2018, the association’s bylaws required that in order to become a member of the association and thus eligible to own a cottage, an individual must, among other things, be “of Christian persuasion” and obtain a letter of recommendation from the pastor (or designated leader) of the church the individual attends.

Under the settlement, the association agreed to amend its bylaws, articles of association, and membership application materials to eliminate the religious restriction on membership [U.S. v. The Bay View Association of the United Methodist Church, Michigan, July 2019].

Rule #3: Make Sure Advertising and Marketing Practices Don’t Suggest Religious Preference

Check to ensure that your advertising and marketing practices and materials don’t suggest a preference for or against anyone based on her religion.

Under the FHA, it’s unlawful to make, print, or publish any notice, statement, or advertisement that indicates any preference, limitation, or discrimination based on race, color, religion, sex, disability, familial status, or national origin. According to federal regulations, you may not use “words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons because of…religion.” According to HUD, that means that advertisements may not include explicit preferences—such as “Christian community”—or limitations—such as “No Jews.” It’s also unlawful under the FHA to advertise that you prefer only those who are members of an organized religion.

Don’t forget: Fair housing law doesn’t require proof of discriminatory intent to establish liability for making discriminatory statements. Instead, the focus is on whether the statement would suggest an unlawful preference to an “ordinary reader or listener.” Even if you don’t intend to discriminate against applicants or residents based on their religion, you could unintentionally suggest you have such a preference for members of one religion over another. Though unlikely, by itself, to lead to a fair housing complaint, evidence of an implied preference could be used against you if there is other evidence of religious discrimination.

For example, HUD has said that advertisements of descriptions of the housing community, such as “apartment complex with chapel,” or services, such as “kosher meals available,” do not on their face state a preference for persons likely to make use of those facilities and are not violations of the FHA. But that doesn’t mean that you should emphasize religious amenities, such as your community’s proximity to a particular church or other house of worship, according to fair housing experts, who warn that they may suggest a preference for members of that faith. 

HUD observes that in some cases, the name of the housing community—such as the “Roselawn Catholic Home”—or use of a religious symbol—such as a cross—in an advertisement could indicate a religious preference. Nevertheless, HUD says that it won’t be considered a fair housing violation if the ad includes a disclaimer to indicate that the housing community doesn’t discriminate on the basis of race, religion, and other protected characteristics. In most cases, however, fair housing experts caution against use of religious symbols in your advertising or marketing materials unless there are special circumstances such as, for example, when it’s part of a registered trademark or logo.

Rule #4: Aim for Inclusiveness During the Holiday Season

This time of year, many communities put up decorations, send greetings, or host festivities to promote good cheer. There’s nothing wrong with decorations and festivities to mark the holiday season, as long as they don’t appear to be promoting a particular religion or religious holiday. It’s unlawful to express a preference for—or against—anyone based on religion, so celebrating only one religious holiday—to the exclusion of others—could lead to a fair housing problem.

You can’t go wrong with secular messages, such as “Seasons Greetings” or “Happy Holidays,” and seasonal displays featuring lights, evergreens, icicles, and snowflakes. You can even include pictures of Santa Claus and signs that say, “Merry Christmas,” which have been recognized by HUD as secularized terms and symbols that don’t violate fair housing law.

When it comes to decorating common areas, it’s sometimes hard to know where to draw the line between religious and secular and symbols. Our experts warn against putting up nativity scenes, but opinions were mixed with respect to menorahs and Christmas trees. Some experts say that communities should avoid using them and any other decorations with religious connotations when decorating common areas. Others suggest calling it a “Holiday tree” and decorating it with seasonal, nonreligious lights and ornaments. Still others say menorahs and Christmas trees have become secularized—like “Merry Christmas” and Santa Claus—so it’s fine for communities to include them among other holiday decorations with other nonreligious, seasonal themes.

Coach’s Tip: Many communities hold parties and other special events during the holidays. While such events are a great amenity for your residents, make sure that the events are not religious or used to promote a particular holiday. Fair housing experts warn against calling it a Christmas party or playing Christmas carols with religious themes. Instead, keep the celebration neutral by calling it a holiday party or winter celebration and playing music celebrating winter themes. Invite all residents, regardless of their religious affiliations. Make sure residents know all are welcome but avoid any impression that they must attend holiday events.

Rule #5: Allow Residents to Display Religious Decorations Inside Their Units

Most of our fair housing experts warn against allowing residents to decorate lobbies, hallways, and other common areas since it’s up to the community to maintain them in a religiously neutral manner. Inside their units, however, residents should be allowed to display holiday decorations, including personal religious items, as long as they are in keeping with community rules.

It can get more complicated when dealing with holiday decorations on the unit’s front door, and unit interiors that are visible from outside, such as windows, patios, and balconies. As a general rule, communities have the right to enforce rules related to the appearance of those areas, but the rules must apply consistently to religious and secular objects alike. Some communities allow residents to hang religious decorations on their front doors and windows, while others have rules banning decorations of any kind in outdoor areas.

But be careful: Taking a hard line against outside decorations whatsoever may be effective, but it could trigger a complaint that the community is interfering with a resident’s religious rights.

Example: Earlier this year, a court overturned a jury verdict in a dispute between an Idaho couple and a homeowners association involving their Christmas display. The dispute dates back to 2015, when the couple notified the HOA that they intended to buy a home in the subdivision and needed a quick answer about whether the board would oppose use of the property for their Christmas program. The homeowners’ stated reason for hosting the Christmas program was to support various charities and engage in ministry.

In response, the HOA indicated that the program would violate certain community rules and pointed out that some residents were non-Christians or of other faiths. The HOA said it didn’t intend to discourage the couple from becoming part of the community, but it didn’t want to become entwined in expensive litigation to enforce longstanding rules and fill the neighborhood with hundreds of people and possible “undesirables.”

The couple bought the home and in 2015, and in 2016 they hosted the Christmas program, which involved decorating the exterior of the home with 200,000 lights, a nativity scene with a live camel, and characters in costume. Commercial busses were used to transport people to and from the program; the busses were parked in front of their home and adjacent properties. Many other people drove to the event and parked throughout the neighborhood. Hundreds of people attended the program on a nightly basis; in total, thousands attended over each five-day period.

Facing opposition from neighbors, the homeowners sued the HOA, accusing the community of discrimination and harassment against them because they were Christian. After a series of proceedings, the case went to a jury, which sided with the homeowners and awarded them $75,000 in compensatory and punitive damages.

In the latest ruling, the court overturned the verdict, ruling that the jury was unfairly prejudiced by evidence of alleged threats made by neighbors because of the Christmas program. The ruling is pending an appeal [Morris v. W. Hayden Estates First Addition Homeowners Association, Inc., Idaho, April 2019].

Coach’s Tip: As an alternative to a blanket rule banning any outside decorations, some communities permit residents to put up decorations related to holidays and other occasions—both religious and secular—on the doors and windows of their units, or on outdoor patios and decks, subject to size and space limitations. If you go that route, it’s a good idea to impose time limits to require removal of the items within a certain period after the related event.

Rule #6: Treat Residents Consistently—Regardless of Religion

Adopt policies and practices to ensure that your community doesn’t treat residents differently based on their religious affiliation or beliefs. The FHA bars communities from discrimination in the terms, conditions, or privileges of rental of a dwelling—such as higher fees or more onerous lease terms—or the provision of services or facilities at the housing community—such as withholding or delaying maintenance services—on the basis of religion. The law also prohibits communities from steering applicants to certain areas within the community because of their religion. Make sure that your entire staff understands that they may not give preferential treatment to members of their religion or less favorable treatment to members of other faiths.

It’s also unlawful to hold residents to different standards of conduct just because they are members of a particular religion. In the aftermath of the 9/11 attacks, for example, HUD warned that a housing community could be accused of religious discrimination if it acts improperly in response to complaints from neighbors about Muslim residents. While communities must be responsive to complaints from residents, HUD says that you should take action against residents only when based on legitimate property management concerns. As an example, HUD cites a neighbor’s complaint about a Muslim resident’s weekly meeting of Muslim men, whom the neighbor says appear to be “unfriendly” and might be “up to something.” If the visitors don’t disturb other residents in their peaceful enjoyment of the premises, HUD says that the housing provider could face a discrimination complaint if it asks the resident to refrain from having Muslim guests without evidence of any violation of established community rules.

Rule #7: Allow Equal Access to Your Common Areas

Allow your residents equal access to the community’s common areas, including amenities, without regard to religion and other protected characteristics. HUD regulations state that it’s unlawful to limit use of the privileges, services, or facilities associated with a dwelling based on race, color, religion, sex, disability, familial status, or national origin.

For example, some communities allow residents to use the community’s common room for family parties and similar functions. If you allow residents to reserve the room for various types of activities, then you must make it available to residents regardless of whether they want to use it for secular or religious purposes. It’s unlawful for communities to allow residents to reserve the room for card games and other social events, but to deny it to a resident who wants to use the room for a prayer meeting, according to the Justice Department.

And all residents must have equal opportunity to use amenities, regardless of their religious or cultural background. If you permit a resident to hold a Christmas party in the room, then you must allow a Jewish resident to use the room for a Hanukkah party.

On the other hand, be careful that any religious accommodations don’t infringe on the rights of others to use and enjoy your common areas. You could face a discrimination claim if you restrict access to your amenities to accommodate religious practices of a majority of your residents in a way that denies equal access to other residents.

Example: In April 2019, an appeals court ruled that a New Jersey condo community’s pool schedule discriminated against women in violation of fair housing law. Roughly two-thirds of the residents of the 55-plus community were Orthodox Jews. To accommodate Orthodox principles regarding modesty, the community adopted rules for pool use designating certain hours when only members of a single sex were allowed to swim. Though the number of hours for each sex was roughly the same, the large majority of hours in the evening were reserved for men.

The court concluded that the pool schedule discriminated in its allotment of different times to mem and women in addition to using sex as its criterion. The schedule allowed women to swim less than four hours after 5 p.m. on weeknights, compared with more than 16 hours for men. Women with regular-hour jobs had little access to the pool during the work week, and the schedule appeared to reflect particular assumptions about the roles of men and women [Curto v. A Country Place Condo. Assoc., Inc., New Jersey, April 2019].

Rule #8: Enforce Rules to Prevent Harassment By or Against Residents

Take steps to enforce rules to prevent religious harassment or other misconduct by or against residents. You shouldn’t be expected to police the behavior of your residents, but you should make it clear that bullying or any other forms of harassment based on protected characteristics won’t be tolerated.

If you receive a complaint from a resident about religious harassment by a neighbor, then it’s important to investigate and act swiftly to resolve the problem. Unless you take such complaints seriously, you could be accused of tolerating religious discrimination at your community. That could lead to a fair housing complaint and, depending on the circumstances, potential liability if a court finds that you knew about the neighbor’s religious harassment but didn’t do enough to stop it.

Example: Earlier this year, the Supreme Court let stand a ruling reinstating fair housing claims against an Illinois retirement community for harassment and retaliation. In her complaint, the resident alleged that she endured months of physical and verbal abuse by other residents because of her sexual orientation, and that despite her complaints, the community did nothing to stop it and in fact, retaliated against her because of her complaints. Further proceedings were needed to determine whether management had actual knowledge of the alleged harassment and whether they were deliberately indifferent to it [Wetzel v. Glen St. Andrew Living Community, Illinois, August 2018].

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

Coach Source

Kathelene Williams, Esq.: Williams & Edelstein, P.C., Fair Housing Institute, Inc., (770) 840-8483; kathi@fairhouse.net.