How To Prevent Fair Housing Trouble Based On National Origin

This month, we are going to focus on preventing fair housing trouble based on national origin. According to the latest information available from HUD, national origin lags behind disability, race, and familial status as the basis for formal fair housing complaints. In fiscal year 2009, HUD reported that 13 percent of formal complaints were based on national origin—more than half of which (8 percent) involved Hispanic or Latino individuals.

Nevertheless, discrimination claims based on national status may soon rise as certain trends in the nation and abroad converge in the coming years. Country-wide, national origin claims could jump due to changing demographics. Minorities, now roughly one-third of the U.S. population, are expected to comprise a majority by mid-century, according to the U.S. Census Bureau. Other projected changes:

The Hispanic population is expected to nearly triple, from 46.7 million in 2008 to 132.8 million in 2050. Its share of the nation's total population is projected to double—from 15 percent to 30 percent—so nearly one in three U.S. residents would be Hispanic.

The Asian population is projected to climb from 15.5 million to 40.6 million. Its share of the nation's population is expected to rise from 5.1 percent to 9.2 percent.

Meanwhile, political and world events may play a factor. On the national scene, the stalled efforts to enact federal immigration reform—and state and local initiatives to do something about it—could lead to increased housing discrimination against Hispanic or Latino individuals. And in the wake of 9/11, federal officials noted increased incidents of discrimination against individuals who are, or appear to be, Muslim or of Middle Eastern or South Asian descent. These incidents seem to spike with each fresh report of threats and acts of terrorism here and abroad, according to fair housing experts.

As these events unfold, community owners and property managers are on the front lines—adjusting to the changing population, sorting out their role in addressing illegal immigration, and warding off discrimination claims from applicants or residents because of the country where they or their ancestors were born.

In this month's issue, we'll give you five rules on how to prevent fair housing trouble based on national origin. Then, you can take the Coach's Quiz to see how much you 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 U.S. Department of Justice explains that national origin refers to either the country where the individual was born or where his ancestors originated. But in practice, complaints based on national origin often include other protected characteristics—particularly race, color, or religion. For example, a discrimination complaint by an applicant from the Middle East may be based on color or religion in addition to national origin. Similarly, an applicant of Asian descent could add race, color, or religion to a national origin complaint.

National origin and color are often the basis for claims by Hispanic or Latino individuals, but the law is in flux over whether the claim may be based on race. In its latest fair housing report, HUD acknowledged that current government standards consider “Hispanic or Latino” as an ethnicity—not a separate race—but it observed that, “In the past, some government programs incorrectly classified Hispanic as a race instead of an ethnic category.”

For purposes of protecting your community from fair housing trouble, however, the overlap among the protected categories doesn't really matter because the FHA bans discrimination based on all these characteristics.

HUD enforcement. Federal officials in the Justice Department and HUD recently stepped up efforts to enforce the FHA's national origin protections. Noting census data showing the Hispanic population is the fastest growing segment of the population, the Justice Department has pursued enforcement actions against private landlords and taken an active role to oppose local ordinances aimed at reducing or limiting the number of Hispanic families living within their jurisdiction.

The Justice Department also has taken action against private communities in areas of the country that have experienced an increasing diversity of national origin groups within their populations—including new immigrants from Southeastern Asia, the former Soviet Union, and other portions of Eastern Europe.

Example: In July 2010, the Justice Department filed a lawsuit against the owner, management company, and on-site manager of a 268-unit apartment complex near Seattle for violating the FHA by discriminating on the basis of race, color, national origin, and familial status. Among other things, the complaint alleged that the defendants steered Indian residents away from one of the five buildings at the community, treated residents from India less favorably than other residents, and discouraged African Americans, Hispanics, and families with children from living there.

The case was filed after a HUD investigation allegedly revealed numerous instances of discriminatory conduct. According to HUD, the property manager allegedly prohibited an employee from speaking Spanish to Hispanic applicants, saying, “We speak English here,” and allegedly told an Asian-American resident to “go back to India if you can't use the appliances properly.”

“The discriminatory treatment of Hispanics and Asian Americans we found was both rampant and deplorable,” Assistant Secretary for Fair Housing and Equal Opportunity John Trasviña said in a statement. “Housing discrimination is illegal and unacceptable and HUD works to eliminate it” [United States v. Summerhill Place, LLC, July 2010].

Citing that case, HUD recently issued a warning against discrimination based on national origin. In an April blog posting, HUD officials stated that the FHA makes it illegal to discriminate in housing against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.

On the flip side, fair housing law also prohibits communities from favoring one ethnic group over another based on national origin or other protected characteristic. That means that you can't go out of your way to attract members of some groups—while discouraging others—based on their national origin.

Example: In November 2009, a California community agreed to pay a record $2.725 million to settle allegations of discrimination against non-Korean residents and prospects in the Koreatown area of Los Angeles. Among other things, the complaint alleged that the defendants refused to rent to non-Korean prospects, misrepresented the availability of units to non-Korean prospects, and provided inferior treatment to non-Korean residents in those buildings [United States v. Sterling, November 2009].

COACH'S TIP: Federal officials have also increased outreach efforts to national origin groups. In May 2010, HUD partnered with the Asian Real Estate Association of America to combat housing and lending discrimination facing Asian and Pacific Islanders. Although only 1 percent of HUD's fair housing complaints involve Asian and Pacific-American complainants, HUD cited a 2000 study showing that the rate of housing discrimination against Asian Americans and Pacific Islanders is comparable to that experienced by African-American and Hispanic home seekers.

5 RULES FOR PREVENTING FAIR HOUSING CLAIMS BASED ON NATIONAL ORIGIN

Rule #1: Promote Policies to Treat Everyone Equally—Regardless of National Origin

Demonstrate that your community has a zero-tolerance policy against discrimination based on national origin—and all the other characteristics protected under federal, state, and local laws. Put it in writing—and make sure that everyone knows about it by posting it in your office, promoting it in your marketing materials, and inserting it into your application package.

Put the policies into practice by conducting periodic training sessions with your leasing staff, maintenance workers, and other employees—particularly new hires. Emphasize that staff members are expected to maintain professionalism and respect the diverse ethnic and cultural differences among prospects, applicants, and residents. Some of the basics include:

Beware of linguistic profiling. Warn staff against treating prospects differently because of how they sound—for example, if they have an accent or difficulty speaking English—particularly when answering the phone. Treating someone differently because of the way he speaks is called “linguistic profiling,” a practice that could lead to fair housing trouble. For example, The Napa Valley Register recently reported that prospects with Spanish accents received discriminatory treatment while seeking housing in Napa Valley, Calif. Based on telephone tests conducted by Fair Housing Napa Valley last summer, its executive director, Kathryn Winter, told the newspaper that callers with identifiable accents were discriminated against half the time—about the same as in 2005, when a similar phone audit was conducted in Napa County.

Avoid stereotypes. Instruct staff members to avoid prejudging prospects or applicants based on their names, appearance, clothing, and other characteristics related to their national origin. Despite concerns about security in the wake of the 9/11 attacks, it's your responsibility to ensure that such concern doesn't lead to discrimination against prospects or applicants who appear to be Muslim or of Middle Eastern descent.

Encourage cultural sensitivity. Tutor staff members so that they don't inadvertently offend prospects, applicants, or residents because of unfamiliarity with religious or cultural practices. For example, just as your staff shouldn't ask an applicant why he needs a wheelchair, they should know that they can't ask applicants about why they wear headcoverings or garb related to their cultural or religious customs. And forewarn maintenance workers and any other staff members who may visit residents' units that in many cultures, it's necessary to remove one's shoes when entering a home.

Rule #2: Consistently Apply Screening Standards for Legal Residency Status

Federal fair housing law does not regulate whether—and to what extent—communities may consider an applicant's citizenship or immigration status during the screening process. The FHA does not include citizenship or immigration status in the list of protected characteristics—and courts have ruled that the FHA's national origin provisions do not ban discrimination based on citizenship.

In a 2003 memo, HUD acknowledged that the FHA does not prohibit discrimination based solely on a person's immigration status. According to the memo, asking housing applicants for documentation of their citizenship or immigration status during the screening process would not violate the FHA, and, in fact, such measures have been in place for a number of years in federally assisted housing.

On the other hand, federal law does not require market-rate communities to inquire into a prospective resident's citizenship or immigration status. According to a recent court ruling, federal law simply does not prohibit landlords from renting (in the normal course of business) to persons who lack lawful immigration status.

The key to avoiding a fair housing complaint is to apply your screening policies uniformly, regardless of applicants' country of origin, accent, appearance, or other characteristic related to their national origin. That is, you can't single out those who are—or appear to be—immigrants for questions or documentation about their citizenship or legal residency status, but disregard the requirement for applicants whom you believe to be U.S. citizens. Nor can you look more closely at whatever documentation you may require simply because of the applicant's country of origin. According to HUD, asking Hispanic prospects if they illegally purchased Social Security cards is an example of national origin discrimination.

COACH'S TIP: Although the FHA doesn't prohibit discrimination based on citizenship, other federal civil rights laws may ban discrimination based on citizenship, according to fair housing attorney Robin Hein, author of the 2009 Georgia Apartment Law Book, published by the Atlanta Apartment Association. And it's important to check state and local laws. For example, California law explicitly prohibits owners from inquiring about an applicant's citizenship or immigration status, and some state and local laws ban discrimination based on immigration status or “alienage.”

Rule #3: Don't Steer Based on National Origin

Take precautions to avoid accusations of unlawful steering based on a prospect or applicant's national origin. Steering is the practice of encouraging or discouraging someone from living in your community—or parts of your community—based on a protected characteristic. Attempting to limit the housing choices of applicants or residents based on national origin, such as showing members of some ethnic groups only units in certain parts of your community, instead of any unit that meets their criteria, is a violation of fair housing law.

Example: Last year, the Justice Department announced that a New Jersey community agreed to pay $200,000 to settle allegations of discrimination on the basis of national origin, race, and religion. The complaint alleged that the community transferred or attempted to transfer Hispanic and African-American residents from their units located in its most desirable building to make room for Orthodox Jews whom they courted as new residents from 2002 to 2004. Allegedly, the non-Jewish residents were then assigned to less desirable units in the rear of the property, which had fewer amenities and were less well maintained than the most desirable building at the front of the property. The complaint also alleged that the incoming Jewish residents were charged less rent than were non-Jewish residents for units of similar size [United States v. Triple H. Realty, LLC, April 2009].

On the other hand, communities need not fear if they have a disproportionately high number of residents of certain ethnic groups—as long as they have not done anything to encourage or discourage the situation. Fair housing experts note that these circumstances often evolve organically: A few people from a particular ethnic or religious background move in; they enjoy living there and tell their friends and family about it; and soon the population expands on its own.

It's not a problem, say fair housing experts, unless you've done something to encourage the situation—for example, by advertising in only foreign-language newspapers to attract more prospects of the same ethnic group. By the same token, it would also be unlawful to try to stem the tide by discouraging others of the same ethnic background from living in your community. Such conduct not only amounts to unlawful steering, but also violates provisions barring statements that show a preference for or against prospects or applicants based on a protected characteristic.

Rule #4: Enforce Reasonable Occupancy Standards Regardless of National Origin

In most cases, discrimination complaints about occupancy standards are related to familial status—that is, the presence of one or more children under 18 in the household. That's because some communities have enforced overly restrictive occupancy standards that effectively exclude families with children from living there.

But overly restrictive occupancy standards could also trigger a fair housing complaint based on national origin. Applying and enforcing reasonable occupancy standards can be a problem in the context of national origin because of what social scientists note as a growing trend: the return of the multigenerational family. This trend is driven in large measure by demographic changes over the past few decades.

According to a Pew Research Center report released earlier this year, a record 49 million Americans, or 16 percent of the total population, lived in multigenerational families—those with at least two adult generations or a grandparent and one other generation—a significant trend reversal from previous years. The downturn in the economy played a role, but researchers reported that the trend has been fueled by “the big wave of immigration, dominated by Latin Americans and Asians,” since the 1970s. “Like their European counterparts from earlier centuries, these modern immigrants are far more inclined than native-born Americans to live in multigenerational family households,” the report noted.

To avoid fair housing problems, adopt reasonable occupancy standards—and apply them consistently to all residents—regardless of their national origin or other characteristic protected under federal, state, or local law. Under HUD's general rule of thumb, two people per bedroom—without distinction to age or gender—is a reasonable occupancy standard, but there are exceptions based on the size of the unit and other factors, including state and local requirements.

Put your policy in writing, and adopt standard procedures to enforce the policy equally and consistently for all residents. If you determine that a resident is violating the policy by allowing unauthorized guests to live in the unit, take the appropriate action to address the violation as soon as possible. Proof that you followed your standard procedures will help defend you against accusations that you singled out members of certain ethnic or minority groups for unfair treatment.

Rule #5: Keep an Eye on Resident Relations

Take quick action to address any reported disputes among residents, particularly if there appear to be undertones of discriminatory motives based on national origin.

In its 2003 guidance on post-9/11 security concerns, HUD acknowledged that communities must be responsive to complaints from residents, but they must evaluate whether those complaints may be actually motivated by race, religion, or national origin—and take action against residents only on the basis of legitimate property management concerns. To explain the point, HUD cites an example of a resident's complaint about a Muslim neighbor who hosts a weekly meeting of five or six other Muslim men, who “appear unfriendly” and may be “up to something.” Since the visitors do not disturb other residents in their peaceful enjoyment of the premises, HUD warns that the community could be accused of religious discrimination if it asks the residents to stop the meetings when there is no evidence of any violation of established property management rules.

In some cases, disputes among neighbors could escalate into threats, harassment, and even violence. Depending on the circumstances, your community could face liability if you knew that a resident was harassing or threatening a neighbor because of his national origin, but failed to do anything to stop it. If you receive a complaint about alleged harassment based on national origin or other protected characteristic, investigate the complaint, thoroughly document your findings, and take the appropriate steps to remedy the situation in accordance with your community's standard rules governing resident conduct.

Fair Housing Act: 42 USC §3601 et seq.

COACH Source

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood and Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.

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