How To Prevent Housing Discrimination Based On Sexual Orientation

This month's issue of Fair Housing Coach focuses on avoiding discrimination claims based on sexual orientation. Federal fair housing law does not ban discrimination based on sexual orientation, but many fair housing experts believe that the federal law may be amended to include sexual orientation in coming years.

Meanwhile, many communities are subject to state, county, and municipal laws protecting sexual orientation. And many more may be covered this year as state and local lawmakers around the country weigh measures to ban discrimination based on sexual orientation.

Because of rapidly changing laws, it's difficult for communities to keep track of federal, state, and local requirements related to sexual orientation. In addition, many communities also are subject to laws banning discrimination based on marital status, which may affect how communities treat couples—whether of the same sex or opposite sex. And it may get even more complicated in light of the national debate on same-sex marriage. Because it may be challenging for communities to determine just what is required by law, some fair housing experts recommend that communities adopt policies against discrimination based on sexual orientation and marital status—whether legally required to do so or not.

In this issue, we'll provide an overview of fair housing laws banning discrimination based on sexual orientation, particularly as they intersect with laws protecting marital status. Then, we'll give you seven rules to help avoid discrimination claims based on sexual orientation. Finally, you can take the COACH's Quiz to see how much you have learned.

EDITOR'S NOTE: Many state and local laws banning discrimination based on sexual orientation also cover gender identity, gender expression, or transgender status. For editorial purposes, we've used the term “sexual orientation” to discuss the general rules applicable to any or all these characteristics, and use the term “gender identity/expression” to discuss particular rules related to gender identity, gender expression, or transgender status.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits housing discrimination based upon race, color, national origin, sex, familial status, disability, or religion, but federal law does not protect sexual orientation or marital status.

However, that doesn't mean that federal enforcement officials ignore discrimination complaints based on sexual orientation. The Justice Department says that it evaluates discrimination complaints involving sexual orientation on a case-by-case basis to determine whether any other form of discrimination is present. For example, a gay couple who believes that they were denied housing because one partner was Hispanic would have a claim under the FHA because national origin is protected under federal law, according to HUD.

Federal law also comes into play if sexual harassment is alleged. According to HUD, a complaint alleging sexual harassment is actionable under the FHA, even if the harasser is the same sex. In its recent release on sexual harassment, HUD states that the FHA protects both men and women from sex discrimination, including same-sex sexual harassment. The agency says that it is a violation of the FHA for a property manager, agent, employee, or contractor to sexually harass an applicant or resident, even if the harasser and the victim are the same sex.

To date, federal legislation to ban housing discrimination based on sexual orientation has been unsuccessful, but fair housing attorney Avery Friedman predicts that sexual orientation and veteran status may be among the next federally protected characteristics added to the FHA. However, with so much attention in Washington and across the nation on the current economic downturn and the foreclosure crisis, it is difficult to say just when—or if—federal lawmakers will take up the matter.

In the meantime, Friedman observes that a ban against discrimination based on sexual orientation is on the front burner for many state and local government bodies. Currently, 20 states ban housing discrimination based on sexual orientation, and the topic is being debated in state legislatures across the country. As this issue went to print, lawmakers in Delaware, Florida, North Dakota, Pennsylvania, South Carolina, and West Virginia were mulling bills to ban discrimination in employment, housing, and public accommodations based on sexual orientation. Similar measures were defeated in Idaho and Utah earlier this year.

Even when there is no state-wide ban, many communities must comply with local laws prohibiting housing discrimination based on sexual orientation. For example, the state of Texas does not protect sexual orientation, but fair housing expert Anne Sadovsky points out that large cities such as Austin and Dallas have enacted such laws. The same is true in states across the country, including Arizona, Missouri, and Florida.

If your community is subject to state or local laws banning discrimination based on sexual orientation, it's important to get legal advice about the details to determine what they cover. The laws vary in the language used, but most define “sexual orientation” as heterosexuality, homosexuality, or bisexuality. Many cover both actual and “perceived” sexual orientation to extend protection to individuals who are subjected to discrimination based a mistaken belief about their sexual orientation.

The laws also vary in scope—some cover only sexual orientation, while others also cover gender identity, gender expression, or transgender status. Generally, “gender identity” refers to a person's innate sense of one's own gender—regardless of the person's assigned sex at birth. “Gender expression” generally refers to external appearance, characteristics, or behaviors typically associated with a specific gender. The term “transgender” may be used to encompass both gender identity and gender expression.

Meanwhile, about half the states and many municipalities have adopted laws to protect marital status. Those laws generally ban discrimination based on whether an applicant or resident is single, married, divorced, or separated. The few court rulings on discrimination based on marital status have involved unmarried heterosexual couples, but some fair housing advocates argue that the laws may be used in discrimination claims by same-sex couples.

Communities may be faced with even more challenging problems based on sexual orientation or marital status in conjunction with state laws recognizing civil unions or same-sex marriage. Although many states have adopted provisions defining marriage as between only one man and one woman, two states—Massachusetts and Connecticut—currently recognize same-sex marriage. A 2008 court decision recognizing same-sex marriage in California was repealed by voters last fall, but the issue is currently in the hands of that state's highest court. Meanwhile, in Vermont, which recognizes civil union, legislators favored legislation to recognize same-sex marriage, but the governor has promised to veto the measure. At the time this issue went to print, bills to recognize same-sex marriage also were pending in several other states, including New Hampshire and Maine.

7 RULES TO PREVENT DISCRIMINATION CLAIMS BASED ON SEXUAL ORIENTATION

Rule #1: Get to Know Your State and Local Laws

To protect your community from discrimination claims, you must comply with any applicable state and local laws that extend protection beyond the seven federally protected classes. If the laws in your state or local area protect sexual orientation, then you must take steps to avoid discrimination based on sexual orientation or risk a fair housing complaint.

Find out whether your state bans housing discrimination based on sexual orientation. If it does, find out whether it also covers gender identity/expression. But be careful: Even if the law itself mentions only sexual orientation, it still may cover gender identity/expression. That's because laws sometimes define “sexual orientation” to include gender identity/expression, or the laws have been interpreted that way by the courts or state civil rights agencies.

The next step is to determine whether your community is subject to county, parish, city, or town laws that ban discrimination based on sexual orientation. Just as with state laws, the details of local laws protecting sexual orientation vary widely. You'll have to get the specifics to determine whether local laws also cover gender identity/expression. And if your company owns communities in more than one municipality within a state—or in more than one state—then you'll have to check all applicable state and local requirements.

Finally, take steps to monitor changes in any applicable state and local laws to ban discrimination based on sexual orientation—or to add gender identity/expression to existing laws protecting sexual orientation.

COACH'S TIP: Even if the laws in your state or local area do not require it, consider voluntarily adopting policies and procedures against discrimination based on sexual orientation, advises Sadovsky. Why? For one thing, it's difficult to keep track of rapidly changing laws, particularly on the local level. For another, she says, sexual orientation is not relevant to your community's primary concerns. Particularly in today's economy, Sadovsky says, the most important criteria are whether applicants can pay the rent, are likely to continue to pay the rent, and will follow community rules. Sadovsky says the best practice is to adopt policies and procedures to foster those concerns—such as focusing on credit and rental history—rather than being concerned with an applicant's sexuality.

Rule #2: Review Policies and Procedures

If your community either must or wishes to add protection based on sexual orientation, then the first step is to review your nondiscrimination policy. Make sure it includes the federally protected characteristics—disability, race, color, religion, national origin, sex, and familial status—and any characteristics protected by state or local laws, including sexual orientation or marital status.

Develop clear policies and procedures for preventing discrimination based on sexual orientation against applicants, residents, and employees. In addition, the policies should address your procedures for the investigation and equitable resolution of complaints alleging discrimination based on sexual orientation. The policy also should prohibit retaliation against a person who complains about discrimination based on sexual orientation.

Check your harassment policy to ensure that it bans harassment by employees or contractors against applicants and residents, regardless of their gender. And make sure it addresses harassment of one resident by another resident. When the harasser is another resident, the general rule is that the community may be liable if it knew or should have known of the harassment and failed to take immediate and appropriate action to stop it.

When you review your harassment policy, check applicable state and local laws for guidance. In Washington, for example, a non-harassment policy should prohibit harassment, intimidation, and abusive, foul, or threatening language or behavior directed at people because of their sexual orientation or gender identity/expression, according to the Washington State Human Rights Commission.

Similarly, Colorado law bans discriminatory harassment—including severe or pervasive threats or other abusive and offensive conduct—against a person because of sexual orientation or transgender status. Harassment may include, but is not limited to, malicious behavior, sexual advances, use of derogatory names or terms, or intentional misuse of gender pronouns and names, according to the Colorado Department of Regulatory Agencies, Civil Rights Division.

Maine law also prohibits harassment in housing based on an individual's sexual orientation (which also includes gender identity/expression). According to the Maine Human Rights Commission, examples of sexual orientation harassment include:

• Using slurs like “faggot” or “dyke”;

• Leaving harassing messages on the door or phone; or

• Throwing objects at or physically attacking someone due to their sexual orientation.

Under Maine law, harassment is judged by how the conduct feels to the target and what is offensive to the ordinary person. Even though many harassers believe their behavior is funny, flattering, or harmless, the commission warns that their conduct is illegal if it unreasonably interferes with the resident's use and enjoyment of his or her home.

Rule #3: Train Staff on Your Fair Housing Policies

Employee training is essential to ensure compliance with fair housing laws, including those protecting sexual orientation. The training should be required for your entire staff—including leasing agents, maintenance workers, housekeepers, and landscaping crews. To prevent fair housing trouble, all your employees must understand—and consistently apply—your community's policies and procedures without regard to the sexual orientation of applicants and residents.

Make sure your employee education program includes an explanation of your community's fair housing policy, including any provisions banning discrimination based on sexual orientation—and, if applicable, gender identity/expression. The training should emphasize that employees may not exclude or otherwise discriminate against an applicant or resident based on his or her real or perceived sexual orientation. In addition, employees should understand that your community's policy banning harassment includes sexual orientation.

Fair housing training is a must for new employees, warns Sadovsky, who notes that discrimination cases have been filed based on stray comments by new employees in their first days of work. Before you allow them to answer the phones or interact with the public, you must ensure that new employees have at least a basic understanding of federal, state, and local fair housing requirements. She suggests that you require new employees to watch a video or go online to receive training on fair housing basics, including any applicable state or local laws.

In addition, you should review your community's fair housing policies with your entire staff on a regular basis. Many companies require staff members to attend fair housing training or use online training resources at periodic intervals.

Finally, it's important to document employee fair housing training efforts. For example, you should require new employees to sign an acknowledgment that they received a copy of your community's fair housing policy and agree to abide by the policy. In addition, you may require employees to sign attendance sheets for fair housing training sessions. Keep the documentation in your files—you will need them if an employee is ever accused of housing discrimination.

COACH'S TIP: If your community is subject to laws protecting gender identity/expression, you should make sure your staff is aware that some people may have a legal name or gender inconsistent with their known name or gender, according to the Washington State Human Rights Commission.

Rule #4: Don't Discriminate in Advertising and Marketing Materials

Review your advertising and marketing materials to ensure that they don't contain any discriminatory phrases or images based on sexual orientation. Laws protecting sexual orientation generally prohibit statements that express a preference for or against people with a certain sexual orientation. For example, the Iowa Civil Rights Commission warns that it would be a violation of Iowa law if your community attempted to discourage applicants based on their sexual orientation by advertising, “No Gays” or “Prefer Married Couples.”

Similarly, avoid subtle messages from the images used in your brochures and other marketing materials that people of a particular sexual orientation or gender identity are unwelcome at your community. For example, a company advertising with images of couples should not use images of only opposite-sex couples or same-sex couples, according to the Washington State Human Rights Commission.

Rule #5: Refrain from Unlawful Steering

To avoid discrimination claims based on sexual orientation, you may not discourage prospects from living in your community because of their sexual orientation. Since many laws protect both actual and “perceived” sexual orientation, you could be liable if you discourage a prospect from living in your community based on an assumption that he is gay, even if he's really straight.

To avoid fair housing trouble, you must show prospects all available units within your community that meet their needs, regardless of their sexual orientation. You may not limit an applicant's choice of units by engaging in unlawful steering—that is, directing, encouraging, or discouraging applicants from living in certain areas or buildings within your community—because of the prospect's sexual orientation.

It also is unlawful to provide inaccurate or untrue information about the availability of units for discriminatory reasons. For example, you may not tell a prospect that an available unit has been rented, or limit information about suitably priced available units, because of his sexual orientation.

Rule #6: Prevent Discrimination During Application Process

Depending on the state and local law where your community is located, your community may be subject to laws protecting sexual orientation, gender identity/expression, or marital status—or all three. That means you should pay particular attention to your screening criteria to ensure that they don't rely on any of the characteristics protected in your state and local area.

In Washington, for example, where the law protects both marital status and sexual orientation (including gender identity/expression), communities may not discriminate against applicants based on their marital status, regardless of whether they have same-sex or opposite-sex partners, according to the Washington State Human Rights Commission. Furthermore, the commission warns that communities may not discriminate against families with children—regardless of whether parents are of the same or opposite sex.

Review your standard interview questions and application forms to ensure that they do not contain any biased questions—or questions that might be used in a discriminatory manner. For example, in Maine, where the law bans housing discrimination based on sexual orientation, the Maine Human Rights Commission says that it is unlawful to ask questions concerning:

• The sexual orientation, gender identity, or gender expression of the applicant;

• The relationship between household members;

• Their marital status; and

• The name of an applicant's spouse or significant other.

The Iowa Civil Rights Commission says that questions relating to a person's sexual orientation or gender identity—or questions intended to ascertain a person's sexual orientation or gender identity—are irrelevant and should be avoided. The commission says that housing providers should ask only questions that are relevant to the transaction, such as credit history and references.

One major issue involving the application process concerns the number of applications or fees required when renting to couples. Sadovsky explains that communities traditionally required only one application and one application fee for married couples, but separate applications and separate fees if there were two unmarried applicants, regardless of their gender. The practice was based on the assumption that married couples usually have joint credit, so only one credit check—and therefore, one application fee—was necessary, she says. In many areas of the country, where fair housing law does not cover marital status or sexual orientation, this continues to be a standard practice.

However, the practice could be a problem if your community is subject to laws protecting marital status or sexual orientation. Your community could be accused of discrimination based on marital status if you allow married couples to pay only one fee, but require unmarried couples to pay two fees. If the law bans discrimination based on sexual orientation, you could face a challenge by a same-sex couple, particularly if they produce a wedding license from a state that recognizes same-sex marriage.

To sort it out, it's important to get detailed information about the law in your state and local area. In Washington, for example, the law explicitly allows housing providers to charge one application fee for married couples and two application fees for unmarried couples, according to the state human rights commission. However, the commission warns that they must charge unmarried same- and opposite-sex applicants the same screening fee: It would be considered discrimination to charge all heterosexual couples (whether married or unmarried) one application fee and charge same-sex couples a higher application fee.

Sadovsky says that communities could avoid potential problems based on marital status or sexual orientation by adopting a policy to impose the same requirements on all applicants—regardless of marital status or sexual orientation. For example, Sadovsky says, a community could require each occupant 18 and older to fill out an application and pay an application fee.

Rule #7: Treat Residents Equally Regardless of Sexual Orientation

Communities may not discriminate against residents based on their sexual orientation. For example, communities may not charge a different price or deposit price, refuse to make repairs or delay repairs, or evict a resident because of his or her sexual orientation or gender identity, according to the Iowa Civil Rights Commission. In addition, the Washington State Human Rights Commission says that communities should permit residents, regardless of whether a same- or opposite-sex couple, the same right to public displays of affection.

The commission also warns against limiting use of community facilities based on a resident's sexual orientation. If your community offers use of a guest hall, common area, or other amenities, then you must allow access to all residents, regardless of their sexual orientation.

Furthermore, because Washington law prohibits discrimination based on gender identity, gender expression, and transgender status, the commission says that communities must allow residents using those facilities access to the appropriate restroom within the building. That means allowing a transgendered resident to use the restroom or locker room matching the gender he or she publicly asserts, according to the commission.

COACH'S TIP: To comply with laws protecting transgendered status, the Washington State Human Rights Commission says that communities need a policy to protect confidential information about residents who are transitioning or who have transitioned. Transitioning refers to the social or physical process a transgendered person undergoes to assert his or her gender identity, such as changing one's name, changing one's preferred pronoun, taking hormones, or having gender reassignment surgery. The commission says the purpose of the policies is to prevent disclosure of confidential information about an individual's transgendered status, including former name, legal gender, or medical status.

Fair Housing Act: 42 USC §3601 et seq.

COACH Sources

Avery Friedman, Esq.: Chief Counsel, Fair Housing Council, 705 The City Club Building, 850 Euclid Ave., Cleveland, OH 44114-3358; (216) 621-9282; averyfriedman@fairhousingtraining.com.

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

Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.

Sidebar

States that Ban Sexual Orientation-Based Discrimination

• Currently, seven states ban discrimination based on sexual orientation: Wisconsin, Massachusetts, Connecticut, New Hampshire, Nevada, Maryland, and New York.

• Thirteen states and the District of Columbia ban discrimination based on sexual orientation and gender identity/expression: Minnesota, Rhode Island, New Mexico, California, Illinois, Maine, Hawaii, New Jersey, Washington, Iowa, Oregon, Vermont, and Colorado.

Source: National Gay and Lesbian Task Force, www.theTaskForce.org