Maintaining Your Community Without Violating Fair Housing Law

In this month’s lesson, we’re going to look at how to provide maintenance services to residents at your community without violating fair housing law.

It’s important to maintain the property and respond to residents’ requests for maintenance or repairs, but you could get into fair housing trouble if you’re not careful. For instance, when you schedule repair work, you must treat residents fairly, based on objective reasons, such as the urgency of the repair, and not on discriminatory reasons, such as the resident’s race or religion.

And you must abide by the disability rules, which are both complicated and the most common reason that people file fair housing complaints. Among other things, the rules require reasonable accommodations to rules, policies, procedures, or services when necessary for individuals with disabilities to use and enjoy their homes. These rules can affect how you do your job—for example, you may get a request to use a certain kind of paint or refrain from using certain pest control products because a resident must avoid exposure to certain chemicals due to a disability.

In this lesson, we’re going to review fair housing law and give you six rules on how to avoid discrimination complaints when providing residents with maintenance and repair services. Then, you can take the COACH’s Quiz to see how much you’ve learned.

Time Out!

In this lesson, we’ve highlighted the general fair housing rules for maintenance professionals, but it’s not intended as a substitute for formal fair housing training. Fair housing experts recommend that all employees, including maintenance staff, receive fair housing training since discrimination claims can arise whenever any employee interacts with the public. Starting on day one, the experts say, all employees need a basic understanding of who’s covered and what’s required under federal, state, and local fair housing laws.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits housing discrimination based on race, color, religion, national origin, sex, familial status, or disability—which lawyers often refer to as “protected classes.” In addition, some state and local laws have expanded the list of protected classes to sexual orientation, marital status, and age—to name a few.

Under the FHA, it’s against the law to deny housing to anyone based on race or other protected class, but there’s more to it than that. The law bans discrimination in the terms, conditions, or privileges of the rental—or the provision of services or facilities—because the resident is a member of a protected class.

HUD regulations state that it’s unlawful to fail or delay maintenance or repair of rental dwellings based on race, color, religion, sex, familial status, national origin, or disability. That means you can’t deny residents the same level of service because of their race, ethnicity, or any other protected characteristic.

Example: In August 2014, the court refused to dismiss a lawsuit alleging a pattern or practice of race discrimination in the provision of repairs and maintenance to black tenants at rental properties in North Carolina.

The complaint, filed by the Justice Department, claimed that several current and former residents experienced problems with appliances, utilities, and structures in their units. At various times, the residents said they asked for repairs or replacements, but the manager allegedly delayed or failed to provide the necessary repairs or replacements. When some residents withheld rent in connection with the repairs, the manager allegedly initiated eviction proceedings against them. With respect to several residents, the manager allegedly made racial slurs and other racial statements in connection with the provision of repairs or eviction proceedings.

The owners asked the court for judgment without a trial, insisting that the manager never made discriminatory statements and in fact treated all residents fairly and with respect.

The court denied the request, ruling that the case should proceed to trial. Although there was no statistical evidence of race discrimination, there was evidence of discrimination or other statements revealing a motivation to make housing decisions based on race. For example, one resident recounted that the manager said that “he wasn’t getting a n*** a refrigerator,” while another said that after she demanded repairs, the manager placed a ghost on her front door and said that “You’re black, I’m white, you’re in the South now, you’ll never win against me.” The owners argued that the residents were lying, but the court said that questions about the tenants’ credibility would have to wait for the trial [U.S. v. Cochran, August 2014].

6 RULES FOR PROVIDING MAINTENANCE SERVICES

WITHOUT VIOLATING FAIR HOUSING LAW

Rule #1: Follow Standard Procedures for Handling Maintenance Requests

Many communities have a policy to schedule maintenance requests on a first-come, first-served basis, except in case of emergency. The policy should explain what’s considered an emergency and offer examples of the types of problems that would—and would not—be considered an emergency. In general, emergencies include problems that require an immediate response—“fire, flood, or blood,” as they say. In contrast, problems like a broken dishwasher or jammed garbage disposal—though inconvenient or unpleasant—would not be considered an emergency.

The purpose of the first-come, first-served policy is to ensure equal access to maintenance services to all residents, regardless of race, color, religion, national origin, sex, familial status, or disability, and any other protected classes under state and local law. But the policy won’t work unless you follow it consistently. Otherwise, residents may get the impression that you’re treating other residents better—or treating them worse—because they are members of a protected class.

Don’t do special favors for friends—or give priority service for residents you feel need special treatment, warns fair housing expert Doug Chasick. Ignoring the rules to help people you know or like means that some residents are getting preferential treatment—at the expense of the others waiting for service. For the same reason, you shouldn’t put off maintenance requests from residents you don’t like. Either way, it may give the impression that you’re favoring some residents over others for discriminatory reasons.

Be sure to follow the community’s procedures for keeping track of maintenance requests. The system should also track of the date and time of the request; the name and contact information of the resident making the request; details about the problem; when and who is assigned to do the work; when and how it was completed; the reasons for any delays, such as the need to order a replacement part; and any other relevant information. And it should also allow you to note anything unusual that you saw or experienced during the visit.

COACH’s Tip: Keep track of any complaints about maintenance services and what was done to resolve them. It’s particularly important to have documentation if there’s any suggestion that it’s related to a fair housing matter, such as a resident’s complaint that his maintenance requests were ignored because of his race or other protected characteristic.

Rule #2: Respond to Disability-Related Requests for Priority Service

When scheduling maintenance services, there’s one major exception when treating residents the same could cause fair housing problems: when a resident needs immediate assistance with a maintenance problem as a reasonable accommodation because of a disability.

The FHA’s disability rules prohibit discrimination against residents because they—or someone associated with them—has a disability. The law defines “disability” as a physical or mental impairment that substantially limits one or more major life activities. Generally speaking, that applies to a broad array of physical or mental impairments when they’re serious enough to substantially affect activities that are of central importance to daily life.

Under the FHA, it’s unlawful to refuse requests for reasonable accommodations to rules, policies, practices, or services that may be necessary for an individual with a disability to have equal opportunity to use and enjoy a dwelling. In essence, the reasonable accommodation provisions require communities to make exceptions to their general rules for individuals with disabilities under certain circumstances.

That may include an exception to your first-come, first-served maintenance policy as a reasonable accommodation for a resident with a disability. Even though there are other residents waiting ahead of him, it may be necessary to respond to a maintenance problem, which wouldn’t be an emergency for most people, but is for the resident because of a disability.

Fair housing expert Nadeen Green offers an example: During a heat wave, you have five work orders to repair air conditioning. You’d ordinarily handle each one in the order received, but the fifth request is from a resident who says she needs hers done first. She explains that her son has cystic fibrosis, which affects his ability to breathe, and that the oppressive heat causes even more difficulty breathing. In essence, the resident is asking for an exception to your first-come, first-served policy to bump her ahead of other residents because she needs immediate assistance as a reasonable accommodation because of the son’s disability. Under fair housing law, you’d have the legal obligation to give priority to the request to fix that resident’s air conditioning as a reasonable accommodation.

That doesn’t mean that residents who have—or say they have—a disability automatically get to go ahead of others waiting for maintenance services. The law requires a connection between the resident’s disability and his need for the requested accommodation. This would apply, for example, if a resident in a wheelchair asks for priority assistance to fix one of two toilets in his unit because it’s the only one that’s accessible for his wheelchair. In contrast, he’d probably have to wait his turn for maintenance to fix the light in his refrigerator.

Rule #3: Consider Alternatives to Chemical Agents, Pesticides as Reasonable Accommodations

Pay attention if a resident objects to your use of certain painting, cleaning, or pest control supplies. If the resident says she can’t be around the product because of a medical problem, then you’re under an obligation to stop—and evaluate whether you must consider alternatives as a reasonable accommodation for an individual with a disability.

Anytime anyone says she needs or wants something because of a disability, it should be a red flag that you’re facing a reasonable accommodation request. Under the FHA, a resident makes a request for a reasonable accommodation whenever he makes clear that he is requesting an exception, change, or adjustment to a rule, policy, practice, or service because of a disability, according to federal guidelines. The law doesn’t require that requests for reasonable accommodations be made in a particular manner or at a particular time, so the resident may not even mention fair housing law or use the words “reasonable accommodation.”

Not everyone who says he has a disability is entitled to a reasonable accommodation. The disability provisions apply to a broad array of impairments, many of which don’t have any obvious symptoms, but only if the impairment substantially affects a major life activity. For example, HUD recognizes multiple chemical sensitivity and environmental illness as disabilities under the FHA, but not ordinary allergies.

When faced with situations like this, it’s not up to the maintenance staff to figure out whether a resident qualifies as an individual with a disability—or whether she’s entitled to what she’s asking for or some alternative accommodation. The important thing is to notify management immediately if the resident raises such concerns while you’re on the job.

Rule #4: Be Prepared for Disability-Related Requests About HVAC System

When performing maintenance services, your work orders may include requests for other types of accommodations for residents with disabilities, such as installing visual smoke detectors for a resident with a hearing impairment. Or it might be a request to supplement or alter the building’s heating or air conditioning systems for residents with disabilities that make them particularly sensitive to temperature extremes or fluctuations.

Handling these requests can be tricky, because courts may consider such requests to be for a reasonable accommodation, a reasonable modification, or a combination of the two. In general, a reasonable accommodation is a change to a rule, process, or procedure; a reasonable modification is a change to the physical characteristics of the unit or common areas. It makes a difference because the law usually requires the community to pay the costs associated with reasonable accommodation requests, but residents (in conventional housing communities) are generally responsible to pay for reasonable modifications.

For example, let’s say a resident asks you to supply a window air conditioner—despite the community’s rules against exterior ACs—because her disability makes her sensitive to the heat. If she has a disability-related need for supplemental air conditioning, then the community must consider making an exception to its rules against exterior ACs as a reasonable accommodation and permit her to buy and install the unit at her own expense as a reasonable modification. Alternatively, the community may work out a compromise, for example, by providing her with a floor unit for the season, which would address her need for additional air conditioning (and save her money) without affecting the building’s exterior appearance.

In contrast, the community may be justified in denying a requested accommodation because it’s unreasonable. Under the FHA, a request is not reasonable if it imposes undue financial and administrative burdens on the community or fundamentally alters the community’s operations.

Example: A court recently ruled that a Florida community didn’t violate fair housing law by refusing a resident’s request to keep his personal appliances in his unit.

The resident lived in a high-rise building, where many of the residents were elderly or disabled. The building sold in 2009 and, as part of a multimillion dollar renovation, the new owners told residents that they could no longer operate large personal appliances in their units. The resident asked the community for a reasonable accommodation so he could keep his air conditioner, a washing machine, and a dryer. When the community denied the request, he sued for fair housing violations.

A court dismissed the case, and in March 2014, the appeals court upheld the decision, ruling that the community wasn’t liable for denying his request to keep his personal appliances, because the request wasn’t reasonable. The community’s architectural expert said that the building’s electrical system was already operating at near-maximum capacity and couldn’t accept the additional load of an air-conditioner or washer/dryer, and that upgrading the system to increase capacity would be prohibitively expensive.

The resident had no evidence to dispute the expert’s opinion. Even though the former owners allowed personal appliances, they may not have known that the electrical panels were near full capacity. And since the ban on large appliances came only after the building underwent major renovation, including an overhaul of its central air system, the old policies may no longer have worked [Fisher v. SP One, Ltd., March 2014].

COACH’s Tip: An accommodation request may also be unreasonable if granting the request would require a fundamental alteration of the community’s operations. Federal guidelines offer an example involving a resident with a mobility impairment that substantially limits his ability to walk. He asks the landlord to drive him to the grocery store and help him with his shopping as a reasonable accommodation to his disability. Since the community doesn’t provide transportation or shopping services to its residents, granting his request would require a fundamental alteration in the nature of its community’s operations. The request may be denied, but the guidelines advise communities to discuss whether there are any alternative accommodations that would effectively meet the resident’s disability-related needs without fundamentally altering its operations.

Rule #5: Be Friendly—Not Friends—with Residents

To provide good customer service, you should be friendly—but not too friendly—with residents when providing maintenance services. Being overly friendly could give residents the wrong impression—and lead to accusations of sexual harassment, a serious violation of fair housing law.

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex. It might be a manager or maintenance worker promising to do something special for the resident in exchange for sexual favors, or threatening to punish the resident for refusing sexual advances. Courts refer to that kind of misconduct as “quid pro quo” (which means “this for that”) sexual harassment.

It’s also unlawful to create what’s known as a “hostile sexual environment”—when the managers or staff subjects residents to sexual behavior of such severity and pervasiveness that it results in an environment that’s intimidating, hostile, or offensive.

The law protects both men and women from sexual harassment—whether the perpetrator is male or female. The key is that the unwelcome sexual conduct is directed at a particular individual because of his or her gender, so it doesn’t matter whether the harassment is motivated by sexual desire or by hostility toward a particular gender—or if the harasser and the victim are of the same sex.

Sexual harassment claims may be based on one or both types of misconduct. And liability for sexual harassment by employees runs up the management chain all the way to the ownership, regardless of whether they knew about it or were negligent in failing to prevent it from occurring, according to HUD. If, for example, an apartment manager authorizes a maintenance worker to enter a resident’s home to make a repair, and the maintenance worker sexually harasses the resident, then the management company would be legally responsible for the discriminatory actions of the maintenance worker, HUD says. Depending on the severity of the charges, communities have paid out large settlements to resolve fair housing claims based on sexual harassment.

Example: This summer, the owners and operators of a Michigan community agreed to pay $550,000 and to terminate its property manager to settle a lawsuit for sexual harassment in violation of fair housing law. The complaint, filed by the Justice Department, accused the former manager of sexually harassing female residents at the community he managed. The complaint alleged that the manager made unwelcome sexual comments and sexual advances to female residents, touched himself in a sexual manner in front of them, entered their homes without notice or permission, conditioned housing benefits on tenants engaging in sexual acts, and took adverse action against those who refused his advances.

Under the settlement, the community agreed to pay $510,000 to alleged victims and a $40,000 penalty. It also barred the former manager from personally participating in the management or operation of residential rental properties in the future and requires him to retain an independent manager to manage any rental properties he may later own [U.S. v. Vandervennen, August 2014].

Maybe you don’t intend to do anything creepy, but being overly friendly—by flirting, sharing suggestive jokes, or asking residents out—is risky because you never know how the resident may take it. And don’t put yourself in a compromising position if the resident comes on to you. Even a romance can turn sour—and lead to accusations of sexual harassment if the situation deteriorates. Better to maintain a friendly—but professional—attitude to prevent things from getting out of hand.

COACH’s Tip: Watch your back: Don’t enter units to perform maintenance services if the resident leaves her kids home alone, Green warns. Your conduct may be above board, but that might not protect you from false allegations of inappropriate conduct. Even if you’re ultimately vindicated, the accusations alone can be devastating for you, your family, and your community. If a child under 18 answers the door, find out whether his parent—or other adult is home. If not, don’t go into the unit—absent an emergency—without arranging for a coworker or other responsible adult to accompany you.

Rule #6: Watch What You Say, But Report What You Hear

You never know when it might happen. Someone visiting the community might strike up a conversation and make comments or ask questions about the community. Be very careful about how you answer—even seemingly innocent questions can get you into fair housing trouble.

The FHA prohibits discriminatory statements—anything you say, write, or post online—that indicates any preference for or discriminates against anyone based on a protected class. The law bans racial or ethnic slurs, but it’s broader than that because these rules apply regardless of discriminatory intent. Instead, the focus is on whether an ordinary listener would believe the statement suggests a preference based on protected class.

So it’s dangerous to answer questions from visitors about how many people of a particular race, ethnicity, or religion live in the community. It may seem like it’s okay to answer if the person asking the question is of that same racial, ethnic, or religious group, but don’t be fooled. You shouldn’t answer questions about protected characteristics of your community’s residents no matter who asks the question. And remember that familial status is also a protected class, which means you shouldn’t respond to questions or comments about how many children live at the community.

When talking to residents, don’t share personal opinions or indicate agreement with a resident who complains about neighbors, such as displeasure with cooking odors or noisy children. Keep your personal feelings to yourself and tell the resident to contact the management with any complaints.

And be prepared for questions from neighbors and others about why a resident is getting priority service or an exception to the community’s standard policies or services. They have been waiting for maintenance services ahead of the resident, or want the same special treatment themselves. Whatever the reason, you should be careful about how you respond because the law generally requires that disability-related information be kept confidential. It’s best to keep mum about what you’re doing—or why you’re doing it—and refer anyone questioning you about it to the office.

And follow up yourself by reporting incidents like these to your supervisor or management team. Explain what happened and how you handled the situation, so that they can document what occurred.

In fact, it’s a good idea to report anything out of the ordinary that you might see or hear while going about your duties. Examples include a dispute between neighbors or a possible hoarding situation. Things happen and people talk, but management may not know about it until you report it. Depending on the circumstances, it might be the community’s first inkling of a situation that should be monitored—or addressed—to ward off fair housing trouble.

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

COACH Sources

Doug Chasick, CPM®, CAPS, CAS, Adv. RAM, CLP, SLE, CDEI: The Apartment Doctor, 180 Heron Drive, Melbourne Beach, FL 32951; (321) 956-2188; dchasick@aptdoctor.com.

Nadeen W. Green, Esq.: Senior counsel, For RentMedia Solutions™, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

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

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