Make 5 New Year’s Resolutions to Avoid Fair Housing Trouble in 2018

It’s New Year’s, a natural time to look back at the past year and think about the things we’d like to do differently in the upcoming year, such as losing weight, hitting the gym, or getting organized. Whatever your personal goals, turning the page on the calendar also makes it a good time to take stock of your current fair housing efforts—and make some New Year’s resolutions to help your community avoid fair housing trouble in the upcoming year.

It’s notoriously difficult to stick with New Year’s resolutions, so we’re going to focus on three key areas that have taken on increased importance this year: sexual harassment, disability-related requests for assistance animals, and discriminatory policies aimed at families with children. Of all the potential sources of fair housing trouble, these three seem to have drawn the most attention from federal enforcement officials last year.

In this month’s lesson, we’ll review the basics of fair housing law and offer five New Year’s resolutions to help you avoid fair housing trouble in the coming year. 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) forbids discrimination in housing on the basis of race, color, religion, sex, national origin, disability, and familial status. In addition, many state and local fair housing laws ban discrimination based marital status, age, sexual orientation or identity, source of income, and other characteristics.

In a nutshell, federal fair housing law prohibits communities from denying housing to people—or to treating them differently—based on their race, color, religion, sex, national origin, disability, and familial status. It’s unlawful to deny housing to people or otherwise discourage them from living at the community by misrepresenting availability of units, because of their racial or ethnic background—or because they have a disability or have children living with them. It’s also unlawful to treat people differently by imposing different terms, conditions, or privileges for rental, such as higher rental payments or fees, more stringent screening criteria, or different housing services because of their race, color, religion, sex, national origin, familial status, or disability. In separate provisions, the law bans discriminatory statements, including advertisements, that suggest that the community has a preference for, or against, prospects, applicants, or residents based on a protected characteristic. It’s also unlawful to threaten, harass, or retaliate against anyone for exercising his or her rights under fair housing law.

In addition to these general rules, the FHA imposes affirmative duties on housing providers to ensure that individuals with disabilities have the same opportunity as everyone else to have full use of the community. Among other things, the law requires communities to consider requests for reasonable accommodations—that is, exceptions or adjustments to rules, policies, practices, or services—when necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling. Common requests involve assistance animals or designated parking spaces.

The FHA also requires communities to consider requests to permit an individual with a disability, at his expense, to make reasonable modifications—that is, structural changes to the housing—when necessary to afford him full enjoyment of the premises. Requested modifications may be inside units, such as removal of carpeting or installation of visual smoke detectors, or outside in common use areas, such as installation of ramps or curb cuts in the parking lot.

5 NEW YEAR’S RESOLUTIONS

FOR AVOIDING FAIR HOUSING TROUBLE

Resolution #1: Adopt a Zero-Tolerance Policy on Sexual Harassment

Preventing sexual harassment should be #1 on your list of New Year’s resolutions for 2018. Sexual harassment is a form of sex discrimination banned under the FHA. The basic rules haven’t changed much, but it’s becoming increasingly urgent to take all steps necessary to prevent sexual harassment at your community. Accusations against high-profile celebrities, politicians, and media moguls, fueled by the #MeToo movement, have raised awareness and pushed the issue into the national consciousness. It’s too soon to tell how it may affect the rental housing industry, but you should be prepared in case it leads more applicants and residents, past and present, to come forward with allegations of sexual harassment by owners, managers, or employees of rental housing communities.

Even before the current news cycle, federal authorities have made efforts to combat sexual harassment in rental housing. In October 2017, the Justice Department announced a new initiative to increase efforts to protect women from harassment by landlords, property managers, maintenance workers, security guards, and other employees and representatives of rental property owners.

“No woman should be made to feel unsafe in her own home,” Acting Assistant Attorney General John M. Gore, of the Justice Department’s Civil Rights Division, said in a statement announcing the initiative. “The Justice Department is committed to vigorously enforcing the Fair Housing Act’s ban on sexual harassment and is looking forward to working closely with state and local partners to combat this problem.”

Meanwhile, the Justice Department and HUD continue to come down hard on rental property owners and managers accused of sexual harassment against residents and applicants. It’s not only the perpetrator who faces potential liability for sexual harassment: Owners and managers may face liability for the actions of the perpetrator if they knew or should have known about it but didn’t do anything to stop it.

Example: In September 2017, the Kansas City, Kansas, Housing Authority and three of its former employees agreed to pay $360,000 to 14 current and former residents and applicants to resolve a sexual harassment lawsuit. In its complaint, the Justice Department alleged that one employee subjected women to unwanted sexual conduct as a condition for favorable hearing decisions, including asking them sexual questions, showing pornographic pictures and videos, making explicit sexual comments, and exposing himself. The complaint also alleged that two other employees explicitly conditioned housing benefits in return for sexual favors and made repeated unwelcome and offensive sexual advances to women residing in or applying for public housing. 

Example: In October 2017, the owner and manager of private rental housing in Michigan agreed to pay $150,000 to resolve allegations that he sexually harassed multiple women who lived in or inquired about his rental properties. In its complaint, the Justice Department alleged that the landlord’s unlawful conduct included making unwelcome sexual comments and advances towards them, engaging in unwanted sexual touching, offering housing benefits in exchange for sex acts, and taking or threatening to take adverse housing actions against women who objected to his harassment.

Example: In November 2017, HUD charged the owner and landlord of several rental properties in Kansas, and his wife, who co-owned one of the properties, with housing discrimination after the landlord allegedly sexually harassed two female tenants at his properties. The HUD complaints were filed by two female residents, who accused the landlord of making unwanted sexual advances toward them, harassing them, and evicting them because they refused his advances. The charge is slated for an administrative hearing unless any party elects to take the case to court.

“Landlords who use their position to intimidate or harass residents or to attempt to trade sexual favors for rent violate the sanctity of a woman’s home, the place where she should feel the safest,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to protecting the housing rights of those who are sexually harassed and will continue to take action any time housing providers violate those rights.”

This year, take all steps necessary to prevent and address sexual harassment at your community. A zero-tolerance policy against sexual harassment is a good first step, but you’ll need adequate training, supervision, and enforcement to back it up. Provide a mechanism so that people may report sexual harassment to management and a process in place so that any complaints are addressed quickly and effectively.

Editor’s Note: See the Coach’s July 2017 lesson, “Everything You Always Wanted to Know About Sex (Discrimination)…But Were Afraid to Ask,” for an in-depth discussion of fair housing rules banning discrimination based on sex, including sexual harassment. And stay tuned for details about the Coach’s upcoming webinar on how to prevent and resolve fair housing claims for sexual harassment at your community. 

Resolution #2: Handle All Requests for Reasonable Accommodations or Modifications Properly

This year, resolve to beef up your response to requests by applicants and residents for disability-related reasonable accommodations, such as assistance animals, parking accommodations, and transfer requests. More than half of all formal fair housing complaints are for disability discrimination, and enforcement officials continue to take tough action against landlords for failure to properly deal with reasonable requests for accommodations or modifications by individuals with disabilities.

Example: In November 2017, the Justice Department sued a public housing authority in Connecticut, alleging discrimination against individuals with disabilities in violation of the FHA and other federal laws. Among other things, the complaint accused the housing authority of systematically mishandling and failing to fulfill requests for reasonable accommodations for residents with disabilities. In a related matter, the housing authority agreed to pay $10,000 to a resident to resolve her claim that it unlawfully refused to grant her reasonable accommodation request to be transferred to a different unit because of her disability.

To avoid fair housing trouble, it’s best to have a standard procedure for handling accommodation requests and provide training to your staff, so they know to apply the policy whenever an applicant or resident says she needs or wants something because of a disability. Thoroughly evaluate the request, request verification if necessary, and respond in a timely manner. Be sure to document every step in the process so you’ll have everything you need to show you responded properly in case your actions are ever questioned.

Editor’s Note: The Coach recently hosted a webinar reviewing fair housing rules governing when and how to verify disability after receiving a request for a reasonable accommodation. In the one-hour webinar, speaker Theresa L. Kitay explained fair housing disability rules, including:

·      Who qualifies as an individual with a disability;

·      When it is—and isn’t—appropriate to seek third-party verification of an applicant’s disability;

·      What qualifications the person verifying an applicant’s disability should have; and

·      What information is considered adequate verification—and how much is “too much.”

A recording of the webinar, “When and How to Verify Disability After Receiving an Accommodation Request,” is available here and at www.VendomeRealEstateMedia.com.

Resolution #3: Don’t Treat Assistance Animals as Pets

Resolve to get a better handle on how you address reasonable accommodation requests concerning assistance animals. Fair housing law doesn’t prevent you from regulating whether and when residents may keep pets at your community—as long as you understand that you must make an exception to your pet rules as a reasonable accommodation for an individual with a disability who needs an assistance animal to fully use and enjoy the premises.

Don’t confuse assistance animals with pets. Though it may look like a pet, walk like a pet—even sound like a pet, assistance animals are not pets under fair housing law. They’re animals that perform work or tasks for the benefit of a person with a disability—or provide emotional support that alleviates one or more identified symptoms or effects of a disability, according to HUD. Each year, communities find themselves accused of violating the reasonable accommodation rules by applying rules restricting pet ownership to applicants and residents with qualifying assistance animals.

Example: In November 2017, the owner of several rental communities in San Jose, Calif., agreed to pay $100,000 to settle claims that he discriminated against residents with disabilities by refusing to allow them to have emotional support animals. In its lawsuit, the state Department of Fair Employment and Housing (DFEH) alleged that soon after the landlord purchased an apartment complex, he notified residents that he did “not like to deal with pets of any kind” and that they could not “introduce any new pet or replacement pet.” Allegedly, the letter made no exception for emotional support or companion animals as reasonable accommodations for residents with disabilities.

According to the complaint, the landlord later notified residents that there was a flea problem and the solution was to get rid of the pets; alternatively, he allegedly required the residents to provide a letter from a veterinarian, on a specified schedule, verifying that the animals did not have fleas. Allegedly, he issued a “three-day notice to perform or quit” to a resident for violating the lease by having a “pet/animal in the apartment” and ultimately evicted two residents with emotional support animals.

“It is unlawful to harass or retaliate against tenants who make requests to live with emotional support or companion animals,” DFEH Director Kevin Kish said in a statement. “The law requires landlords to modify policies, including no-pet policies, to reasonably accommodate people with disabilities.”

Though it’s common for pet policies to allow only certain types of pets or to exclude animals based on their size or breed, these limits don’t apply to assistance animals. Even if your pet policy restricts the type or size of animals allowed at the community, you can’t exclude assistance animals on that basis. According to HUD, the FHA recognizes that assistance animals may include a wide variety of species that provide various forms of assistance—including emotional support—with or without specialized training. HUD says that size, weight, or breed restrictions may not be applied to an assistance animal.

Example: In November 2017, the Justice Department sued the owner and manager of a Minnesota apartment complex with discrimination for refusing to allow an Army veteran, who served three tours of duty in Iraq and Afghanistan, to keep an emotional support animal. The complaint alleged that the veteran requested an emotional support animal, explaining his need for the animal due to a psychiatric disability. While awaiting a response, he adopted a large dog, a Great Dane/Golden Retriever mix named Tank, as an emotional support animal. Allegedly, the landlord denied the veteran’s request and suggested that he get a cat instead of a dog because the community allowed only cats as emotional support animals and did not permit emotional support animals more than 12 pounds. Soon afterward, the landlord allegedly warned that the veteran was in violation of his lease by having the dog and filed to eviction action. Although it was later withdrawn, the veteran said that the landlord still would not allow him to keep the dog, so he moved out at the end of his lease. The case is pending in federal court.

Coach’s Tip: Don’t get confused by the different rules governing the types of animals allowed for use by individuals with disabilities in various settings, particularly the Americans with Disabilities Act (ADA), which applies to public places like restaurants or hotels. With only one limited exception, the ADA permits only individually trained service dogs—and excludes emotional support animals. But the FHA, which applies to multifamily housing communities, allows any type of animal, with or without specialized training, that provides assistance or emotional support to an individual with a disability. Breed, size, or weight limitations may not be applied to an assistance animal.

Resolution #4: Watch How You Treat Families with Children

This year, resolve to bone up on fair housing rules protecting children and their families from housing discrimination. The FHA bans discrimination based on familial status, which generally applies to households with one or more children under the age of 18. That includes families with children as well as grandparents, family members, and others with written permission to care for the child. The law also covers pregnant women and anyone else in the process of getting legal custody of a child.

Don’t make the mistake of trying to keep children out of the community by enforcing an “adults-only” policy. It doesn’t matter whether you—or your current residents—would prefer that children NOT live at the community. The only exception to the rules banning discrimination based on familial status applies to senior housing communities that meet strict technical requirements to qualify as “housing for older persons.” Otherwise, you could face a fair housing complaint if you deny housing to applicants because they have children in the family.

Example: In October 2017, HUD charged the owners and operators of two Pennsylvania communities with violating fair housing law by posting online classified ads that discriminate against families with children. A fair housing advocacy group filed the HUD complaint, accusing the community of repeatedly running ads on Craigslist that discriminate against families with children. Allegedly, one Craigslist ad for a two-bedroom unit read: “Not suitable for children/pets.” After the ad was posted, the group claimed that its testing indicated that the landlord demonstrated a preference for renting to applicants who didn’t have children. The charge will be heard by an administrative judge unless either party elects for the case to be heard in federal court.

“No family should be denied the opportunity to rent a home simply because they have children,” Anna María Farías, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “Today’s enforcement action reaffirms HUD’s commitment to make sure housing providers meet their obligations to treat all applicants fairly, regardless of whether they have kids or not.”

Don’t restrict where families can live by making certain units, floors, or buildings at your community off-limits to families with children. Limiting a prospect’s housing choices because they have one or more children under 18 in the household is a fair housing violation, commonly known as “steering.” In general, steering means guiding, directing, or encouraging prospects to live in—or not live in—certain sections of your community based on familial status and other protected characteristics.

Example: In July 2017, the Justice Department filed a lawsuit against the owners and managers of New Hampshire community, accusing them of discrimination on the basis of familial status by limiting the ability of families with children to rent anything other than first-floor apartments. The case began when the mother of a 3-month-old child visited the community to inquire about two-bedroom apartments. Allegedly, she was told that the community had a policy of placing families with children under the age of 10 in first-floor units only, but that no first-floor units were currently available and there was no room on the waiting list for first-floor units. According to the complaint, subsequent testing revealed evidence of discrimination on the basis of familial status, including statements indicating a policy of limiting new tenants with children under 10 to first-floor units.

Disputes over the community’s rules—or the way the rules are enforced—can lead to fair housing trouble based on familial status. You may have legitimate concerns about outdoor play activities that could damage property or disturb neighbors, but you could trigger a discrimination complaint if the rules unreasonably interfere with the ability of families with children to live at the community. Rules banning children from playing outside—or requiring adult supervision of children in common areas—could lead to accusations that you’re treating families with children less favorably than adult households living at the community.

Example: In June 2017, the Justice Department announced that the owners and managers of a Minnesota apartment complex recently agreed to pay $15,000 to the mother of five children who accused the community of discrimination based on familial status. The complaint claimed that the community violated fair housing law on the basis of familial status by enacting and enforcing overly restrictive rules limiting children’s presence in the hallways and common areas. According to the complaint, the lease stated that children were not permitted to be in the hallways or yard unless arriving or leaving the building and that there was a $50 fine for any child in the common areas or front yard. The complaint also accused the community’s manager of photographing children when they played outside and striking a 4-year-old twice on the buttocks for running in the hallways.

Coach’s Tip: Occupancy standards are increasingly coming under scrutiny as a source of fair housing trouble. It’s a violation of fair housing law to set overly restrictive occupancy standards that have the effect of excluding families with children under 18. HUD has set a general standard of two people per bedroom—without distinction to age or gender—as a reasonable occupancy standard, but there are numerous exceptions that could make it unreasonable under the circumstances.

Resolution #5: Keep Up with State and Local Fair Housing Laws

This year, resolve to learn more about applicable state and local fair housing laws. Many state and local governments have expanded fair housing protection well beyond federal law to ban discrimination based on sexual orientation, source of income, and various other characteristics. To fully protect your community from fair housing trouble, it’s important to understand—and abide by—all federal, state, and local fair housing laws applicable to your community.

Example: A housing provider in the District of Columbia recently agreed to pay $125,000 and change its policies to resolve a complaint alleging discrimination based on race and source of income in violation of federal and local fair housing laws. A fair housing advocacy group filed the complaint, alleging that telephone testing revealed that the housing provider refused to rent available units in certain areas of the District to recipients of Housing Choice Vouchers. Discrimination against renters who pay a part of their rent with a Housing Choice Voucher—known as source-of-income discrimination—is illegal under D.C. law. The complaint also alleged that the policy had a disparate impact on African-American renters, in violation of federal and local fair housing law. 

Review your policies—particularly if they have been in place for some time—to check for any changes to state and local laws that may affect your community. You could be vulnerable to a fair housing claim if additional protected classes have been added to your state or local law since your policies were last updated. For example, fair housing experts note increasing efforts to expand protections based on sexual orientation to cover gender identity and to add protections for domestic violence survivors as well as veterans and active-duty military members. 

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