New Year, New Focus: 10 Resolutions To Improve Your Fair Housing Program

New Year's is a time when many of us take a look back and resolve to make some changes in the upcoming year. The most popular resolutions involve personal goals such as losing weight, getting a better job, or reducing debt, according to the U.S. government. (Yes, the government has compiled a list of popular resolutions and resources on its Web site, www.USA.gov, to help people accomplish these goals).

From a fair housing perspective, the New Year also presents an ideal opportunity to review your current policies and practices—and resolve to make improvements where you can. It's a worthwhile endeavor—even if you have a solid fair housing program—because there are many pitfalls that can inadvertently trigger a discrimination complaint.

To mark the beginning of the New Year, we polled members of our advisory board for their opinions about the most common fair housing mistakes—and strategies on how to avoid them. With their guidance, we've assembled a Top 10 list of New Year's resolutions to help your community avoid these potential fair housing pitfalls.

In this month's issue, we'll review the basics of fair housing law and give you an overview of 10 strategies to improve your community's fair housing program. Then, you can take the Coach's Quiz to see how much you've learned.

COACH'S TIP: Stay tuned for more information on the top 10 fair housing strategies. As the year progresses, we'll address each one in detail in upcoming issues of Fair Housing Coach.

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.

Most of these protected characteristics are self-explanatory, but familial status has a specific meaning under the FHA. In general, familial status protections apply to children under the age of 18 living with a parent or legal custodian, pregnant women, and people securing custody of a child under the age of 18. The familial status provisions do not apply if the housing qualifies as “housing for older persons” as defined under the FHA.

At its most basic level, the law bans intentional discrimination based on the seven protected characteristics. However, the law goes further to outlaw policies or practices that have the effect of discriminating against anyone based on race, color, religion, national origin, sex, disability, and familial status.

To combat all forms of housing discrimination, the FHA makes it unlawful to engage in specified conduct if based on a protected characteristic, including:

• Refusing to rent or negotiate for housing.
• Making rental housing unavailable.
• Using different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures.
• Setting different terms, conditions, or privileges for the rental of housing, such as different lease provisions related to rental charges, security deposits, and other lease terms.
• Providing different housing services or facilities, such as access to community facilities.
• Failing to provide or delaying maintenance or repairs.
• Falsely denying that housing is available for inspection or rental.
• Discouraging the rental of a unit by exaggerating drawbacks or saying that the prospect would be uncomfortable or incompatible with existing residents.
• Assigning residents to a particular section of a community or floor of a building.
• Threatening, coercing, intimidating, or interfering with anyone exercising a fair housing right or assisting others who exercise that right.
• Making, printing, or publishing any statement that indicates a preference, limitation, or discrimination.

The FHA also includes additional provisions applicable to individuals with a disability, which apply if an individual—or someone associated with him—has a physical or mental impairment that substantially limits one or more major life activity. The law also applies to individuals with a record of a disability and those who are regarded as having such a disability.

To provide additional protection against housing discrimination based on disability, the FHA makes it unlawful to:

• Refuse to allow reasonable modifications to the unit or common-use areas, at the applicant or resident's expense, if necessary for an individual with a disability to fully use the housing.
• Refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for an individual with a disability to fully use and enjoy the housing.

COACH'S TIP: For more on the basics of fair housing law, review the April 2010 issue of Fair Housing Coach, “Fair Housing 101: How to Comply with Fair Housing Law.”

10 RESOLUTIONS TO IMPROVE YOUR FAIR HOUSING PROGRAM

Resolution #1: Keep Personal Biases Out of Your Community

First impressions may be hazardous to the health of your fair housing program. There's a common human tendency to form snap judgments based on first impressions about how someone looks, dresses, or speaks, but it's easy to forget that those attributes often are closely linked to race, color, religion, sex, national origin, familial status, or disability.

Even if you do not consciously intend to discriminate against anyone based on a protected characteristic, your community could be hit with a discrimination complaint if snap judgments or personal biases based on an individual's name, manner of speech, lifestyle, and other personal characteristics affect the way that a prospect, applicant, or resident is treated at your community. Even the appearance of unfavorable treatment based on how an applicant looks, speaks, or dresses could lead to a discrimination claim.

Fair housing experts have long warned against voice profiling—treating someone differently because of the way they speak on the telephone—because it could lead to accusations of discrimination based on race, national origin, or other protected characteristic.

Example: Fair housing testing performed last year uncovered voice profiling against African Americans in the Philadelphia rental housing market, according to the Fair Housing Council of Suburban Philadelphia. The council partnered with a linguistic expert to evaluate the level of racial profiling experienced by African Americans when they inquired about housing over the phone. The council reported that in 54 percent of tests, testers who sounded African American were treated less favorably than testers who sound white. When compared to their white counterparts, African-American testers were asked to pay increased security deposits, were offered fewer units, and were less likely to be told about discounts. In 8 percent of the tests, testers who sounded African American didn't receive return calls, while white testers received return calls and information about available housing.

In the latest incarnation of unlawful profiling, one fair housing expert warns against email profiling—treating someone differently based on information gleaned from a prospect's email address. The name used in the email address could suggest the prospect's race, sex, or national origin, while the domain name from which the email was sent could indicate where the prospect works. If you get too busy to respond promptly to an email, you may be scolded by your marketing people for missing a rental opportunity, but you could also face a bigger problem because fair housing advocates can—and often do—attribute your failure to respond to unlawful profiling.

Resolution #2: Beef Up Fair Housing Training

Don't be penny-wise and pound-foolish on fair housing training. Fair housing experts warn that you should never let any employee speak to prospects, applicants, or residents until she has completed at least one fair housing class and met with her supervisor to review your community's policies and procedures. It's not uncommon for fair housing problems to arise from stray comments by new employees who don't understand the basics of fair housing law.

But fair housing training means more than simply memorizing the protected characteristics and prohibited practices, according to a fair housing expert. It's essential to ensure that your staff understands how fair housing law applies in real-life situations.

Be sure to integrate basic customer service and communication training into fair housing training. With increased diversity among your prospects and residents, basic customer service skills should enable your staff to act in a professional manner and avoid gaffes that could be misconstrued as discrimination based on language or cultural differences.

Conducting fair housing training sessions on a regular basis also serves another important function: It fosters open lines of communication with your staff. Encourage employees to report anything they see or hear that even hints at a fair housing problem. Be sure to include all your employees, not just your leasing staff, because your maintenance workers, housekeepers, and landscaping crew can alert you to potential problems that you might not otherwise hear about.

Resolution #3: Keep Up with State and Local Fair Housing Laws

To avoid fair housing trouble, it's essential to know what the law is in your state and local area. Many state and local governments have expanded fair housing protection well beyond the seven federally protected characteristics. Examples include marital status, source of income, sexual orientation, gender identity, age, ancestry, creed, military service, political affiliation or belief, arrest or criminal history, physical appearance, and immigration status.

Although enforcement mechanisms differ from the federal system—and vary from place to place—communities risk administrative penalties and potential litigation for failure to comply with applicable state and local laws.

Example: Last year, the Massachusetts Attorney General's Office announced that a real estate company settled allegations that it violated a state law banning discrimination against persons holding state or federal housing subsidies. The complaint alleged that an employee told the prospect that the community had too many Section 8 vouchers already and could not take any more. The settlement required the company to help the prospect find a unit and to pay a portion of the rental cost in addition to other terms and conditions.

Fair housing experts say that the laws are changing so fast on the state and local level that it's necessary to review your fair housing policies to reflect any changes affecting your community. If your policy has been in place for some time, you could be vulnerable to a fair housing claim if additional protected classes have been added to your state or local law during the intervening years.

It's also important to monitor proposed changes in your state and local laws. Fair housing experts note increasing efforts to add protections for domestic violence survivors and to expand protections based on sexual orientation to cover gender identity. Meanwhile, with increasing numbers of returning veterans from the wars in Afghanistan and Iraq, some fair housing experts predict that many jurisdictions will add military status to the list of protected characteristics.

Resolution #4: Take a Fresh Look at Your Advertising

With the growing trend to use social media as a marketing tool, it's more important than ever to refresh your advertising policy. Community owners can get into big trouble by using certain words or phrases that express a preference for or against prospects based on a characteristic protected under federal, state, or local law.

Although fair housing rules on advertising were designed when print media was the only option, they apply in full force to any form of advertising—print ads, marketing brochures, and Internet postings. And although there has been no official guidance regarding social media platforms, fan pages on Facebook and other forms of social media could be considered a form of advertising under fair housing law.

Fair housing experts warn that government officials and advocacy groups are closely monitoring Craigslist and other Web sites for discriminatory advertising. Based on a nationwide study conducted in 2009, the National Fair Housing Alliance (NFHA) reported that thousands of illegal housing advertisements appear on the Internet every day, which led to 1,000 discriminatory advertising complaints with HUD in that year alone. According to the NFHA, illegal online advertising is responsible for the uptick in discrimination against families with children.

State officials have taken notice. In recent years, Massachusetts officials have been conducting a statewide investigation into reports of widespread discriminatory Internet advertising. The investigation has resulted in lawsuits against community owners across the state based on discrimination against families with children and against recipients of housing subsidies, which is a protected characteristic under state law.

Resolution #5: Develop a Standard Policy on Showing Units

If you don't have one already, take the time to develop a written policy on showing units. Although not required under fair housing law, a standard policy will protect your community from any accusations that you treated any prospect differently because of a protected characteristic.

Tailor the policy to your community and make it as detailed as possible, according to fair housing experts. Sit down with your staff to decide what works for your community. Get a consensus of when they wouldn't be comfortable conducting a unit tour based on the time of day, current weather conditions, and other circumstances. If you don't want to show units after dark, for example, your policy could state that you will not start a tour within a half hour of sunset—which would obviously mean that your cut-off time will be much earlier in the winter than in the summer. By the same token, the policy should describe the specific weather conditions that would prevent your staff from conducting a tour, such as during a thunderstorm, a blizzard, or a tornado watch.

Make sure the policy covers whether—or when—you require prospects to provide identification prior to taking the tour. For example, your policy could state that prospects are not required to provide identification before taking a tour, although our fair housing experts advise against that policy. Other options would be to require one adult—or all adults—taking the tour to provide identification. Check state law when determining who is considered an adult—it's usually 18, but it could be 17 or 16 in some states. And insist on a valid—that is, unexpired—government-issued ID. It doesn't have to be from the United States—it could be a valid driver's license from a foreign country.

Our fair housing experts warned against copying photo IDs before conducting a tour. In many cases, photocopies of pictures are of poor quality, but more importantly, taking and keeping a photocopy of a picture ID could open the door to potential fair housing problems. For example, a prospect could claim that his application was rejected because you could tell from his picture that he was African American.

With a written unit tour policy in place, make sure that your staff applies it consistently. And document that you did so—it will go a long way to dispel any accusations of discrimination in showing units.

Resolution #6: Handle Reasonable Accommodation Requests Properly

It's essential to have a thorough understanding of how to handle requests for accommodations and modifications, advise fair housing experts. More than half of all formal fair housing complaints are based on disability, many of which stem from a refusal to grant an accommodation request.

Train your staff on how to recognize accommodation requests—because they rarely present themselves as formal requests for reasonable accommodations. In fact, most residents don't even know that's what they are doing when they say they need or want something because of an impairment. If, for example, a resident tells a staff member that she needs to park closer to her unit because she has trouble walking to her assigned space, then that statement qualifies as a request for a reasonable accommodation. Make sure all your employees know how to recognize an accommodation request, because it doesn't matter whether the resident talks to a manager or a maintenance worker; it's still considered a request for a reasonable accommodation—and neglecting to do anything about it would amount to an unlawful denial of an accommodation request.

Have a standard procedure for handling accommodation requests, so every staff member knows how to respond. One fair housing expert recommended a scripted response—for example, telling the resident that you are happy to consider the request, asking her to fill out a request form, and assuring her that it will be considered as soon as possible—but making no promises that it will be granted.

When considering whether to grant an accommodation request, fair housing experts stress the importance of keeping an open mind, particularly if it involves a service animal. Increasingly, traditional service animals are trained to perform nontraditional tasks—for example, dogs trained to detect seizures or other maladies. On the other hand, requests may involve nontraditional service animals, such as miniature horses. You must consider each request based on the circumstances—and will face discrimination charges if you deny a request because you believe that all animals are simply pets.

Resolution #7: Ensure Policies Don't Discriminate Against Families with Children

Review your policies—ranging from occupancy standards to community rules—to ensure that your community does not violate fair housing protections based on familial status.

Occupancy standards can be a source of conflict because the law prohibits communities from excluding applicants or residents with children under the age of 18, unless the community qualifies under strict rules governing “housing for older persons.” It is 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 as to age or gender—as a reasonable occupancy standard, but you should check state and local occupancy rules, which may be different.

Put your policy on occupancy standards in writing and train your staff to apply them consistently. The policy should address situations when a child under 18 moves into a unit after the start of the lease. One fair housing expert recalls an owner saying he didn't want to rent to grandmothers, anticipating that they would soon start moving in their grandchildren.

Community rules governing resident conduct also can be a source of familial status claims. If your rules target children, you could be accused of discrimination unless you have reasonable objective reasons for the rule. For example, reasonable safety considerations and local laws would justify setting an age limit for children's use of the pool without an adult, but a rule banning children from playing outside without adult supervision could lead to a fair housing complaint.

Example: A Massachusetts condominium association agreed to pay $150,000 to settle allegations of discrimination based on familial status by imposing excessive fines against residents with children for violation of its rules. According to the Department of Justice, the condo association fined families with children more than $500 when their children played in the complex's outdoor common area, yet fined other residents only $10 for similar rules violations [U.S. v. Stonecleave Village Association, Inc., November 2010].

Resolution #8: Prevent Sexual Harassment and Other Forms of Sex Discrimination

Under the FHA's ban on discrimination based on sex, communities may not go out of their way to attract prospects of either gender, or to treat them differently because of their gender.

The FHA bans sexual harassment, which is considered a form of sex discrimination. The law applies to harassment against residents of either gender, though most cases involve the sexual harassment of women. Owners face potential liability for sexual harassment of female residents by property managers or other employees—even contractors—if they knew about it but failed to do anything to stop it.

Example: A jury recently found a Michigan owner and property manager liable to pay $115,000 in damages for sexual harassment, according to the Department of Justice. The jury found that the property manager subjected six women to severe and pervasive sexual harassment after the government presented evidence ranging from unwelcome sexual comments and sexual advances, to requiring sexual favors in exchange for their tenancy. The jury found the owner liable after one woman testified that she complained to the owner about the manager's conduct, but the owner allowed the manager to continue to manage his properties for nearly two more years [U.S. v. Peterson, August 2010].

Although sexual orientation and gender identity are not protected under the FHA, HUD has promised to take a close look at such complaints and to pursue them if they also involve discrimination based on sex or disability. For example, HUD says that a refusal to rent a unit to a prospect who is transgender could be considered sex discrimination if the housing denial is because of the prospective tenant's nonconformity with gender stereotypes.

Furthermore, many state and local laws ban discrimination based on sexual orientation or gender identity. Even when a formal complaint to HUD does not qualify under the FHA, HUD has adopted a policy to refer the matter for attention by the appropriate agency.

Resolution #9: Avoid Discrimination Claims Related to Residents' Guests, Friends, or Family

Review your guest policies to ensure fair treatment of residents' friends, family, and other associates. The FHA bans discrimination against residents—or against anyone who associates with them—based on race, color, or other protected characteristics.

Under those provisions, communities could be liable for discrimination against guests—such as a resident's friends, visitors, or aides—because of their race, color, or other protected characteristic. That means that if your policy allows guests to use your recreational facilities, you can't deny admittance to a guest for discriminatory reasons.

The law also bans discrimination against a resident because of his guests. That is, even if the resident is not a member of a protected class, he could file a fair housing claim if the community discriminates against him because he associates with members of a protected class.

Example: In October 2010, HUD charged a Mississippi owner and property manager with violating the FHA by refusing to renew the lease of a white resident because she associated with African Americans and has a biracial daughter. Among other things, HUD alleged that the property manager made discriminatory statements about renting to African Americans and tenants associating with African Americans [HUD v. Kelly, October 2010].

Resolution #10: Prevent Grievances from Getting Out of Hand

Do all you can to resolve grievances to avoid facing a formal fair housing complaint. Of course, you can't do anything to prevent or discourage a resident from filing a formal complaint—the FHA prohibits interference with anyone in the exercise of his rights under fair housing law. But you can—and should—be responsive to residents' informal grievances and try to work them out fairly and efficiently.

With a solid reporting policy and staff training program, you should learn about the problem at an early stage. Promptly contact the resident to assure him that you take the complaint seriously. Get his side of the story and conduct a full investigation, take appropriate action, and notify the resident of the results. Be sure to keep good records about all phases of the process—including the initial complaint, the investigation, the findings, and notice to the resident.

Take precautions against treating the resident differently because he has lodged a complaint. Although an allegation of discrimination does not give the resident a free pass for missing rent payments or other lease violations, you should contact your attorney for guidance on how to handle these types of situations to avoid a retaliation claim.

Fair Housing Act: 42 USC §3601 et seq.

COACH Source

F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 S. Plymouth Ct., Ste. CBA-800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.

Doug Chasick, CPM®, CAPS, CAS, Adv. RAM, CLP, SLE, CDEI: Senior VP, Multifamily Professional Services, CallSource, (888) 222-1214; dchasick@callsource.com.

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