Preventing Discrimination Against Jews, Muslims & Arabs

As war grips the Middle East, take steps to keep the peace at your property.

 

The war in the Middle East between Israel and Hamas has further fueled a new wave of antisemitism and Islamophobia across the country. The alarming rise in hate crimes and acts of discrimination directed against Jews, Muslims, Arabs, and other groups, including within the realm of housing, hasn’t gone unnoticed by the federal government. On May 25, before the war even began, the U.S. Department of Housing and Urban Development (HUD) sent a memorandum to 200 federally funded housing programs to raise awareness and help them identify and prevent antisemitism and Islamophobia in their leasing practices.

On Sept. 15, the Biden administration doubled down when HUD joined seven other federal agencies in “clarifying in writing for the first time” that antisemitism, Islamophobia, and related forms of discrimination violate not only the Fair Housing Act (FHA), a.k.a. Title VIII of the Civil Rights Act of 1964, but also Title VI, which bans discrimination in any program or activity receiving federal financial assistance from HUD.

Now that HUD has signaled its intention to make eradication of antisemitism, Islamophobia, and similar practices in housing a national priority, landlords would be well advised to do the same. This month’s lesson is dedicated to showing you how to do just that. First, we’ll explain the parts of the fair housing law that come into play when landlords discriminate against Jews, Muslims, and Arabs. Then we’ll identify the six potentially problematic practices that may constitute discrimination—even if that’s not their intent—and what you should do to eradicate them. We’ll finish up the lesson with the COACH’s Quiz so you can evaluate how well you’ve learned the material.  

DEEP DIVE

Middle East War Drives Alarming Increase in Hate Crimes

Bias incidents against Jews and Muslims in the U.S. have spiked dramatically in the weeks since the start of the Israel-Hamas war. The Council on American-Islamic Relations (CAIR), the largest civil rights organization in the nation, says that from Oct. 7 to Nov. 4, it received 1,238 complaints about bias incidents, more than triple the number of complaints received during the same period last year. “Both Islamophobia and anti-Arab racism are out of control in ways we have not seen in almost 10 years,” noted CAIR research and advocacy director Corey Saylor in a press release.

The Anti-Defamation League (ADL), which advocates for the civil rights of Jewish people, has also seen a “significant spike in antisemitic incidents” since the war began, citing a 388 percent increase between Oct. 7 and 23, more than half of which (190) were directly linked to the war. Meanwhile, the New York Police Department Hate Crime Task Force investigated 101 bias crimes during the month of October—a year-over-year increase of 124 percent, driven by a 214 percent jump in anti-Jewish incidents.

WHAT DOES THE LAW SAY?

The FHA makes it illegal to discriminate on the basis of race, color, religion, sex, familial status, national origin, or disability. Seeking to exclude Jews, Muslims, Arabs, Sikhs, South Asians, and others perceived to be members of such groups (for simplicity’s sake, we’ll refer to these groups collectively as “Jews, Muslims, and Arabs,” except where the context requires otherwise) may constitute discrimination on the basis of any one or combination of:

• National origin;
• Race;
• Color; and/or
• Religion.

National origin discrimination means treating people unfavorably because of their ancestry, ethnicity, birthplace, culture, or language, according to HUD guidance. That includes denying housing opportunities to people because they or their family are from another country, have a name or accent associated with a national origin group, or are married to or associate with people of a certain national origin.

Example: A couple accused their landlord of deliberately throwing up obstacles to prevent them from applying for their apartment, dragging its feet on making repairs to the unit, and seeking to evict them because they came from Egypt. The Arizona landlord denied the allegations but agreed to pay $227,500 to settle the case and avoid the costs and risks of a trial [State v. Villatree Apartments, July 2011].

Religious discrimination occurs when landlords exclude people because of their religion, level of observance, and/or relationships or associations with individuals of certain religions. The September 2023 HUD communication mentioned above cites the following as potential acts of religious discrimination against Jews and Muslims:  

• Refusing to rent to women who wear a hijab;
• Harassing tenants because of their religious practices or dress;
• Letting some tenants put up Christmas lights while refusing to let others put up decorations for non-Christian holidays;
• Telling applicants they won’t like a neighborhood because there’s no synagogue, mosque, or church nearby; or
• Banning use of a community room for religious purposes, while allowing tenants to use the room for secular gatherings.

Race discrimination means basing rental decisions or conditions on whether a person is white, African American, Asian, American Indian, or an Alaska Native, Native Hawaiian, or Pacific Islander, or any combination of the above.

Color-based discrimination refers to the visible color of a person’s skin—that is, whether the person’s skin is light or dark. It may apply to people of different races or the same race. For example, it would be discriminatory to lease to Arabs only if they have lighter skin tones.

Compliance Pointer: Keep in mind that excluding Jews, Muslims, and Arabs may also run afoul of state and local fair housing bans on discrimination based on ancestry and/or creed.  

6 RULES FOR AVOIDING DISCRIMINATION

AGAINST JEWS, MUSLIMS & ARABS

You don’t need a lecture about the evils of hatred and bigotry and how there’s no place for it in housing. Those who follow overtly antisemitic and Islamophobic rental policies and practices do so at their own risk. For the vast majority of landlords and their rental and managing agents, the real liability risk stems from subtle actions and omissions that, while well intentioned or at least neutral on their face, may inadvertently discriminate against Jews, Muslims, and Arabs. Here are six problematic practices to avoid.  

Rule #1: Don’t Express Your Personal & Political Opinions to Applicants & Tenants

Like most people in America, you and your staff probably have strong opinions on the war in the Middle East, antisemitism, Islamophobia, and race relations. That’s perfectly legitimate. These are crucial issues that require free and open public discussion and debate.

But you also need to recognize that the business of leasing multifamily housing is not an appropriate forum for such discussion and debate. So, be sure to keep your personal and political opinions to yourself and not express them to rental prospects and tenants. This rule pertains regardless of the race, religion, or nationality of the persons to whom you’re expressing your opinions or whether the opinion you express is one of support or scorn.

Example: Your leasing agent strongly supports Israel and believes that Hamas is a terrorist organization. She mentions this to a Jewish prospect in an attempt to show sympathy and solidarity. But the prosect is actually a tester and the leasing agent’s remarks become Exhibit A in the lawsuit a local fair housing advocacy organization files against you for discriminating against Muslims and Arabs.

Rule #2: Don’t Allow Your Personal Views to Affect Your Rental Decisions

Don’t let your personal views of the Israel-Hamas conflicts or combatants involved influence the way you treat rental prospects and tenants. While this might sound like an obvious point, there’s a distinct danger that your feelings will color your actions in ways so subtle that you don’t even recognize it. To underline the problem, several years ago, HUD ran this ad to illustrate the potentially toxic impact of stereotypes on the housing rights of Muslims.

Example: A person from Iran applies for an apartment. Considering Iran to be a renegade nation, the landlord doesn’t recognize the prospect’s driver’s license and other credentials, requires him to provide additional forms of identification and information, and ultimately rejects his application. He then leases the unit to a person from Europe without making him complete additional paperwork or verifying the information on the application. This would constitute disparate treatment on the basis of national origin.

DEEP DIVE

Should You Require Proof of U.S. Citizenship?

Screening prospects to verify that they’re in the country legally is a tricky issue. In January 2003, HUD issued a memo clarifying that the FHA “does not prohibit discrimination based on a person’s citizenship, immigration, or resident alien status. In other words, people who are in this country illegally can’t sue for discrimination under the FHA if that’s the sole reason they experience discrimination. However, excluding non-U.S. citizens and undocumented aliens may be deemed discrimination on the basis of religion, race, and national origin. Rule: FHA protections extend to every person in the U.S., regardless of their immigration or citizenship status.

Adding to complication is that Section 8 and other federally assisted housing programs actually require landlords to screen applicants to verify their U.S. citizenship or lawful immigration status. There are also states and municipalities where landlords are required to verify applicants’ immigration status or face stiff fines and potential loss of their business license.

Bottom Line: It’s crucial to consult an attorney and be aware of the fair housing requirements of your particular jurisdiction in determining your policies and protocols for screening and leasing to immigrants.

Rule #3: Don’t Express Racial, Religious, or Nationality Preferences in Your Ads

The FHA bars expressing any “preference, limitation, or discrimination” based on a person’s race, religion, national origin, etc. HUD interprets the prohibition very broadly as applying to any spoken, written, and online statements, including words, phrases, pictures, symbols, and other graphic images that send the message that housing isn’t available to particular groups. Liability is based not on what you mean but what you say and whether the communication would suggest an illegal preference to an “ordinary reader or listener.”

The starting point for compliance is to choose your words carefully. While phrases like “Christian community” and “no Jews” are clearly out of bounds, you must also be conscious and careful to refrain from using code language, dog whistles, or buzzwords that may send subtle messages of exclusion of Jews, Muslims, and Arabs. References to specific nationalities, religions, or houses of worship, such as “near X Church,” are all potentially problematic.

Rule #4: Don’t Require Applicants & Tenants to Speak English

In September 2016, HUD issued guidance confirming what several courts had previously ruled—namely, that excluding applicants or tenants based on their limited English proficiency (LEP) violates the FHA. Explanation: Statistically, most LEP people come from a country other than the U.S. Thus, disqualifying people because of their LEP has the effect of discriminating on the basis of national origin (and, in some cases, race and/or religion). Discriminatory practices to avoid include:

• Imposing an English-speaking language-related requirement on people of certain races or nationalities;
• Posting ads that contain blanket statements, such as “all tenants must speak English”; or
• Immediately turning away applicants because they’re not fluent in English.

Strategic Pointer: It’s imperative to ensure that leasing, management, and other staff remain calm, patient, poised, and professional at all times when dealing with LEP people. Giving in to frustration, even if it’s just a momentary and isolated lapse, may result in comments and actions that serve as evidence in a discrimination case against you.

Also, beware of linguistic profiling. Fair housing advocates often conduct telephone tests to check for linguistic profiling—that is, discrimination based on how a prospect sounds over the phone. If you routinely fail to return calls or give false information about the availability of units because the caller has a foreign accent, you face the risk of being sued for national origin discrimination.

Another growing risk is “email profiling,” or discrimination based on perceptions about racial, ethnic, or religious characteristics based on names used in online communications. In one notable study, Oregon State University researchers sent more than 1,100 identically worded email inquiries to Los Angeles-area landlords asking about vacant apartments advertised online. The inquiries were signed randomly, with an equal number using names that implied either Arab, African-American, or white ethnicity. Results: African-American and Arab names received significantly fewer positive responses than the white name in all rent categories and in both corporate and privately owned apartment complexes.

Rule #5: Avoid Illegal Steering

Beware of engaging in a form of discrimination known as steering when dealing with Jewish, Muslim, and Arab rental prospects. Explanation: The FHA makes it illegal to limit prospects’ housing choices by encouraging or discouraging them from living in your community, or certain parts of your community, because of their race, religion, national origin, or other protected characteristic.

According to HUD regulations, unlawful steering means guiding, restricting, or otherwise attempting to influence a prospect’s housing choices based on a protected characteristic. It could take various forms, such as discouraging a prospect from seeing or renting a unit in the community by exaggerating its drawbacks, or not mentioning its desirable features or suggesting that they wouldn’t be comfortable living there because of their race, religion, national origin, etc.

Example: A landlord tells a prospect wearing a hijab that she won’t be comfortable in the building because there are lots of Jewish tenants and there’s no mosque in the neighborhood.

Example: A landlord leases to Jews and Muslims but segregates them to separate buildings, floors, or areas within the community. While the policy might be a well-intentioned attempt to prevent disturbances and maintain tranquility, the landlord would still be guilty of steering.

Rule #6: Don’t Commit or Allow Others to Commit Harassment

As we documented at the start of the analysis, the Israel-Hamas war has aggravated religious and ethnic tensions and led to a spike in bias incidents and crimes directed against Jews, Muslims, and Arabs. These acts can happen at any time and in any setting, including your own apartment community. And if any of your tenants do suffer antisemitic or Islamophobic harassment, you could be held liable.

Explanation: Harassment against a rental applicant or tenant on the basis of a protected characteristic constitutes discrimination. In addition to refraining from harassing conduct, landlords are responsible for harassment committed by their leasing agents, managers, maintenance, and other staff. In addition, you may also be liable for failing to protect your tenants against harassment engaged in by other outsiders that you knew about and could have but didn’t take adequate steps to prevent.

Example: A group of Iraqi, Muslim, Hispanic, and other public housing tenants in San Francisco claimed they had to endure verbal abuse, racial slurs, threats, assaults, vandalism, and robbery in the months following the terrorist attacks of Sept. 11. They filed a discrimination lawsuit, claiming that the housing authority had knowledge of the harassment but failed to take reasonable steps to protect them. After nearly two years of litigation, the California federal court entered a consent decree alleging a pattern or practice of discrimination against public housing residents on the basis of race, color, national origin, and religion and ordering the housing authority to not only pay $200,000 in damages but also create a civil rights complaints hot line, train its employees to identify and respond to civil rights complaints, and to submit to three years of monitoring by HUD [United States v. San Francisco Housing Authority, N.D. Cal., January 16, 2004].  

DEEP DIVE

Courts Split on Landlord Liability for Tenant-on-Tenant Harassment

Another emerging issue is whether landlords are liable under the FHA for harassment committed by one tenant against another on the basis of race, religion, national origin, etc. So far, only two federal courts have addressed the issue, with split results:

Landlord Is Liable: The first case involved the tenant of an Illinois landlord who ruthlessly and continually harassed her lesbian neighbor over a 15-month period because of her sexuality. The victim complained repeatedly to the landlord. But instead of stepping in to help, management labeled her a troublemaker and plotted her eviction. So, the tenant sued. In a landmark ruling, the Seventh Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin) held that the victim had a valid claim for tenant-on-tenant harassment against the landlord [Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856 (7th Cir. 2018)].

Landlord Not Liable: The other major case came from New York and had similar facts but a totally different outcome. The tenant was the target of “a brazen and relentless campaign of racial harassment, abuse, and threats” from his neighbor. And as in Wetzel, the tenant’s appeals for help from the landlord fell on deaf ears. But unlike the Seventh Circuit, the Second Circuit Court of Appeals (which includes New York, Connecticut, and Vermont) ruled that landlords can’t be liable for tenant-on-tenant harassment, even if they know it’s taking place, because they don’t control tenants’ behavior. To rule otherwise, the majority reasoned, would force landlords to intervene in a wide range of common disputes between neighbors [Francis v. Kings Park Manor, Inc., 2021 U.S. App. LEXIS 8761, __ F.3d __, 2021 WL 1137441].

Compliance Strategy: While pursuing an active strategy to protect tenants against harassment is an ongoing imperative, you need to be on extra high alert right now during these times of war, especially if you have Jewish, Muslim, or Arab tenants. Your business and apartment community should have a written harassment prevention policy that includes, at a minimum:

• A statement that clearly prohibits employees/tenants from engaging in harassment against other tenants, including but not limited to harassment on the basis of race, religion, national origin, etc.;
• A mechanism that tenants/employees can use to report any harassment they experience or witness;
• A process for investigating complaints swiftly, fairly, and effectively by a qualified third person who’s not involved in the case;
• A provision (as well as express lease/contract language) making it clear that tenants/employees will be held accountable for harassment, up to and including the possibility of eviction/termination; and
• A statement reassuring tenants/employees that they will suffer no retaliation or reprisal for reporting harassment, as long as they do so in good faith believing the allegation to be true.