When First Impressions Don't Count: Avoiding Discrimination Based on Appearance and Speech

This month's issue addresses how you can get into fair housing trouble by relying on first impressions—that is, snap judgments about prospects, applicants, or residents—based on outward appearances.

Don't underestimate the power of first impressions. Social scientists say that we form impressions about other people within seconds—even fractions of seconds—of meeting them, a vestige of an evolutionary mechanism that helped early humans survive. Although it served us well in the distant past, our unconscious ability to size up people quickly based on outward appearances—and make snap judgments about their character, their background, their financial circumstances, and so on—can be dangerous in the modern world.

When it comes to fair housing, relying on first impressions when interacting with prospects, applicants, and residents can lead to problems because those snap judgments can—consciously or not—affect your behavior. Some social scientists posit that everyone—even those most committed to fair housing principles and members of protected classes themselves—have hidden biases—that is, unconscious, automatic beliefs about other people influenced by their upbringing, social network, mass media, and the society at large. Psychologists say that these unconscious biases are at play when we form our first impressions of people, which in turn can influence our behavior toward them.

And of course, first impressions go both ways—the prospect is also sizing you up within those first early seconds of contact. Whatever your first impression of a prospect, it's likely to show in your facial expressions or attitude, which in turn influences the prospect's first impression of you. If your first impressions of the prospect are negative, he may form his own snap judgment—that you are prejudiced and have discriminatory motives for whatever happens next.

To see how this could play out in real life, let's say a poorly dressed prospect enters your office and asks about your most expensive unit. Based on his shabby appearance, your first impression is that he can't afford to live in your community—which may, consciously or not, be influenced by the fact that he is African American. Even if you don't say a word, your gut reaction—disbelief or disdain—may be displayed in your facial expressions or body language. In turn, the prospect picks up on these nonverbal signals, triggering his first impression of you—a negative one—and the perception that you are prejudiced against him because of his race. Consequently, even if you are motivated solely by your doubts about his ability to afford the unit, he may attribute anything you say or do to discourage him from seeing the unit or filing an application to unlawful discrimination and file a formal fair housing complaint.

In this month's issue, we've gathered advice from fair housing experts and offer eight strategies for avoiding the pitfalls of allowing first impressions to undermine your efforts to comply with fair housing law. Then, in the COACH's Quiz, you can see how much you have learned.

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.

Of course, everyone has the right to have their own personal beliefs and opinions, so there's nothing unlawful about judging people based on outward appearances. It's only when you cross the line and engage in unlawful discriminatory practices that you may be liable for a fair housing violation.

Nevertheless, even in the absence of unlawful behavior, it's risky to treat people differently based on personal attributes, such as their physical features, mannerisms, clothing, speech, or lifestyle choices—many of which are closely related to characteristics protected under federal, state, or local fair housing laws. Your negative impressions of a prospect based on how he looks, speaks, or acts may raise the perception of bias, which could trigger a fair housing complaint. Even if it's unfounded, you'll have to devote significant time and resources to defend against the claim.

An obvious example is skin color. Discrimination against African Americans based on their race or the color of their skin is exactly what spurred lawmakers to enact fair housing laws in the first place. In addition, prospects from other ethnic groups, such as those of Hispanic, Asian, or Middle Eastern descent, may file discrimination claims based on skin color—coupled with national origin—if your first impressions lead you to make them feel unwelcome at your community.

In addition, relying on first impressions of a prospect's physical features in how you treat individuals with physical or mental disabilities could lead to a discrimination claim.

Personal opinions about a prospect's clothing, grooming habits, or body art—such as tattoos or piercings—could also lead to fair housing trouble if those characteristics influence how you treat them. For example, many Muslim men and women, and followers of Sikhism, a religion originating in Southeast Asia, wear headcoverings in keeping with their religious beliefs. And in many parts of the world, body art and piercings are common among some religious and ethnic groups. Discrimination against prospects whose clothing, grooming, or bodily adornments are in keeping with their religious or cultural traditions could trigger a fair housing claim based on religion or national origin. And even without the issue of religion or national origin, in some areas “personal appearance” is a fair housing protection.

Even without seeing a prospect, you could face a fair housing complaint if you treat people differently based on the way they speak. Fair housing advocates have long targeted 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 sounds like he's African American or has a foreign accent, you could face a discrimination complaint based on race or national origin. The same holds true if you ignore calls or emails from prospects because of assumptions about their race or ethnicity based on their name.

Finally, you could face a fair housing complaint if you turn a prospect away based on outward appearances because you disapprove of her sexual orientation, gender identity, or gender expression. The FHA does not ban discrimination based on those characteristics, but HUD's recent policy is to closely review such complaints to determine if they are related to other characteristics protected under federal law. As an example, HUD says, discrimination against a female prospect because she wears masculine clothing or engages in physical expressions that are stereotypically male could be considered sex (gender) discrimination. Even in cases that don't qualify under federal law, HUD has pledged to refer them for enforcement under state and local laws that ban discrimination based on sexual orientation, gender identity, or gender expression.

8 RULES FOR PREVENTING FAIR HOUSING COMPLAINTS BASED ON FIRST IMPRESSIONS

Rule #1: Maintain a Fair Housing-Friendly Office

Fair housing compliance starts with the way you run your office. It's up to you to set the tone—through your training, policies, and procedures—so that your staff and visitors alike understand that your community does not tolerate discrimination against anyone based on race, color, religion, sex, national origin, familial status, disability, or any other characteristic protected under state or local law.

Your office should reflect a professional atmosphere that is welcoming to all prospects, applicants, and residents. It requires an investment in staff training so that all employees—from your leasing consultants to your maintenance and housekeeping staff—understand that they are expected to act courteously and comply with fair housing requirements when interacting with all prospects, applicants, and residents—regardless of their outward appearances.

In addition, you should maintain written policies and procedures for your community operations, a roadmap of sorts to help your staff put fair housing rules into practice. Training your staff to follow the rules consistently and keeping detailed records about interactions with prospects, applicants, residents, and guests will help your community fend off accusations of unfair treatment or discrimination in violation of fair housing law.

Rule #2: Tell Employees to Leave Personal Biases at the Door

Employee training is the key to avoiding fair housing complaints that arise from actual or perceived discrimination by one of your staff members. The risk is inherent in the many ways your staff deals with prospects, applicants, residents, and their guests, so it's essential that employees are trained to keep their personal beliefs, opinions, and judgments at bay when interacting with anyone contacting, visiting, or living at your community.

The fact is that we all have prejudices, though we are loath to admit it, according to fair housing expert Doug Chasick. It's simply human nature to see someone and immediately start judging them, he says. Though everyone has opinions and makes judgments, Chasick says that getting people to acknowledge them is among the most challenging issues he faces while conducting fair housing training. But, he warns, our job as multifamily housing professionals is to overlook our personal opinions and judgments and to manage our reactions and behavior so that we treat everyone fairly. And that's a Herculean task if we don't acknowledge that we have such personal opinions and judgments, because, he says, what we don't acknowledge, we can't control.

Consequently, Chasick recommends tackling this issue as part of your fair housing training by encouraging employees to privately take stock of themselves so they can be prepared to interact fairly and professionally with everyone. During his full-day training sessions, Chasick conducts an exercise to jumpstart the process by asking for volunteers to share their own experiences as the object of discrimination, followed by an open discussion. At the end of the day, he gives attendees some homework: to sit down and take a personal inventory of their own personal beliefs and judgments. It's not about what they are, he says; it's about acknowledging them to enable employees to manage their own behavior—instead of the other way around.

Attorney Robin Hein agrees that it's mandatory for employees to overcome personal biases in the business setting; otherwise, they may make mistakes that could lead to a fair housing complaint. He's handled cases where that has happened—particularly in initial encounters between leasing consultants and prospects who know very little about each other at that point. When personal biases lead consultants to make quick, subjective judgments, it could affect their tone of voice or demeanor, triggering the perception of discrimination. Even worse, Hein warns that it could lead to conduct—such as discouraging a prospect from filling out an application or suggesting that your community is not right for him—that could be viewed as a discriminatory housing denial or steering in violation of fair housing law.

Rule #3: Don't Judge Prospects Based on How They Look or Speak

Appearances can be deceiving, as the saying goes, because snap judgments based on how a prospect looks, dresses, speaks, or acts could turn out to be wrong. For example, you must warn employees not to assume a prospect has financial limitations simply because of how he's dressed or what car he drives. The prospect who has a hole in his jeans or drives an old car could have a six-figure salary, but a consultant may not offer to show him the penthouse or other high-end units based on his mistaken beliefs about the prospect's financial circumstances.

Though economic status isn't a protected characteristic under fair housing law, Chasick warns that allowing employees to rely on their own subjective judgments in how they treat prospects lays the foundation for potential problems. They could get the idea that it's okay to skip the fitness center when taking a prospect in a wheelchair on a tour based on assumptions about the prospect's physical capabilities, or keep families with children away from units near the lake or upper floors based on personal judgments about the parents' ability to safeguard their children. In both cases, such conduct could lead to a fair housing complaint.

Instead, it's critical to emphasize that it's mandatory for all employees to treat all prospects with courtesy and respect, regardless of how they look, what they wear, how they talk, or what car they drive. Unless they do, sooner or later, they are likely to trigger a fair housing complaint by a prospect who believes he was treated differently because he is a member of a particular protected class.

Rule #4: Warn Against Making Stray Comments

Remind employees about the dangers of making random comments or sharing their personal opinions and beliefs while on the job.

Let's face it, employees—like everyone else—sometimes say things they shouldn't. Unconsciously discriminatory remarks could be, as Chasick puts it, random utterances of stupidity, such as making a seemingly harmless comment about how a prospect looks or what she is wearing.

A potentially discriminatory remark could also happen when an employee is caught off-guard by answering a prospect's inappropriate question—say, about the types of people who live in the community—while conducting a tour. It's easy to fall into the trap of answering questions like these if the prospect is asking about people who, like themselves, are members of a particular ethnic group. But, as Chasick warns, it's illegal to answer questions about the ethnic makeup of the community—even if it comes from a person from that group.

Or worse, a leasing agent may assume that a prospect shares his personal beliefs and tell an offensive joke or give a biased opinion about a particular ethnic group or other protected class. But the prospect could be a tester, who is recording the comments as part of a fair housing investigation.

Although they range from the innocuous to downright discriminatory, any of these comments could cause fair housing problems. At the very least, the leasing agent is acting in a way that may be perceived to be discriminatory. And even if the comments themselves do not amount to a fair housing violation, they could be used as evidence of discriminatory intent if a fair housing complaint is filed against your community.

Rule #5: Maintain Written Policies and Procedures

To prevent first impressions from leading to discriminatory conduct, your community should have written policies and procedures that put all prospects and residents on the same footing and help protect against liability if your community is accused of violating fair housing law.

In your leasing office, written policies and procedures will help ensure that every prospect visiting your leasing office is treated the same way. Fair housing experts say it's a good idea to create a script and require leasing consultants to follow it so that the process becomes automatic.

For example, the leasing consultant should offer every prospect—no matter how she looks or sounds—a rental application and invite her to fill it out. Then, the leasing consultant should explain that the application will be evaluated based on your community's screening criteria—such as credit history, rental history, criminal background, and employment or the ability to pay the rent—and if she qualifies, the applicant may live in the community as long as she follows the lease and the community rules.

Rule #6: Avoid Pitfalls When Showing Apartments

It's particularly important to have written policies and procedures about when and under what conditions leasing agents will show units to potential residents.

Sometimes, first impressions may lead a leasing consultant to believe a prospect is dangerous. Safety experts emphasize the importance of relying on gut instincts to avoid dangerous situations, so the leasing consultant may be fearful about being alone with the prospect during a showing. Nevertheless, fair housing law generally requires communities to apply policies consistently, so the prospect could file a fair housing complaint, claiming that he was denied a showing based on a protected characteristic.

Each community is free to formulate its own policies on showing units, so balancing safety concerns with fair housing compliance is a matter of risk tolerance, says fair housing expert Nadeen Green. Some communities alleviate any fair housing concerns by requiring leasing consultants to show units to everyone, regardless of their safety concerns. Others stress the importance of protecting employee safety over potential fair housing problems—for example, by not having leasing consultants be in empty units with prospects or by allowing leasing consultants to exercise discretion—as long as they don't abuse the privilege.

If your community is willing to risk a fair housing complaint by denying a showing to “scary” prospects, then your policy should include reporting and documentation requirements, says Green. Leasing consultants should be required to report any time a showing doesn't happen and to write up a summary with a detailed explanation of the reasons for the decision and how it was handled. For example, the leasing consultant should explain that she was concerned about her safety because the prospect showed up just before the office was closing and repeatedly asked whether they would be alone during the showing. Consequently, the leasing consultant told the prospect that she forgot about a prior engagement and asked the prospect to come back tomorrow.

In theory, denying a prospect a showing under these circumstances should be a rare event, says Green, so the reporting and documentation could alert you to a problem involving a particular leasing agent. If she becomes frightened too easily, it could indicate that she is in the wrong profession. Or, if all the incidents involved the same type of people, it could show that the leasing consultant's personal biases are interfering with her work—and raising the risk of a fair housing claim if they are members of a protected class.

Furthermore, the documentation requirement will help your community defend itself if the prospect files a fair housing complaint. Attorney Hein acknowledges that first impressions do count for leasing consultants, who may be in a vulnerable position when showing units. Nevertheless, he observes that first impressions are based on a quick subjective evaluation, and fair housing law requires owners to articulate objective, legitimate business reasons for their actions. The documentation will help you defend against a fair housing complaint by providing evidence that the leasing consultant had a legitimate, nondiscriminatory reason for not conducting the tour at that time and that her actions didn't amount to an outright denial, because she offered the prospect an opportunity to see the unit at another time.

Rule #7: Guard Against Linguistic, Email Profiling

First impressions could also lead to a new concern: accusations of email profiling—that is, discriminating based on the presumed race or national origin of prospects gleaned from their names or affiliations as contained in email addresses.

To put things into perspective, consider the history of fair housing testing. Green explains that initial testing involved physical visits to leasing offices by individuals who posed as prospects to determine whether African Americans and other protected groups were treated differently than white prospects.

The process was both labor intensive and expensive, says Green, so some testing initiatives moved to a less time-consuming and costly approach: telephone inquiries to determine whether testers who sounded like they were African American were treated differently than those who sounded like they were white. Green points to research suggesting that people are able to correctly identify with about an 80 percent accuracy the race of a person from hearing them count from one to 20. Eventually, telephone tests were expanded to check for discrimination based on linguistic profiling against Hispanics and other protected groups.

With expanded use of social networks and Web sites by the rental housing industry, Green predicts that testing initiatives will target these new forms of communication. In various ways, communities now allow prospects to contact them via the Internet, either by email or by filling out guest cards online.

Green says that the information gleaned from those sources may give clues as to the race or national origin of the prospects, making it ripe for fair housing testing initiatives to check for housing discrimination. She points to studies on employment discrimination that show that the response rates to resumes of applicants with similar credentials were much lower when their names suggested that they were African American when compared to those with names that suggested they were white.

Although the studies have not been replicated to check for housing discrimination, Green says that the industry should brace for similar testing initiatives since it's so much more efficient and inexpensive than other forms of testing. Many communities suffer from delays in their response time to online inquiries, but she warns that fair housing advocates may suspect discrimination based on race or national origin if responses to prospects whose names suggest that they are African American or Hispanic lag behind those whose names suggest that they are white.

Rule #8: Get to Know State and Local Laws

Although federal fair housing law does not ban discrimination based on personal appearance, there are a handful of jurisdictions—including the District of Columbia and a number of municipal and county governments—that specifically include “personal appearance” in their lists of protected characteristics.

And in California, there is a civil rights law applicable to all businesses, including those engaged in the rental of housing accommodations, that specifically bans discrimination on the basis of race, color, religion, sex, national origin, ancestry, or disability. In addition to those specified characteristics, the law has been interpreted by the courts to ban arbitrary discrimination based on personal traits similar to those listed—including physical appearance—that are not related to the responsibilities of a tenant.

Meanwhile, many communities are subject to state and local laws banning discrimination based on gender identity or expression as well as sexual orientation. The wording of the laws varies, but in New York, for example, gender expression refers to external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, speech patterns, and social interactions, according to the New York City Human Rights Commission. In general, communities could be liable under laws protecting gender identity or expression if they discriminate against a man whose appearance, behavior, or expression seems feminine—and against a woman whose appearance, behavior, or expression appears to be masculine.

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.

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood and Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.

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