Year in Review: Highlights from the 2013 Lessons

In this Special Issue, we’re going to wrap up 2013 with a summary of all the lessons covered this year. Keep it handy—it’s a brief refresher on top fair housing concerns and a helpful index to the full lessons, all of which are available to read on—or download from—www.FairHousingCoach.com.

JANUARY

DEADLY FAIR HOUSING SINS, OLD AND NEW, Part I:

Recurring Violations of Fair Housing Rules

Though the deadly sins are historically seven in number, we doubled that number in the first two lessons of 2013 to cover the most costly fair housing sins, old and new. In January, the lesson dealt with the old—that is, recurring violations of long-standing fair housing rules.

Deadly Sin #1: Improperly Handling Reasonable Accommodation Requests. One of the most common fair housing complaints involves requests for reasonable accommodations. Under the Fair Housing Act (FHA), it’s unlawful to refuse to make reasonable accommodations in rules, policies, practices, or services when necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling. Many requests involve difficult challenges, but one way to avoid problems is to apply standard policies and procedures for handling accommodation requests any time that applicants or residents say they need or want something because of a disability.

Deadly Sin #2: Treating Assistance Animals as Pets. Each year, communities find themselves accused of violating the reasonable accommodation rules by applying pet policies to applicants or residents with qualifying assistance animals. Even when the nature of the animal’s services aren’t apparent, the animal could still be considered an assistance animal under fair housing law. Fair housing rules on assistance animals broadly apply to all sorts of animals that provide a variety of disability-related services—including emotional support—with or without specialized training.

Deadly Sin #3: Ignoring Accessibility Problems. Multifamily communities built since 1991 must conform to fair housing design and construction requirements, which include accessible common areas, bathrooms, and kitchens, as well as wider doors and environmental controls that can be reached by persons who use wheelchairs.

Pay attention to any complaints about accessibility problems at your community—it could be your first clue about potential design flaws at the community. Even if an accessibility complaint doesn’t reveal a design flaw, it might be something that you should address as a reasonable accommodation or modification request.

Deadly Sin #4: Race Discrimination. Though disability discrimination claims now take the top spot, complaints involving race discrimination come in a close second. Some involve blatant discrimination, but many others involve accusations that an employee misrepresented the availability of housing to African-American prospects. Provide all employees with adequate training and supervision to prevent potential racial discrimination claims.

Deadly Sin #5: Excluding Families with Children. Under the FHA, it’s unlawful to discriminate based on familial status, unless the community qualifies as senior housing. Be sure you know the rules—you can’t deny housing to families with children under 18 without complying with strict technical requirements to qualify as housing for older persons.

Deadly Sin #6: Imposing Overly Restrictive Rules on Families with Children. Another deadly fair housing sin involving familial status occurs when communities enforce unduly restrictive occupancy policies and other rules that effectively exclude or discriminate against families with children. Don’t steer families with children under 18 away from upper floors or water features because of safety or liability concerns. And don’t apply different terms or conditions by charging higher rent or enforcing rules that unreasonably restrict children’s outside activities.

Deadly Sin #7: Failing to Prevent Sexual Harassment. Sexual harassment is a form of sex discrimination banned under the federal fair housing law, so it’s important to address any complaints quickly and effectively. Once aware of a problem, an owner is more likely to incur liability for sexual harassment by subordinates, outside contractors, or even other residents, if the owner knew or should have known about it and did nothing to stop it.

> Read the full lesson here.

FEBRUARY

DEADLY FAIR HOUSING SINS: OLD AND NEW, Part II:

Emerging Trouble Spots under Fair Housing Law

February’s lesson covered the new deadly fair housing sins—that is, emerging issues and trends that could lead to fair housing trouble. 

Deadly Sin #1: Forgetting that Advertising Rules Apply to New Media. When marketing your community—whether in print or online—it’s important to apply basic fair housing rules banning discriminatory statements. The rules were developed long before the Internet became part of daily life, but HUD has stated that the FHA’s ban on discriminatory advertising applies equally to traditional and online media outlets.

Deadly Sin #2: Linguistic and Email Profiling. Fair housing testers are increasingly on the lookout for unlawful profiling—differences in the way that prospects are treated because of clues about their race, ethnicity, and other characteristics from the way they sound on the phone or the names or email addresses in online communications. Thoroughly train your staff to follow up promptly with anyone who expresses an interest in living at your community, whether by phone, email, or through your Web site.

Deadly Sin #3: Discriminating Based on National Origin. National origin discrimination means treating people differently because of their ancestry, ethnicity, birthplace, culture, or language, according to HUD. And it’s important to remember that immigration status does not affect whether a person is covered under the FHA. For example, HUD says that charging a different price or asking for additional identification documents because of a person’s national origin is illegal, regardless of immigration status.

Deadly Sin #4: Discriminating Based on LGBT Status. Though not currently protected under federal fair housing law, sexual orientation and gender identity are protected under a substantial number of state and local laws. And in some cases, HUD could pursue claims under federal law for discrimination based on sex or disability. For example, HUD said it could pursue a sex discrimination claim on behalf of a female applicant who alleges discrimination by a landlord because she wears clothing or uses mannerisms that are stereotypically male.

Deadly Sin #5: Mishandling Criminal Background Checks. Whatever your policy on criminal background checks, it’s important to apply it consistently to all applicants, regardless of race, national origin, or other protected characteristic. For example, it’s unlawful to use the results of criminal background checks to reject applications from members of protected classes, while overlooking similar results for other applicants.

Deadly Sin #6: Neglecting Fair Housing Considerations in Hoarding Cases. Compulsive hoarding is considered a mental disorder under new guidelines adopted earlier this year. Upon discovery of a hoarding problem, your first impulse may be to order the resident to clean up or move out, but fair housing experts warn that such a response could trigger a disability discrimination complaint. Unless it’s unsafe to do so, it may be necessary to consider a reasonable accommodation request to delay eviction proceedings to give the resident an opportunity to clean the place up.

Deadly Sin #7: Punishing the Victims of Domestic Violence. Only a few state and local laws ban discrimination against domestic violence victims, but HUD has suggested that domestic violence survivors could pursue claims of sex discrimination under federal fair housing law. Since women are overwhelmingly the victims of domestic violence, HUD says, discrimination against domestic violence survivors is almost always discrimination against women. Consequently, domestic violence survivors who are denied housing, evicted, or deprived of assistance based on the violence in their homes may be entitled to protection under the FHA provisions banning sex discrimination, according to HUD.

> Read the full lesson here.

MARCH

HOW TO HANDLE REQUESTS FOR ASSISTANCE ANIMALS

The March lesson reviewed reasonable accommodation requests involving assistance animals, a frequent source of discrimination complaints. It’s a source of confusion, at least in part, because the two major federal laws protecting individuals with disabilities—the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA)—have very different rules on animals. It’s essential to understand that you must comply with the FHA rules, which offer much more leeway than the ADA on the types of assistance animals that must be permitted in conventional multifamily housing communities.

Though communities may generally set their own policies regulating pet ownership, the FHA doesn’t consider assistance animals as pets, but rather as auxiliary aides that provide assistance to individuals with disabilities. Consequently, you must consider a reasonable accommodation request by an individual with a disability for an exception to pet policies to allow him to keep an assistance animal if necessary for him to have an equal opportunity to enjoy his unit and common areas.

Don’t underestimate the types of animals that may qualify as assistance animals under the FHA. Most requests for assistance animals involve dogs, but fair housing experts say that cats, birds, reptiles, and other types of animals could qualify as assistance animals. The FHA allows assistance animals other than dogs that provide assistance or emotional support to individuals with disabilities, with or without formal training.

Waive pet fees and deposits for assistance animals. It’s unlawful to impose conditions on the tenancy because a resident requires a reasonable accommodation, so you can’t require a resident to pay a fee or a security deposit as a condition of allowing him to keep an assistance animal as a reasonable accommodation, according to HUD guidelines.

And don’t be too hasty to deny requests for assistance animals that are restricted breeds. Fair housing experts warn that handling these requests depends on a number of factors, including the community’s insurance policy restrictions. HUD has said that it would consider the request unreasonable if the community’s insurer would cancel or substantially increase the cost of the policy because of the presence of a certain breed of dog or a certain animal. But if a complaint is filed, HUD warned that its investigators will check with the owner’s carrier “and consider whether comparable insurance, without the restriction, is available on the market.”

> Read the full lesson here.

APRIL

THE BIG QUIZ: TEST YOUR KNOWLEDGE OF FAIR HOUSING LAW

In honor of Fair Housing Month, the April issue offered a quiz on fair housing law. With increased federal funding to fair housing organizations—and the launch of HUD’s mobile app to facilitate discrimination complaints—it’s now more important than ever to make sure that all your employees—from leasing agents to maintenance staff—understand the basics of fair housing law. Here’s a sampling of the quiz questions to test your knowledge of fair housing law.

INSTRUCTIONS: Each of the following questions has only one correct answer. On a separate piece of paper, write down the number of each question, followed by the answer you think is correct—for example, (1) b, (2) a, and so on. The correct answers (with explanations) are at the end of the article. Good luck!

QUESTION #1

Fair housing law prohibits communities from denying housing to anyone who is a member of a protected class. True or false?

a.   True.

b.   False.

QUESTION #2

A prospect confides that he doesn’t want to “feel like a minority” in his own home and asks what type of people live in the community. The leasing agent could trigger a fair housing problem if she answers by describing the racial or ethnic makeup of the community’s residents. True or false?

a.   True.

b.   False.

QUESTION #3

There have been rumors about an employee pressuring female residents for “dates” if they have trouble making rent payments. Although no one has complained, the community should investigate whether the employee has engaged in sexual harassment. True or false?

a.   True.

b.   False.

QUESTION #4

Several months after moving into the community, a resident says she’s disabled and requests a specially designated parking space near her unit. The community may deny the request because she didn’t ask for the space when she moved in. True or false?

a.   True.

b.   False.

> Take the full quiz here.

MAY

ADDRESSING FAIR HOUSING CONCERNS INVOLVING MENTAL DISABILITIES

The Coach’s May lesson addressed fair housing concerns when dealing with individuals with mental or emotional disabilities. Under the FHA, it’s unlawful to deny housing—or to impose different terms and conditions of tenancy—because an individual or someone in his household—has a disability. The law defines “disability” as a physical or mental impairment that substantially limits one or more major life activities, so it applies equally to physical and mental impairments.

The law bans discrimination against people with any type of disability, but it’s particularly important to keep a check on any personal or cultural bias against applicants with mental disabilities. Adopting standard policies—and training employees to follow them—will help ensure that decisions about who may live in your community are based on objective standards and applied consistently to all applicants, regardless of disability.

Be prepared to handle reasonable accommodation requests by or on behalf of individuals with mental disabilities. Don’t ignore the request simply because the resident doesn’t appear to be disabled. The FHA’s definition of disability covers a wide variety of physical and mental impairments, many of which are not obvious or apparent. Depending on the circumstances, you may ask for additional information, if necessary to review the request. Although the law generally forbids disability-related inquiries, there’s a limited exception when evaluating accommodation requests if either the individual’s disability or need for a requested accommodation are not known or otherwise apparent.

And if problems involving an individual with a mental disability arise during the tenancy, then consider the ramifications of fair housing law before taking action against him. The law doesn’t protect individuals with disabilities who pose a direct threat to the safety or property of others, but you could face a discrimination complaint unless you first consider whether the incident merits an adverse action (such as eviction) and whether there’s any reasonable accommodation that could satisfy any legitimate safety concerns.

> Read the full lesson here.

JUNE

COMPLYING WITH FAIR HOUSING LAW IN A POST-9/11 WORLD

The June lesson discussed how to comply with fair housing rules in post-9/11 America. Though much has changed since Sept. 11, 2001, this year’s bombings at the Boston Marathon stood out as a reminder that our nation remains vulnerable to terrorist attacks.

The challenge for multifamily housing communities is to continue efforts to safeguard property and residents while ensuring that everyone is treated fairly, regardless of race, color, religion, and national origin. The law prohibits communities from denying housing opportunities to people because they or their family are from another country, because they have a name or accent associated with a national origin group, or because they are married to or associate with people of a certain national origin, according to HUD. Examples of national origin discrimination include:

• Refusing to rent to people whose primary language is other than English;
• Offering different rent rates based on ethnicity;
• Steering prospective renters to or away from certain areas because of their ancestry; and
• Failing to provide the same level of service or housing amenities because a resident was born in another country.

You could be accused of discrimination even if you’ve never seen or met a prospect. Fair housing testers often call and email leasing offices to check for discrimination based on how a prospect sounds over the phone or based on the name used in online communications. If you routinely fail to respond or give false information about the availability of units because the caller has a foreign accent or unusual name, then you could face a discrimination complaint based on race or national origin.

When discussing vacancies with prospects, be guided by their stated requirements—not by your preferences or assumptions about where they would prefer to live in your community. Regardless of your intentions, you could be faced with accusations of unlawful steering if you encourage or discourage prospects from living in your community—or certain parts of the community—because of their race, religion, national origin, or other protected characteristic.

> Read the full lesson here.

JULY

COMPLYING WITH FAIR HOUSING LAWS PROTECTING SOURCE OF INCOME

The July lesson reviewed fair housing laws banning discrimination based on source of income. The FHA doesn’t prohibit discrimination based on source of income, but an increasing number of states and municipalities have added these provisions to their fair housing or civil rights laws in recent years.

If your community is subject to these laws, you can’t exclude or otherwise discriminate against applicants and residents because of where they get their money or financial support. The specifics of the laws vary, but most apply to lawful sources of income such as wages, retirement benefits, child support, and public assistance.

The laws vary in whether they cover housing subsidies, particularly Section 8 housing vouchers. The name has changed to the Housing Choice Voucher program, but many still use “Section 8” to refer to the federal government’s major program for helping very low-income families, the elderly, and disabled individuals afford housing in the private market.

Though federal law makes participation in the Section 8 program voluntary for private communities, fair housing laws in some jurisdictions make it unlawful to turn away individuals who use Section 8 housing vouchers to pay their rent. In Massachusetts, for example, the law bars communities from discriminating against individuals who receive public assistance or rent subsidies, including Section 8 housing vouchers. In Oregon, the law bans discrimination based on source of income, though it specifically excludes federal housing subsidies under the Section 8 housing program.

> Read the full lesson here.

AUGUST

COMPLYING WITH FAIR HOUSING ACCESSIBILITY REQUIREMENTS

The August lesson addressed FHA accessibility requirements in light of the new formal guidance issued by HUD and the Justice Department earlier this year.

Under the FHA, multifamily communities consisting of four or more units intended for first occupancy on or after March 13, 1991, must meet seven design and construction requirements:

     1. An accessible entrance on an accessible route;

     2. Accessible common and public use areas;

     3. Doors sufficiently wide to accommodate wheelchairs;

     4. Accessible routes into and through each dwelling;

     5. Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;

     6. Reinforcements in bathroom walls to allow later installation of grab bars; and

     7. Usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about and use the space.

These requirements apply to all public and common use areas—and to all rental units, if the building has an elevator. In buildings without an elevator, the standards apply only to ground-floor units.

You may not be required to master the law’s technical requirements, but it’s a good idea to understand the basics of the FHA’s design and construction standards if your community was built since March 1991. If your community was built before then, the FHA’s design and construction rules don’t apply, though your community may be subject to other federal, state, or local laws governing accessibility by individuals with disabilities. For example, leasing offices and public areas are subject to accessibility requirements under the ADA, no matter when they were built.

> Read the full lesson here.

SEPTEMBER

LESSONS LEARNED FROM RECENT COURT RULINGS ON FAIR HOUSING LAW

The Coach’s September lesson reviewed recent court rulings on fair housing issues that you may have encountered—whether to allow a resident to sublet, when residents may be required to get rental insurance, how to deal with requests for assistance animals, and when you can enforce occupancy standards. In each case, the Coach explained how the court decided who should win—and, most important, pointed out the lessons learned so that you’ll know what to do—or what not to do—the next time you’re faced with similar circumstances.

In one of the cases, a federal court upheld a $34,000 HUD ruling against an owner accused of discrimination against a prospect after she disclosed that she planned to live there with her autistic brother. The court found sufficient evidence that the owner violated fair housing law by making discriminatory statements, making housing unavailable because of a disability, and imposing discriminatory terms and conditions because of a disability. Among other things, the owner allegedly required the prospect to get a renter’s insurance policy with $1 million in liability coverage as a condition to continue with the application process [Corey v. Secretary, West Virginia, July 2013].

Lesson Learned: Treat prospects and applicants consistently—regardless of disability and any other protected characteristic. Applying more burdensome application procedures or imposing additional requirements because of a disability can lead to fair housing trouble.

> Read the full lesson here.

OCTOBER

WHAT NOT TO DO WHEN DEALING WITH FAMILIES WITH CHILDREN

October’s lesson reviewed fair housing protections based on familial status. It’s common to refer to the rules as protecting families with children, but the ban on discrimination based on “familial status” extends well beyond that to cover applicants and residents based on the presence of a child 18 or under in the household. It also protects pregnant women and those in the process of obtaining legal custody of a child under the age of 18.

In general, the law bans communities from denying housing to families with children. There’s a limited exception to the familial status rules for senior housing communities, but it applies only if the community satisfies all the legal requirements to qualify as “housing for older persons.” Otherwise, it’s unlawful to enforce an “adults-only” policy or to adopt rules to exclude children under age 18.

Fair housing trouble based on familial status could also arise from the way that you advertise vacancies, show apartments, apply occupancy standards, or enforce community rules. For example, fair housing organizations have been monitoring Craigslist and other online media to check for discriminatory advertisements. All too often, they find blatantly discriminatory ads—such as “No kids”—or more subtle language suggesting a preference for singles or against families with children.

> Read the full lesson here.

NOVEMBER

ADDRESSING MEDICAL MARIJUANA USE AT YOUR COMMUNITY

In November’s lesson, the Coach reviewed the ongoing debate over medical marijuana—and how it may affect your community. Although marijuana remains an illegal drug under federal law, there has been a rapid expansion of state laws easing restrictions on marijuana—at least for medical use. At last count, 20 states plus the District of Columbia have adopted measures allowing marijuana to be made available for a variety of medical conditions. And Colorado and Washington have taken it a step further by legalizing marijuana use by adults 21 and older.

In light of these new laws, many are wondering about their fair housing obligations to consider reasonable accommodation requests by individuals with disabilities. Most communities ban illegal activities on the premises, including the use of illegal drugs. But in states that have legalized medical marijuana, the question is: Must communities grant requests for reasonable accommodations to medical marijuana users?

Not as far as HUD is concerned—at least in public and assisted housing. In a 2011 memo to public housing agencies and federally assisted housing providers, HUD has stated that requests to permit use of medical marijuana are not reasonable under the FHA. According to HUD, federal and state nondiscrimination laws don’t require those providers to accommodate requests by current or prospective residents with disabilities to use medical marijuana.

Technically, HUD’s 2011 memo was limited to medical marijuana use in public and federally assisted housing communities. Though HUD hasn’t issued any official guidance for other housing providers, many believe it unlikely that HUD would pursue a federal fair housing claim for a conventional housing community’s refusal to permit the use of medical marijuana.

> Read the full lesson here.

DECEMBER

MAKE EVERYONE FEEL AT HOME DURING THE HOLIDAYS

The December lesson tackled fair housing questions that often come up during the holidays. As communities become more religiously and culturally diverse, residents may celebrate a variety of religious holidays—-or perhaps none at all. But regardless of whether or how they celebrate the holidays, all are protected from religious discrimination under the FHA—and can’t be treated differently because of their beliefs or practices.

At the holidays—and any time of year—it’s important to make all prospects, applicants, and residents feel welcome, regardless of their religious beliefs or practices. And there’s nothing wrong with decorations and festivities to mark the holiday season, as long as they don’t express a preference for—or against—anyone based on religion.

You can’t go wrong with secular messages, such as “Season’s Greetings” or “Happy Holidays,” and seasonal displays featuring lights, evergreens, icicles, and snowflakes. You can even include pictures of Santa Claus and signs that say “Merry Christmas,” which have been recognized by HUD as secularized terms and symbols that do not violate fair housing law.

There’s no official word from HUD on other types of decorations, so it’s sometimes hard to know where to draw the line between secular and religious symbols. In general, fair housing experts warn against putting up nativity scenes and other displays steeped in religious tradition, but opinions are mixed with respect to menorahs and Christmas trees. Some fair housing experts say that communities should avoid using them and any other decorations with religious connotations when decorating common areas. But others say menorahs and Christmas trees have become secularized—like “Merry Christmas” and Santa Claus—so it’s fine for communities to include them among other holiday decorations with other nonreligious, seasonal themes.

> Read the full lesson here.