Fair Housing Defense : Fair Housing Lawyer & Attorney : Fox Rothschild Law Firm : Federal Fair Housing Act (FHA), Discrimination Complaints

This blog has been up and running for a few months now. To be honest, I did not know what to expect. Would anyone (in addition to my Mom – by the way, Hi Mom!) actually want to read it? Would anyone think issues related to housing discrimination and compliance with the Fair Housing Act are worth learning about?

Well, the verdict is in. And I have to say I am gratified. On a regular basis I receive correspondence and/or messages for individuals with questions related to fair housing and housing discrimination. I am very pleased and will continue to post issues of interest related to fair housing on this blog.

That being said, I do need to make clear that I represent apartment owners and professional apartment management companies. In other words, I do not represent residents, applicants, and former residents who believe they have been discriminated against. It is not because of a true legal conflict of interest (which would be the case if I took a case against one of my clients), but because I want my clients to know that I will not take the opposing side of an issue in my next case. 

I trust you will understand. And I very much appreciate you checking in on this blog.

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We’ve talked a bit on this blog about the different classes that are protected under the Fair Housing Act ( "FHA") --  including race, national origin, sex, color, disability and familial status. Today, the Justice Department’s Civil Rights Division, along with the U.S. Attorney’s Office for the Southern District of Alabama and HUD made a joint announcement underscoring the consequences that arise when a property owner appears to discriminate against actual and prospective tenants on the basis of their familial status, and specifically based on whether those tenants have children. The government entered into a settlement agreement and the court issued a consent decree with the owners and managers of Pina’s Mobile Home Park to settle charges of discrimination against families with children. In settling the action, the defendants agreed to pay up to $104,130 to the victims of their discriminatory tactics, along with a $30,000 civil penalty to be paid to the federal government.

The lawsuit arose when HUD filed a charge on behalf of a prospective tenant who attempted to rent a home at the mobile home park, and was denied because the applicant was told she had too many children to live in the park. During the owner’s initial meeting with the Complainant, the owner allegedly indicated that there were vacancies in the park, but that families with children under the age of 18 were required to pay an additional $15 per month. Once the child reached 18 years of age, that fee would increase to $30 per month. In a second meeting, the owner of the park allegedly told the Complainant that the property’s rules only permitted families with two or fewer children to reside in the mobile homes. The Complainant, however, had three children. 

During HUD’s investigation, the owner stated that the park refused families with more children because “[i]f you have too many children, you have too many problems.”

As we’ve stated before: as a property owner, you cannot discriminate against any of the classes protected by the FHA and its state counterparts. Although you may have legitimate concerns that a large number of children concentrated in one unit of your property may cause “too may problems,” such as elevated noise levels, potential property damage, and an increased number of general liability issues, as a landlord, you cannot turn away a family based on their number of children if it meets the occupancy standards.

Furthermore, you cannot charge families with children additional rental fees to offset the additional repair costs that you fear may arise.  What you can and should do is determine what the applicable laws are concerning occupancy standards where your property located and ensure management follows that law.  

Just A Thought.

Article by Christian Moffitt.

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When dealing with occupancy standards, it used to be easy. The traditional rule of “two heartbeats per bedroom” was perceived as the way to go. HUD published what was referred to as the Keating Memorandum back in the early 1990s which detailed this standard and it was considered generally reasonable.  Over the years, I successfully defended any number of cases based on the Keating Memorandum and the two person per bedroom guideline.  Many professional apartment management companies, including those I represent, adopted that standard. But that is not, of course, the end of the story.

Occupancy standards are useful because management has an absolute right to set reasonable, non-discriminatory limits as to how many people can live in a specific apartment. Yet management must be careful so as to not discriminate against a family with children. Those rational goals sometimes conflict.

Issues come up when a tenant gets pregnant and a family increases in size. Is it appropriate to ask a family to move to a larger unit? When is it appropriate to ask the family to move? What if the family cannot afford a larger unit? What if there are no larger units available? What if a family has twins? What should you ask an applicant about a pregnancy?

To be sure, the Keating Memorandum also made clear that there could be other factors which might change the analysis. Factors such as the size of the bedroom and the age of any children living in an apartment need to be taken into account. For example, if two bedrooms are large and/or if there is a spacious living area or study, a two person per bedroom standard might be unreasonably restrictive.

Additionally, some states (like California) and even cities (like Austin, Texas) have amended their laws such that in essence “two plus one per bedroom” is the new standard.

What should management do? First, check the law in your jurisdiction. If you don’t know where to find the standard, ask a lawyer. Then examine the size and configuration of your apartment units and develop a reasonable occupancy policy that does not unfairly discriminate against families with children. Again, if your bedrooms are large or there is additional living space, you may consider adding more than just two heartbeats per bedroom. 

Always be consistent in applying your occupancy standards. Management cannot make exceptions.

You cannot ask an applicant (or a current resident) about how many children they plan on having. You can certainly ask how many people will be living in the unit. When you ask, I recommend phrasing the question in terms of “people” as opposed to “children” so there will be less confusion about management’s intent. In my view, occupancy standards which limit the number of children per unit will be view more harshly than a standard which only refers to people living in a unit.

Management cannot discriminate against families with children. I have seen many discrimination cases based on familial status. They are never fun to defend against because any number of very cute children are involved. Setting reasonable standards – and informing applicants and residents of those standards – can help ensure that such a case never gets filed. 

Just A Thought.

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I have been defending housing discrimination cases for over ten years. I have a docket of cases stretching from Alaska to Florida and just about everywhere in between. My cases get investigated by the U.S. Department of Housing and Urban Development ("HUD") in addition to many state, city, and county agencies.

The goal of this blog is to provide a forum for issues of interest to apartment owners and management companies as well as professional management employees. I also hope we can share available resources.

If you are in the apartment ownership or management arena, you are committed to following the federal Fair Housing Act ("FHA") as well as the many state and local laws which prohibit discrimination in housing. Noting that you do not discriminate on the basis of race, color, sex, disability, national origin or familial status is only a good start.

On its face, the law seems simple enough: don’t discriminate. All applicants and residents should be treated equally and with respect. But, each situation is fact intensive and requires an individualized review of the circumstances. Plus, not every jurisdiction is the same:

• what about those which add source of income as a protected class?
• Should you accept vouchers?
• Do you know the difference between a reasonable accommodation and a reasonable modification?
• Who pays for a reasonable modification?
• Does a request for a reasonable accommodation have to be related to the claimed disability?
• What is Section 504 of the Rehabilitation Act of 1973 and why are two agencies investigating the same complaint?
• Can I have occupancy standards for my apartments?
• How can you confirm that a complaint has been filed by a disgruntled resident seeking to prevent an eviction?
• What do you do when the investigator asks you to halt eviction proceedings in an effort to settle the case?
• How do you handle an investigator who wants to interview all of your employees? Or review all your files?
• What about when the investigator who wants to knock on the doors of your residents?
• Should you still evict a resident even after he has filed a fair housing complaint?
• Should you place an advertisement in a church flyer?

Those are just some of the issues I hope to explore. I will do my best to give some insight based on my experience and offer solutions.

There will be no lectures here, but I will try to leave you with --

Just A Thought.

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No one in the professional apartment management business supports housing discrimination. We support the federal Fair Housing Act (“FHA”) as well as the many similar state statutes and regulations. We train our employees to both follow the letter and spirit of the law.

We are in the business of leasing quality apartment homes to all applicants who meet the non-discriminatory resident selection criteria for a particular property. In addition to being against the law, our management teams are evaluated and compensated (at least in part) on obtaining the highest possible occupancy percentage they can. In other words, in addition to being against the law, discriminating against otherwise qualified applicants would cost property management staff money. Nevertheless, the U.S. Department of Housing and Urban Development’s (HUD) staff (as well as the staffs at various state, county, and city agencies) monitor our work and investigate allegations of discrimination.

To illustrate, in fiscal year 2008, there were 470 HUD employees in regional and field offices as well as 113 employees in HUD’s headquarters. As such, HUD’s fair housing staff last year was just under 600 employees.

HUD’s fair housing budget for salaries and expenses last year was just under $67 million dollars. Additionally, HUD's Fair Housing Assistance Program (FHAP) – which is a made up of state and local government agencies tasked to investigate allegations of housing discrimination – grants totaled over $25 million in fiscal 2008. The budget for HUD’s Fair Housing Initiatives Program (FHIP) – which was created to increase compliance with the FHA through the use of private enforcement and educational activities – was another $24 million last year. 

In short, HUD spent over $116 million investigating housing discrimination last year. HUD’s budget for its Office of Fair Housing and Equal Opportunity has generally increased over the years. I see no change in 2009 going forward. 

We need to follow the law and get it right when dealing with our residents and applicants. If we don’t, then the knock on the door will be a fair housing investigator. And then you may really need to call me. 

Just A Thought.

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                        What happens if management posts an on line advertisement for housing with a website provider if the content of that advertisement possibly contains a discriminatory preference or a limitation based on a protected class? Two recent cases provide important guidance.

                        In Chicago Lawyers Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7^th Cir. 2008) the court issued a decision impacting how the Communications Decency Act (“CDA”) interacts with the Fair Housing Act (“FHA”). Specifically, can a website operator be held liable for a FHA violation because of allegedly discriminatory statements in an online advertisement for housing? In this case, the appellate panel concluded that the CDA protects website operators and was not subject to the FHA since it did not post the statements or cause them to be posted. 

                        On facts with a slight – but significant – difference, in Fair Housing Council of San Fernando Valley, Inc. v. Roommates.com, LLC, 521 F.3d 1157 (9^th Cir. 2008) (en banc), the court held that Roommates.com violated the FHA by contributing to the creation or development of discriminatory statements and advertisements on its web site. While the Ninth Circuit agreed with the Seventh Circuit that websites are protected from FHA liability based on advertising content provided by others, because Roommates.com required advertisers to fill in a questionnaire stating their preferences and by directing them to other advertisers whose preferences matched their own, the court held that Roommates.com was not entitled to immunity under the CDA and would be subject to FHA liability.

                        As is always the case in these circumstances, when you use any online advertisement for housing: follow the anti-discrimination provisions in the FHA so you will not need to have an appellate court review your ad.

Just A Thought.

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According to the U.S. Department of Housing and Urban Development’s (“HUD’s”) annual report, 10,552 fair housing discrimination complaints were filed in fiscal year 2008. That is an all time record. Some other notes from HUD’s report include:

• Allegations based on disability remain the most common basis for a complaint – in fiscal 2008, 4,675 disability complaints (or 44 percent of the total) were filed. 
• Allegations based on race were the second most frequent basis for a complaint – 3,669 race complaints (or 35 percent of the total) were filed.  
• Interestingly, the approximate percentage of complaints filed under each of the seven characteristics protected under federal fair housing law has remained relatively stable during the past four fiscal years.
• After disability and race, familial status (1,690 complaints or 16 percent of the total) and national origin (1,364 complaints or 13 percent of the total) were the most common bases of complaints. 
• Retaliation, religion, and color were the least common bases of complaints filed with fair housing agencies in the past four fiscal years. In fiscal 2008, retaliation was cited as a basis for 575 complaints (or 5 percent of the total). Religion was alleged as a basis for 339 complaints (or 3 percent of the total). Color was cited as a basis for 262 complaints (or 2 percent of the total).
• Also, the number of complaints based on “failure to make a reasonable accommodation” jumped 5 percent during the last four years. In fiscal 2008, “failure to make a reasonable accommodation” was alleged in 2,401 complaints, or 23 percent of the overall total—the third most common issue.

These figures continue to show us that management must remain vigilant. We must always train our employees to know and follow the law. We must appropriately document our resident and community files. I see no meaningful reduction in the number of fair housing complaints in 2009. Significantly, always remember that while management is alleged to have done something wrong when a complaint gets filed, it is up to us to prove our innocence in these cases. Doing so requires good education and documentation. One last point: while the number of retaliation cases is not statistically large, agencies and investigators always take retaliation cases seriously and we must clearly demonstrate that management did not retaliate against anyone because he or she filed a fair housing complaint.

Just A Thought.

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The Fair Housing Act (as well as various state and local anti discrimination laws) sets some limits with respect to what management can and cannot do in the applicant selection process. As you evaluate applications, always be cognizant of what you can – and importantly what you cannot say. Prepare a resident selection criteria. And follow it. With every prospect and applicant.

It is absolutely appropriate to run a criminal background check and to set reasonable standards for what types of prior offense record will disqualify an applicant from your community. While HUD’s guidelines suggest management only look back five years for certain offenses, the regulations make clear that management has discretion to look farther back in time. Also, be aware that certain jurisdictions also limit how far back management can look. It is imperative, however, to run the same background check on each applicant and to score each applicant in the same manner. Many management companies contract with a third party vendor to perform this service. It is obviously never appropriate to only run background checks on applicants believed to be of certain races or national origins.

Similarly, you can and should check an applicant’s income, credit, and references. As with criminal background screenings, be consistent. Run the same check on every applicant. While it is not a protected class under the Fair Housing Act, an ever growing number of states and localities have included source of income as a protected class. That means you cannot discriminate against an applicant if he or she has a housing voucher. In such a jurisdiction, management should factor in the voucher and adjust the scoring criteria. Other protected classes in certain jurisdictions are marital status and sexual orientation. As such, knowing the laws in your jurisdiction can help reduce the chance of a housing discrimination complaint.

Rental decisions need to be made on legitimate, non-discriminatory criteria. The decision to rent an apartment, in part, reflects an assessment of risk. Management should engage in an “interactive process” with applicants in an effort to ensure everyone is treated appropriately.

All members of the leasing office staff must be trained in fair housing. Additionally, it is also important to ensure your maintenance staff is trained as well as service professionals regularly interact with residents. Importantly, the owner and/or management company can be held liable for discriminatory conduct done by employees.

It may seem self evident, but it is crucial to be consistent when dealing with applicants and residents. For example, if management arbitrarily sets higher standards when renting to members of a racial minority – the door is open for a lawsuit. Similarly, if you give one person a break (such as lowering the security deposit for a single mother but not other residents), you will unnecessarily risk a charge of discrimination from other applicants or residents.

Just A Thought.

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I have been defending housing discrimination cases for over ten years. I have a docket of cases stretching from Alaska to Florida and just about everywhere in between. My cases get investigated by the U.S. Department of Housing and Urban Development ("HUD") in addition to many state, city, and county agencies.

The goal of this blog is to provide a forum for issues of interest to apartment owners and management companies as well as professional management employees. I also hope we can share available resources.

If you are in the apartment ownership or management arena, you are committed to following the federal Fair Housing Act ("FHA") as well as the many state and local laws which prohibit discrimination in housing. Noting that you do not discriminate on the basis of race, color, sex, disability, national origin or familial status is only a good start.

On its face, the law seems simple enough: don’t discriminate. All applicants and residents should be treated equally and with respect. But, each situation is fact intensive and requires an individualized review of the circumstances. Plus, not every jurisdiction is the same:

• what about those which add source of income as a protected class?
• Should you accept vouchers?
• Do you know the difference between a reasonable accommodation and a reasonable modification?
• Who pays for a reasonable modification?
• Does a request for a reasonable accommodation have to be related to the claimed disability?
• What is Section 504 of the Rehabilitation Act of 1973 and why are two agencies investigating the same complaint?
• Can I have occupancy standards for my apartments?
• How can you confirm that a complaint has been filed by a disgruntled resident seeking to prevent an eviction?
• What do you do when the investigator asks you to halt eviction proceedings in an effort to settle the case?
• How do you handle an investigator who wants to interview all of your employees? Or review all your files?
• What about when the investigator who wants to knock on the doors of your residents?
• Should you still evict a resident even after he has filed a fair housing complaint?
• Should you place an advertisement in a church flyer?

Those are just some of the issues I hope to explore. I will do my best to give some insight based on my experience and offer solutions.

There will be no lectures here, but I will try to leave you with --

Just A Thought.

Welcome.

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