Discrimination on the basis of sex was added as a protected class to our federal Fair Housing Act (FHA) in 1974 and is settled law. But, is discrimination against lesbian, gay, bisexual, and/or transgender (LGBT) individuals covered under the FHA?  Should it be?  While LGBT persons are not specifically identified in the text of the statute, that does not end the inquiry.  HUD promulgated regulations which provide that discrimination against LGBT persons in HUD housing (or in home mortgages insured by the FHA) is a violation of the law.  Additionally, the regulation similarly prohibits inquiries about sexual orientation and/or gender identity.  And remember, even though the phrase “disparate impact” was not specifically written in the law, by a vote of 5-4, the U.S. Supreme Court concluded that disparate impact claims are indeed cognizable under the FHA.

And even if you could convince a judge that LGBT persons are not covered under the federal statute, remember to always check your state, city, or county codes as many local laws include protections for additional classes of individuals.

So, should management discriminate against LGBT individuals as they are not protected under a strict reading of the law? No.  In today’s climate, that would be characterized as unnecessarily hazardous activity.  HUD and various fair housing tester entities are looking to bring the right case.  You (and/or your company) could be that test case.  And then you would really need to speak with a lawyer like me.

Just A Thought.

The Department of Justice (DOJ) filed a recent familial status Fair Housing Act (FHA) case in U.S. District Court in Minnesota, asserting that the owner and manager of a small apartment community treated families with children “less favorably” than adults with respect to the use of various common areas. The complaint also claimed that management “printed and published” discriminatory statements which indicated an intent to limit access by children to the entire property.

According to the government, the apartment lease provided that there could be no children outside the building and that kids are not permitted to be in the hallways or yard (unless they are arriving at or leaving the property). Violations of the policy would result in a $50 fine.  And, according to DOJ, management attempted to fine one set of parents when their child was found in the hallways of the building and threatened legal action if the fine was not paid.

Now, I always know there are two sides to every story. I am not making any determination as to the circumstances in this new matter.  But, as you develop your resident lease and related community documents, I would strongly advise against a rule fining parents $50 if kids are “caught” outside the building playing or in the hallways.  While I don’t know the facts here, it is certainly possible that management thought there was a safety concern with children outside.  Indeed, one of my clients ran into a similar situation a few years ago when they wanted to prevent (as much as possible) kids from running in the parking lot, which was adjacent to a busy street, in what was believed to be a good faith effort to prevent an injury.  Although they welcomed families with children to the property, a local fair housing tester group took the position that we were attempting to restrict families with children from the property.  While we were successful in finding an amicable solution, it diverted resources having to spend quality time (and money) with me.

Sure, this is an extreme example. But the point here is to evaluate your community documents to ensure as best you can that nobody can make an assertion your property is treating families with children less favorably than adults.

Just A Thought.

Three clients have recently sent me multiple emotional support animal medical verifications for review. After a few minutes of research, it seemed pretty clear that the medical verifications came from individuals who “sell” emotional support animal verifications or service animal registrations with just a few clicks of a computer mouse (and a credit card).  Coincidently, two of the verifications (from different properties) came from the same on-line vendor.

As I have previously written in this space, leasing office staff members will review (and likely approve) any emotional support animal request which we believe to be legitimate.

The problem is, unfortunately, that the internet is full of these animal medical verifications for sale. I tread very lightly when seeking supplemental emotional support animal verification information.  Let me make clear that my clients and I are not attempting to cast doubt on any disability.  I simply want legitimate confirmation that the resident has a disability, a need for the accommodation, and that there is a nexus (link) between the disability and the accommodation.  Again, I am absolutely not seeking prohibited medical information or medical records.

Here is the question:  is reaching out to someone over the internet and obtaining a verification (for the low, low price of $69.99 or $125 if you need your letter in a rush) legitimate?  In many cases, I think not.  Were medical records reviewed?  Was the patient even interviewed?  Or did the applicant simply fill out an on-line form (and give his or her credit card).

Proceeding down this path has certainly led to some angry letters from residents, accusing us of violating the law. As a lawyer for various management companies, we receive service and companion animal requests each and every week.  We remain concerned when anyone can just turn on a computer, make a self-diagnosis, pay a fee, and then get an animal verified when there does not appear to have been any type of real medical or health care evaluation.  Let’s be honest:  some people just want to avoid paying a pet fee or pet rent.  And they get Rover verified and/or Fluffy certified over the internet.  Simple as that.

We are going to do our best to curtail abuse of the medical verification process as questionable verifications do a disservice to those disabled Americans who use service and/or companion animals every day. There will be more to come here.  I will report back.

Just A Thought.

Last week the U.S. Department of Justice (DOJ) announced that it had resolved another Fair Housing Act (FHA) case, this time recovering $75,000 to settle a familial status discrimination complaint. The agreement to conclude the case remains pending before a federal district court judge in Colorado, but is expected to be approved.

The complaint asserted that the owners and manager of an apartment community implemented a policy which generally excluded families with children from living in what was referred to as the front building at the property and restricted families to the rear building.

The inquiry began when fair housing testers (individuals who posed as potential renters) visited the property and alleged they were told that families with children were typically placed in the rear building and were precluded from seeing available units in the front building. If true, this is a practice called “steering,” which is unlawful under the FHA.

Under the terms of the proposed settlement, the defendants will pay a total of $75,000. $25,000 which will establish a settlement fund to compensate alleged victims of discrimination, $45,000 in damages to the fair housing testing group as well as a $5,000 civil penalty to the United States.  As is common in cases like this, the defendants are prohibited in engaging in further discrimination against families with children, requires them to adopt a nondiscrimination policy, receive FHA training, and conduct various monitoring/reporting for the next three years.

The takeaway: DOJ and local fair housing groups are looking to bring FHA cases.  Don’t let your property turn into one of the test cases.  Train your employees to follow the law.  Even if you think children are better served by not being on a specific floor or in a designated building for what you may believe is a benign or safety related reason – that is not management’s decision to make.  Make available to every applicant every open unit that he, she, or they qualifies to rent.

Just A Thought.

I don’t post all the feedback sent by the Fair Housing Defense Blog readers. Yes, I review the comments.  Some of the emailers ask good and helpful questions.  Some seek my legal intervention.  Others indicate I don’t know what I am talking (well, writing) about.  Cost of doing business in cyberspace, I guess.  I do, however, want to respond to a handful of recent inquiries:

1. I am a lawyer who represents and counsels ownership, management, and leasing office employees. Many residents (who think they have fair housing claims) ask me to work with them. I can’t.  Not because it is a true legal conflict of interest (unless they want to sue one of my clients), but because I have taken the position to only represent management.  The point is that I want my clients to know that the legal positions I am taking in one case are not going to be reversed in another matter.  What I tell residents is simply:  please try to engage with your leasing office.  If that fails, you can always try a local fair housing advocacy group (there are many).  Finally, you can also reach out to HUD or your state, city, or county fair housing agency/commission.

2.  Yes, I do fair housing training. Fair housing training is an excellent way to attempt to avoid the real need to speak with a lawyer like me – after a discrimination complaint is filed. Service and/or companion animals are the hot fair housing topic in 2016.  It is an issue that is not going to go away.  Right now I am also dealing with delays in responding to reasonable accommodation and reasonable modification requests.

3.  Back in April, HUD issued new guidelines for criminal screening of housing applicants. Again, what HUD issued was guidelines. Not a new law passed by Congress or a judicial opinion.  I do think, however, in light of the HUD guidelines, every apartment management company should take a look and review your criminal screening matrix.  There will be cases filed based on what HUD released.  You don’t want to be the test case.  I am reviewing these screens for a number of clients.  It is usually inexpensive.  Again, my accounting department wants you to be the test court case, but you don’t.

Thanks for reading the Blog. As I work at a big law firm, my firm keeps stats on everything – including how many hits the site gets month.  I am always astounded (and very much appreciate) the steady uptick in the numbers each and every year.

I try not to lecture on any point, but I do end each post with: Just A Thought.

As discussed regularly in this space (and elsewhere), the number of reasonable accommodation and/or reasonable modification requests continues to significantly increase each and every year. As a part of this increase, however, is an increase in the number of requests which, shall we say, appear a bit dubious.  Make no mistake, professional apartment management and leasing offices have no interest in the personal medical history of our residents and applicants.  We welcome disabled residents (and applicants) to our communities and we will engage in the interactive process with you to meet legitimate needs.  We do, however, need to ensure the Fair Housing Act (and similar state, city, and county laws) are followed and applied as evenly as possible across the board.

Two reasonable accommodation requests came across my desk this week. One from California and one from Minnesota.  One was for an emotional support animal (the request was to waive pet rent and pet fees).  The second was a request for an early lease termination (the request was to waive the early termination fees otherwise in the apartment lease).  Both were verified by a physician.  All good, right?  Why did these requests end up on my desk?

Well, upon review of the medical verifications – neither stated that the resident was disabled. The letters provided that the resident would “benefit” from an animal or a different home.  That verification, standing alone, is not sufficient as the whole point of the reasonable accommodation and reasonable modification process is to ensure our residents who are “disabled” (as the word is defined under federal law) enjoy the full benefits of their housing.  Neither resident has a disability that is otherwise obvious.  In such a circumstance, while management could just accept the verification, we are absolutely within our rights to seek supplemental confirmation that the resident is actually disabled.

If a request is legitimate, I suspect each leasing office will get a second verification confirming a disability. Which would be great and we can then approve it.  However, it is also possible that we do not hear from either resident on  these points again.  Who loses here?  Those Americans with legitimate disabilities as now more people are going to question if their housing-related needs are real.

Just A Thought.

Our federal Fair Housing Act (FHA), like many civil rights laws, contains a fee-shifting provision. What that means is the “prevailing party” (legalese for the winner in a case) can petition the court for an award of attorney’s fees and costs expended in obtaining the result from the other (losing) side.  Most of the law involving the recovery of legal fees concerns requests by plaintiffs who believed they were the victims of unlawful discrimination.  But, what about the defendant – the apartment owner or management company who is wrongfully sued for discrimination, but who is ultimately vindicated?  Can management also petition the court to send the unsuccessful plaintiff a bill for its legal fees and costs?

Yes, but the burden is high. As interpreted by the federal courts across the country, a prevailing defendant (in our case an apartment owner and/or management company) can be awarded fees if the plaintiff’s case was frivolous, unreasonable, groundless or if the plaintiff continued to litigate after it clearly became so.  A fee award to a prevailing defendant is also appropriate if the plaintiff brought the claim in subjective bad faith.

This means that while fees awarded to defendants are certainly not common, it is an arrow in the defense quiver — and one that can be used particularly when the plaintiff’s case is exceptionally weak and lacks any merit whatsoever.  In my experience, it is not something to raise in each and every case, but one which can help when the facts are right.

Just A Thought.

A Fair Housing Defense Blog reader (thank you very much) sent me a question which I decided to respond to with this blog post.  In our Fair Housing Act (FHA) compliance and litigation world of today (whether dealing with reasonable modification requests, reasonable accommodation requests, or design and construction requirements), we work to ensure that those with a “disability” can enjoy the full benefit of their housing. The text of the FHA,  however, uses the term “handicap” instead of “disability.”  Is there is legal distinction between the two terms in the professional property ownership/management world?  Is there some significance to the different terminology?  Was Congress trying to mean something different?

The answer is: No.  Indeed, while the text of the fair housing law uses the term “handicap,” case law has made clear that both “disability” and “handicap” have the same legal meaning.  See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (in which the U.S. Supreme Court noted that the definition of “disability” in the Americans with Disabilities Act is almost verbatim “from the definition of ‘handicap’ contained in the Fair Housing Amendments Act of 1988”).  As such, every other court to my knowledge which has since addressed the issue (as well as the U.S. Department of Justice and the U.S. Department of Housing and Urban Development) have all reached the same conclusion.

Why the difference? Most likely because over time the term “disability” has simply become more generally accepted when contrasted with “handicap” over time.  Hope that helps.

Just A Thought.

The kids are out of school. Summer is here.  Many apartment communities around the country have pools and playgrounds.  Which are a great way for adults to cool off and for kids to have fun.  But, what about community rules for pools and playgrounds?  Particularly those pools without lifeguards.  Doesn’t it make sense (and be a management best practice) for our communities to have rules preventing kids from swimming alone as a legitimate safety issue?  Or to prevent kids from playing in or near a parking lot?  Yes, but you need to be careful as to how management writes those rules so as not to get into fair housing trouble.

As I have written many times in this space, familial status (families with children) was added as a protected class to our Fair Housing Act (FHA) in 1988. The immediate result of that change in the law was that (with limited exclusions for certain housing for older persons), the “adults only” apartment communities went away.  And we must be careful in drafting community rules that, even with the best of intentions, appear to discriminate against families with children.

To illustrate, a pool which is promoted as for “adults only” or has swim times only for adults could be found to discriminate against children. Best practice is not to do that.  Similarly, drafting a rule that says “children must be supervised at all times while in the pool” sounds good on the surface, but may not work.  Is it really reasonable for a 17 year old high school swimmer to need adult supervision?  A better practice is to prohibit running or horseplay on the pool deck and requiring supervision at the pool of anyone who cannot swim.  Yes, I know some properties want to have safety rules preventing, for example, kids under age 10 from being at the pool alone.  I absolutely agree with the intent of such a rule and that type of policy can be defended on safety grounds (as opposed to simple convenience of adults), but using ages can invite a potential claim.

Next up, what about a rule preventing kids on that playground from running through the nearby parking lot? Sounds logical.  But a good practice point is not to limit the rule to kids because doing so could implicate discrimination against families with children.  A solution?  Simply prohibit running, skateboarding (and/or horseplay) by anyone through your busy parking lot.  That is a rule that makes good sense, is enforceable, and will not violate the fair housing laws.

Again, rules involving safety are fine. Let’s just try to ensure they cover what you want and comply with the law.  Indeed, you might just want to speak with a lawyer like me in an effort to reduce the risk that your rules (even those with the best of intentions and done for safety reasons) will be subject to unnecessary scrutiny.

Just A Thought.

Continuing its efforts to enforce the Fair Housing Act (FHA), last week the U.S. Department of Justice (DOJ) announced it had settled a disability case for $160,000 that it filed in Ohio asserting that a real estate developer and an architect (along with several companies they controlled) failed to comply with the FHA’s design and construction requirements. Specifically, the DOJ claimed that two neighboring condominium complexes had a variety of features that made them inaccessible to individuals with disabilities.

Pursuant to the settlement agreement (which still must be approved by a federal judge), the defendants will pay $100,000 to current condominium owners at the two communities who choose to make accessibility modifications to their units. The modifications will include:  eliminating steps and excessive slopes in the walkways to the front entrances of their units, widening doorways, removing or lowering thresholds, installing removable cabinets in kitchens and bathrooms to increase maneuvering space as well as relocating toilets, showers, and sinks to provide access.  Additionally, the defendants agreed to pay $10,000 each to two local fair housing community organizations as well as a $40,000 civil penalty to the United States.  The DOJ complaint followed an investigation by the U.S. Department of Housing and Urban Development

While I am certainly aware that there are always two sides to every story, this case is another reminder that those involved with designing and building multi-family housing need to ensure the accessibility provisions of the FHA are reviewed and complied with. Or you may be faced with a situation involving modifications, retrofits, and financial penalties.

Just A Thought.