Earlier this month we noted that a federal court in Colorado ruled that the Fair Housing Act (FHA) prohibits discrimination based on sexual orientation (although sexual orientation is not contained in the text of the statute). In that case, the district court judge concluded that ownership could not deny housing to a resident simply because the resident fails to adhere to gender stereotypes by being attracted to or married to a member of the same sex. As the case then settled, we will not get further review (at least for now) by a United States Court of Appeals as to whether the FHA prohibits sexual orientation discrimination.

So, while we may not get an appellate FHA decision on this point, it is instructive to examine how other appellate courts have ruled in similar cases brought under what is known as Title VII (which covers employment discrimination and is typically treated similarly by the courts as are Title VIII cases [which involve fair housing]). Unsurprisingly, recent trends in Title VII sexual orientation cases demonstrate a rift between the circuit courts.

To illustrate, the Seventh Circuit recently held that Title VII’s protections extend to members of the LGBT community. The case is Hively v. Ivy Tech Community College of Indiana, in which a lesbian alleged that her employer unlawfully discriminated against her because of her sexual orientation by refusing to promote her and by failing to renew her contract. The Seventh Circuit agreed. While it acknowledged that nearly all of the circuit courts, including panels of the Seventh Circuit, previously ruled that Title VII does not prohibit sexual orientation discrimination, the court determined that those rulings were incorrect, especially when viewed in conjunction with the growing number of Supreme Court decisions related to discrimination on the basis of sexual orientation. Noting the growing trend of prohibition against sexual orientation discrimination, the court held that claims arising from discrimination based on sexual orientation are cognizable under Title VII.

However, only one month before Hively, the Eleventh Circuit reached the opposite conclusion in Evans v. Georgia Regional Hospital. In that case, a lesbian employee alleged that her employer unlawfully discriminated against her based on her gender and sexual orientation, because she presented herself in a non-traditional manner by sporting a short hairstyle and wearing a man’s uniform (although she did not otherwise broadcast her sexuality). While the Eleventh Circuit noted that gender nonconformity claims are cognizable under Title VII, it held that precedent bound it to rule that Title VII does not prohibit sexual orientation discrimination. Like the Hively court, the Evans court also noted that nearly every circuit court addressing the issue has explicitly held that sexual orientation discrimination claims are not cognizable under Title VII.

So, what happens next? With a split of opinion between the circuits, there is at least some hope that the Supreme Court may take a case and provide guidance as to the state of the law (at least with regard to Title VII). In the meantime, a best practice for professional apartment management would be to err on the side of caution and avoid discriminating on the basis of sexual orientation or gender identity. As the Seventh Circuit noted, sexual orientation protections have greatly expanded in recent years, and that trend will likely continue to prove true. And, as always, in addition to federal law, you should check the state, city, and/or county laws in your jurisdiction as they may already prohibit sexual orientation discrimination.

Just A Thought.

Article by Christian Moffitt.

Advertising your property is a good way to get apartments filled. But marketing a community can create a handful of fair housing challenges concerning the use of advertising.  First, remember that advertising is covered under the Fair Housing Act (FHA). When you advertise, do it in a way to reach as many demographic groups as possible. For example, when using people, be certain your advertising copy contains individuals of multiple races. Does that mean you cannot show a family of a single race in one shot? Of course not. But it does mean that management will want to avoid the situation of only having one race in all of your advertising photographs. I have no issue with you including shots of individuals, couples, and families.  In short, mix it up.

Particularly if your property is located in an area with a diverse mix of potential applicants, look to advertise (for example, local newspapers or radio stations that reach certain demographic groups) in places that have the chance to reach individuals of different backgrounds who might not see an ad in a traditional news outlet.

Next, I recommend avoiding using religious landmarks (such as churches, mosques, or synagogues) in your ad. Writing that your property is “near Christ the King Church” could be read as favoring one religion over another. If you want to use some type of landmark, try a park, a shopping center, or perhaps a local train/subway line. To be sure, you can absolutely note that the property is conveniently located near public transportation, shopping, and local schools.

If you decide to run a discounted rent special in an effort to drive new residents, remember to offer that incentive to everyone who applies during the time of the promotion. You could well need to speak with a lawyer like me if your leasing office picks and chooses which applicants get offered the promotion.

Finally, put the “Equal Housing Opportunity” logo on your ad. It is easy to find and is a best practice.

Just A Thought.

Back-to-back posts concerning the Fair Housing Act (FHA) and federal courts. Last week, in what I believe is another decision of first impression, a federal district court judge in Colorado concluded that the FHA prohibits discrimination against LGBT individuals. While the FHA prohibits discrimination because of sex (added as a protected class in 1974), familial status (1988), and/or national origin (1968), the statute says nothing about sexual orientation or gender identity and the issue had been in question for some time.

The facts here involved a lesbian couple (one of the women is transgender) with two children who, because of their “unique relationship,” had their application for a rental townhouse denied. They continued to engage with the landlord and were told their family was not welcome to rent because another family was concerned about noise and kids. In a further reply, the landlord allegedly reported that the “status” of the couple “would be the talk of the town” and there would be no opportunity to “keep a low profile.”

The legal question involved in the case was whether “sex” (as written in the FHA) included sexual orientation and gender identity. In answering the question in the affirmative, the Colorado court looked to various employment statutes and cases interpreting those laws and concluded “stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act…and are products of sex stereotyping.”

While this is one judge in one district court, given the trend in the law, this decision should not come as a surprise. The FHA (like the laws against employment discrimination) are intended to be applied broadly and courts will look to fill in the gaps when the statute is silent. Such is the case here.

So, what is the impact for professional apartment management? Not that much. My hope is that in 2017 the vast majority of our management offices with apartments or townhomes to rent are certainly not evaluating sexual orientation when determining if an applicant can rent a home. Nevertheless, if we do, there is now at least one judge who has specifically found that LGBT individuals are covered under the FHA.

Just A Thought.

 

In a case of first impression (at least as far as I can tell), in an opinion issued last week, the U.S. Court of Appeals for the Third Circuit evaluated (and answered) the question of whether a Fair Housing Act (FHA) claim survives the death of a party. The facts involved an emotional support animal request and whether the condominium board had appropriately responded to the request. Before reaching the merits, however, the Court addressed an uncommon (and sad) issue that came up: during the pendency of the case, one of the plaintiff’s (who made the emotional support animal request) died. Leaving the question of if the FHA claim remains? The text of the FHA does not address what should happen in such a circumstance.

The District Court judge answered the question in the negative, reading first a federal “gap-filler” statute and then local law. Upon appellate review, however, the Third Circuit looked to federal common law (a doctrine that is not universally well liked) to fulfill what is referred to as the “overall purpose” of the statute. The appellate court concluded that as the FHA was intended by Congress to have “broad remedial intent,” a fair housing claim should survive the death of a party and can be continued by the decedent’s estate.

I must admit I had not thought about this issue prior to reading this new opinion. Had I been asked the question, I think I would have agreed with the Third Circuit, although I do not blame counsel for the defense for raising the issue.

Just A Thought.

In this era of an ever-increasing number of service and/or emotional support animal requests received by professional apartment leasing offices, three of my clients have faced the same issue recently. Here is a common fact pattern: our resident submits a request for an emotional support animal. That request has a medical verification letter or certificate attesting that Rover or Fluffy is “certified” as an assistance animal. Upon review, however, it seems pretty clear that the medical verification was simply purchased over the internet and did not involve any analysis concerning the disability of the resident nor any nexus (link) between the disability and the animal. Management sends a letter noting carefully that while we will absolutely continue to engage with the resident concerning the accommodation request, based on the materials submitted, we cannot approve the animal. What happens next is typically one of three paths: (a) the resident recognizes he/she does not actually need a service animal and drops the request; (b) the resident goes to a health care professional and gets the appropriate diagnosis and letter; or (c) the resident gets angry (sometimes getting a lawyer involved) and declares the leasing office is violating HIPPA (the health care information privacy law) by seeking detailed medical records. And then I get called.

So there is no misunderstanding on this point, management does not seek medical records for our disabled residents. We are not attempting to obtain confidential health care information. We are, however, attempting to just confirm that the resident is actually disabled, that the request is necessary, and related to the disability. Buying a purported verification letter off a web site from a company or individual who promises to “certify” the animal does not meet the test.  Coincidently, as I was writing this post, another client sent me records that a therapist sent to the leasing office about a resident along with the verification form. We had not, of course, requested the records. They will be returned.

Again, we do not want medical records. I don’t want my clients to violate HIPPA.  But I do want residents to appropriately certify their service or emotional support animal requests when their disability is not obvious.

Just A Thought.

Yesterday the Trump Administration submitted its proposed fiscal year 2018 federal budget to Congress. Although any administration’s budget is but a request (as it is Congress that actually sets federal spending levels), included in the document is a proposed 13% cut in funding for the U.S. Department of Housing & Urban Development (HUD). If enacted as presented, HUD’s budget would decrease from $47 billion (in fiscal 2017) to just under $41 billion (in fiscal 2018). In its proposed budget, the administration asserts that “state and local government are better positioned to serve their communities based on local needs and priorities.”

Specific line item cuts include: the Community Development Block Grant Program, the HOME Investment Partnerships Program, the Choice Neighborhoods Program, and the Self-Help Homeownership Opportunity Program. Housing advocates are already arguing that reductions of this magnitude will put a significant strain on the nation’s housing authorities and others who rely on federal funding for their housing.

I have not seen specific cuts directed at fair housing enforcement or fair housing priorities, but we are still early in the process.  So, does this mean management can stop complying with the Fair Housing Act (FHA)? No. Even if the government is less active, it is a fair bet that local housing advocacy groups (who are typically funded, at least in part, with HUD money) will continue to file cases in an effort to take up the slack and demonstrate the need for continued fair housing needs.

Just A Thought.

 

Earlier this week, the Department of Justice (DOJ) filed a lawsuit in federal district court alleging that the owners and managers of three apartment buildings in Washington state violated the Fair Housing Act (FHA) by refusing to rent their units to families with children. The DOJ asserts that in March 2014, one of the apartment managers told a family (which included a one year old child) that the units were “adult only” and not available to rent. The complaint further states that throughout 2014 the defendants advertised their apartments as being available only to adults. The family initially filed an administrative complaint with the Department of Housing & Urban Development (HUD). HUD found that the complaint had merit and referred the case to DOJ.

While I express no opinion as to the facts of the case and remain mindful that there are always two sides to every story, professional apartment owners/managers must be certain not to advertise apartments as “adults only” unless your property is designed as housing for those over age 55 or age 62 (which require that they meet certain conditions). In addition to advertising issues, we need to train our leasing office employees to make certain no applicant feels as if his or her family is somehow not welcome. Indeed, many times management may feel that for safety or other legitimate reasons (such as multiple flights of stairs) it would be better for a young child to not live in a certain unit or specific area of an apartment community. Remember, however, that is not management’s choice to make. Offer all available apartments that the applicants qualify for and let the parent make the choice. To be sure, an applicant could also be a fair housing tester attempting to catch a leasing office staff member violating the law with an allegation of discrimination as in this case or that we are improperly “steering” applicants to parts of the community perceived as less desirable.

Just A Thought.

Earlier today, the U.S. Senate confirmed Dr. Ben Carson as our next Secretary of the Department of Housing & Urban Development (HUD). The vote (58-41) was mostly along party lines. Frankly, given how well his confirmation hearing went, I am a bit surprised the vote was as close as it was and that it took until the first week in March to clear the nomination. Nevertheless, we now have a new leader at HUD. From my seat as management’s lawyer, we will now at least begin to learn about Carson’s initiatives and how he plans to direct HUD to enforce the Fair Housing Act (FHA). During his confirmation hearing, Dr. Carson stated he would continue to aggressively enforce the law, although he acknowledged little or no experience in the housing arena.

Now confirmed by the Senate, Carson said he would take a “listening tour” to hear from career HUD officials and others involved in housing to help learn about concerns and how best to use HUD’s $49 billion dollar budget for 2017.

My initial prediction: a Carson led HUD will continue to investigate and file housing discrimination cases based on the seven protected classes in the FHA as have previous administrations (both Republican and Democratic). But I would not be surprised to see some of HUD’s other recent initiatives (such as rules designed to “affirmatively further fair housing” and/or rules concerning LGBT individuals) to get additional scrutiny.  I would also guess that HUD will look to expand partnerships with the private sector and various religious groups in an effort to transition individuals out of public housing.

Just A Thought.

A Fair Housing Defense reader sent in a question about emotional support animal medical verifications that I want to address. Because our industry has seen such an increase in the number of service and/or emotional support animal reasonable accommodation requests, my reader wanted to know if one way to curb potential abuse of the medical verification process might be to require health care providers to have the verification notarized.

As a lawyer for the management company/apartment owner, I am all for coming up with any solution which could help ensure that service and emotional support animals are appropriately permitted for our residents with a legitimate disability while finding a way to reject reasonable accommodation requests that come from residents who are not disabled and who simply wish to avoid pet rent or pet fees. As I have written in this space before, many of my clients are now pushing back against medical verifications that are purchased over the internet with a credit card following no legitimate medical evaluation.

That being said, I have not seen any case or guidance which would permit management to mandate that medical verifications be notarized. The Fair Housing Act and health care privacy laws limit what management can collect from our residents. Now, you could certainly request the verification be notarized (and/or have space for a notary on your reasonable accommodation form). It is possible that some medical professionals would indeed have the form (or their letter) notarized. But if a resident objected to the requirement for a notarized signature (and management denied the request solely because the medical verification lacked a notary) and filed a complaint, while I would absolutely do my best to defend the complaint, I am not sure we could mandate the notary requirement under current law. An interesting idea. But I think a best practice is to continue to review and evaluate all medical verifications to do our best to ensure it was not obtained from a less than legitimate source.

Hope that helps. Just A Thought.

I am always gratified to receive comments from Fair Housing Defense blog readers. Many enjoy the light and breezy writing style involving what could be, shall we say, a dry topic. Some, however, are a little less kind – one reader last week thought I didn’t know what I was talking about, and used a colorful metaphor. Which is fine and why I don’t publish the comments. Got to love the internet. In any event, several readers have asked me similar questions, so I thought I would try to use this post to provide some answers:

  1. I represent apartment management, ownership, trade associations, and/or apartment leasing professional employees. I have taken what is called a “positional conflict” to only represent one side. My point is that I want my clients to know that while I am defending them against allegations of discrimination in one matter, I am not pressing similar claims for another client in a different case. Residents needing representation can look to local fair housing advocacy groups as well as HUD, state, or city officials.
  2. Yes, in addition to defending cases, I also do fair housing training and compliance. Ensuring our employees know and follow the law is one of the best ways to really avoid needing to speak with a lawyer like me after a formal discrimination complaint is filed. Saying “I did not know the law” never works as a defense to a claim. Trust me on that.
  3. Even if a resident has provided you with appropriate medical verification in support of a service or emotional support animal, that animal (and its owner) must still follow the rules of your community. A service or emotional support animal is not permitted to howl long into the night, bite other residents, and/or urinate (or worse!) throughout the property. A resident may indeed be entitled to a service animal, but that resident is still required to clean up after the dog. In short, no animal can be a direct threat to other residents, property employees, or to the community itself. Also, remember that while there are no breed or size restrictions on service or companion animals, always engage with your residents in an effort to solve any issues before they become formal problems.
  4. Many of my clients are continuing to question emotional support animal verifications that appear to be purchased with a credit card over the internet without any legitimate medical evaluation. Indeed, I have had a couple of doctors let me know that they will not write medical verifications for patients simply attempting to avoid pet fees. An interesting trend, but I am sure there will be much more to come on this point.
  5. While a number of President Trump’s cabinet selections have been confirmed, there are other nominations (including that of Dr. Ben Carson to lead the U.S. Department of Housing and Urban Development) that remain pending. As the Senate will be in recess next week, it appears likely Dr. Carson will have to wait until the end of February or even early March for a final vote by the Senate. I have not seen active opposition to Dr. Carson such that his nomination is in trouble, only that it is taking longer than I would have expected following his confirmation hearing.

Just A Thought.