On September 15, 2016, the U.S. Department of Housing & Urban Development (“HUD”) issued new guidance impacting apartment management concerning residents who have limited proficiency reading, writing, speaking, or understanding the English language (“LEP”). Housing providers who take adverse actions against such people now run a new risk of liability under the provision of the Fair Housing Act (“FHA”) protects individuals based upon their national origin.

HUD’s guidance concludes that anyone who discriminates against a person because of their LEP (although not a protected class in the law) is almost certainly discriminating against someone based upon their national origin (which is a protected class in the law).

It should go without saying that it is unlawful to intentionally discriminate against someone based upon their actual or perceived national origin. The FHA has always barred housing providers, for example, from having a policy of not renting to potential tenants because they are from a specific country. HUD’s guidance clarifies that housing providers also risk violating the FHA if they have policies or practices that discriminate against persons based on their primary language. It is now potentially a violation of the FHA to base housing decisions upon a resident’s proficiency with English or to express a preference against people with LEP through advertisements.

As with other forms of discrimination, housing providers may also be held liable for unintentionally discriminating against persons with LEP based upon the discriminatory impact that a policy or practice may have on members of that class. Facially neutral policies, such as refusing to provide translation services or refusing to translate documents may have the unintended effect of discriminating against persons with LEP. Given the Supreme Court’s recent FHA decision, housing providers should be particularly cognizant of that risk. A housing provider would likely find it difficult to demonstrate that its refusal to give a potential renter access to translation services is necessary to achieve a substantial, legitimate, and nondiscriminatory interest, which the housing provider would have to do to defeat a discriminatory impact claim.

Now, it is important to note that this guidance, like all guidance issued by HUD, does not carry the full weight of law and that courts are not required to follow HUD’s directives. Regardless of how the Court’s end up treating this guidance, however, housing providers can be sure that the HUD and local fair housing advocates will attempt to capitalize upon it quickly, particularly in areas where the population density of persons with LEP is high. What to do? Housing providers should examine their current policies to determine if those practices may dissuade non-native English speakers from buying, renting, or borrowing, and, at the least, should begin exploring language translation and interpretation services available in the communities where they operate.

Just A Thought.