The U.S. Department of Justice (DOJ) recently announced that it settled a Fair Housing Act (FHA) discrimination lawsuit with the owners/managers of more than 70 residential properties in West Virginia to resolve allegations that the property manager sexually harassed female residents and applicants. Under the terms of the deal, which was approved by the U.S. District Court for the Northern District of West Virginia, the defendants will pay a total of $600,000 (that is not a misprint) in damages and civil monetary penalties. Additionally, the individual manager was required to transfer his ownership percentage in these properties as well as to cease his role in managing them and agree to never again work in the property management business.

The litigation started with four female residents filing complaints with the U.S. Department of Housing and Urban Development (HUD). The government’s subsequent investigation revealed that the property manager harassed female residents and applicants (including engaging in unwanted and unwelcome sexual acts, touching and groping, offering housing benefits to female residents in return for the performance of sexual acts, verbal advances, entering units without permission, and threats to take adverse action against female residents when they refused or objected to his sexual advances) from 2006 through 2015.

The agreement mandates that the defendants pay $500,000 to individuals harmed by the discriminatory conduct and another $100,000 to the United States as a penalty for violating the law. The dollar amounts here are significantly above a traditional FHA case, but the egregious nature of the alleged conduct is what drove the large financial numbers.

In this day and age, it should go without saying that residential property owners and management companies must provide fair housing training to ensure none of our employees engage in conduct anything like what was asserted in this complaint.  It will be really difficult to explain to a judge how conduct like this was permitted to continue for ten years.  Enough said.

Just A Thought.

The U.S. Department of Housing and Urban Development (HUD) recently announced that it settled another fair housing case, this one for $20,000, to resolve allegations of discrimination based on national origin and familial status. Two related complaints were filed against the community manager of a California property asserting that he made discriminatory statements about Hispanic residents and that the manager prohibited certain children from playing outside.

The case started when two Hispanic couples filed a complaint alleging that the owner and manager of their apartment complex discriminated against them in violation of the Fair Housing Act because of their national origin and because they had children. Additionally, a local California fair housing group filed a supplemental complaint claiming that the manager of the property repeatedly made comments indicating that he did not like having Hispanic residents because they did not speak English as well as accusing the Hispanic residents of bringing pests (including bed bugs and rats) to the property. The supplemental complaint also asserted that the community enforced overly restrictive rules that singled out kids and further that management terminated the lease of one of the Hispanic families after their two year old daughter was heard crying loudly when the manager walked by the family’s door.

In addition to the $20,000 settlement, the Respondents also will undergo fair housing and related sensitivity training.  While I remain mindful that there are always at least two sides to every story, allegations like this (to the extent they took place) provide all of us in the apartment management business a guide concerning a practice we absolutely must train our leasing office staff to avoid at all costs.  Or you will really need to speak with a lawyer like me.

Just A Thought.

 

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.

A couple of weeks ago, the U.S. Department of Housing & Urban Development (HUD) announced that it was charging two property owners and two employees at a multifamily property in Kansas with violating the Fair Housing Act (FHA). In the case, HUD asserts that the defendants engaged in familial status discrimination by terminating the lease of a resident who asked if her grandchild could be permitted to live with her.

HUD learned of the case when a female resident filed a complaint asserting the owners of her apartment complex in Wichita terminated her lease after asking if she could add a granddaughter to the lease. The grandmother, it is claimed, had only recently obtained custody of the child. HUD’s complaint alleges that the property manager said that the request “may be a problem” and that the owners “doesn’t want kids on the property.” Finally, HUD asserts that the owners gave notice that the apartment complex was going to terminate the lease of another family with a child at approximately the same time.

As I acknowledge when reporting on new cases, there are always two sides to every story and just because a complaint has been filed does not mean that the defendant is liable for any conduct. What this complaint teaches, however, is that in most multifamily circumstances, management cannot simply terminate a lease because a resident either has a child or obtains custody of a child. If you feel like a unit at your community is too small to add another occupant, I suggest you speak with a lawyer like me to review the federal law concerning occupancy standards as well as any state, city, or county ordinances.

Now, this new case was filed on January 17, 2017. I am checking to see what gets filed by the new administration.  I will be certain to report back.

Just A Thought.

When I started writing this blog, I was afraid that only my family and perhaps a couple of friends would actually read it. I remain gratified as to the number of hits Fair Housing Defense receives every month (I work for a big law firm, we track everything). However, today is my wife’s birthday (Hi Sweetie!) – let’s see if she reads this.

Continuing their efforts to enforce the Fair Housing Act (FHA), last month the U.S. Department of Justice (DOJ) announced that a landlord in western Pennsylvania had agreed to pay $30,000 to resolve a complaint that he discriminated against families with children by refusing to permit families from renting one and two bedroom units at an apartment complex. As is so often the case, results from the use of fair housing testers were used to develop the facts which led to the filing of the complaint. In this case, it was the DOJ’s own testers who developed data showing that the defendant told applicants that children were not allowed to rent one bedroom apartments as well as refusing to inform testers about available two bedroom units until the testers informed him that no children would be living there.

Under the terms of the settlement, the defendant agreed to establish a settlement fund of $20,000 to compensate victims of the alleged discriminatory conduct and will also pay a $10,000 civil money penalty to the United States. As is common in these types of cases, the order prohibits the defendant from engaging in additional acts of discrimination, requires implementation of a non-discrimination policy (to go along with regular reporting) as well as contains a fair housing training component.

Our takeaway remains that management must train our leasing office staff to follow the law and welcome all to our properties. Remember that whether testers work for DOJ, the Department of Housing & Urban Development, or a fair housing advocacy group – know that testers are out there and are looking to bring FHA cases against owners/managers/employees. We cannot be in a situation where someone on our team makes comments that are perceived as unwelcoming (let alone discriminatory) to families with children. Even if it is done with the best of intentions (for example, if the unit is close to a busy street or up a steep flight of stairs) – that is a decision for parents, not the leasing office.

Just A Thought.

 

While individuals with a criminal record are not listed as one of the seven protected class in our federal Fair Housing Act (FHA), the Department of Housing & Urban Development (HUD) issued guidelines in April 2016 indicating that some apartment criminal screens have a “disparate impact” on African American and Hispanic applicants for housing as there are a higher percentage of African Americans and Hispanics in jail then their percentage of the population would otherwise indicate. As such, the federal government is taking the position that management evaluate prospective residents with screening criteria which is not overly broad or contains generalizations that “disproportionately disqualify” individuals based on a legally protected trait – such as race (African American) or national origin (Hispanic). HUD now takes the view that while housing providers may still consider criminal records in the application process, ownership should not make decisions which do not involve a particularized analysis of: (a) the specific offense; (b) how long ago was the offense; and (c) what rehabilitation the individual has done since the date of the conviction.

Demonstrating this new emphasis, earlier this month the Department of Justice (DOJ) filed a “statement of interest” in the U.S. District Court for the Eastern District of New York in a FHA case brought by an organization that assists those released from jail who have problems finding housing following a completed prison sentence. DOJ’s legal brief is intended to help the judge evaluate whether a specific criminal screening matrix results is unlawful discrimination if it simply uses generalized concerns about safety. In the New York case, the allegations are that management’s policy resulted in a refusal to rent to anyone with a prior conviction (felony or misdemeanor) other than traffic offenses.

The takeaway: If you have not started already, I would suggest professional apartment ownership and management review your criminal screening policy. I have now provided comments on a number of screens.  My goal is to work within the new guidance and still provide legitimate health and safety protections for our other residents, our staff members, and our properties. Look, DOJ and HUD have put management on notice and you don’t want to be the next defendant in a case challenging criminal screens, particularly if you have not had your screen reviewed by counsel.

Just A Thought.

 

Late last month, the U.S. Department of Justice (DOJ) announced that it settled another familial status Fair Housing Act (FHA) case pending against seven Michigan apartment complexes. The lawsuit, filed in November 2015, asserted that the defendants discriminated against families with children by prohibiting them from renting one bedroom units in the properties owned by the defendants.  The evidence to support the discrimination claims was developed by a local fair housing advocacy group which sent testers posing as prospective renters visiting the various communities.  Testers who inquired about renting an apartment with a child were told that children were not allowed in one bedroom units.

Under the terms of the consent decree entered into to conclude the case, the defendants agreed to establish a settlement fund of $20,000 to compensate victims of their discriminatory practices as well as pay a $5,000 civil monetary penalty to the United States. Next, the defendants agreed to eliminate the restrictions on renting to families with children at the properties they own and/or operate.  Finally, the agreement mandated that the defendants inform residents of their new non-discriminatory policy and that the defendants take fair housing training to their staff and agents.

This case reminds us, once again, that fair housing testers are out there. And that DOJ will follow through if they believe the testing data has merit.  Remember that any caller/visitor to your community could indeed be someone attempting to build a case against you and/or your property.  The takeaway for management:  treat every prospect with respect, follow the law, appropriately engage with them, complete paper (or electronic) guest cards, and always date/time stamp completed applications,  Your annotated files could well be our best defense if such a case comes up at your property.

Just A Thought.

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.

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.