Earlier this month, the U.S. Department of Housing & Urban Development (HUD) announced that it charged the owner and manager of a trailer park in Mississippi (with seven lots on 1.25 acres of land, each with water and utility hook ups) with violating the federal Fair Housing Act (FHA) by failing to rent a lot to an interracial married couple with two children (ages seven and five). HUD’s complaint asserts that after the property manager discovered that the husband is African American, the manager stated the entire family had to immediately relocate from the trailer park.

The case started with the filing of an administrative HUD complaint alleging that the trailer park discriminated against the family on the basis of race. The wife is Hispanic and, as noted above, the husband is African American. HUD claims that the wife was rented a lot as it was believed that the wife was Caucasian. However, literally a day after the family moved it, the defendants discovered the race of the husband and they demanded that the family move and take their trailer out of the park. HUD’s complaint further alleges that during a phone call the manager said “white and black shacking” was “problematic for his community, his church, and his mother in law.” The owner also allegedly said to the wife that “you did not tell me you were married to a black man.” Although the wife asked him to reconsider and informed him the couple was married and not “shacking”, HUD claims the owner refused and returned the first month’s rent. The family then moved out of the park. A reporter subsequently telephoned the owner and was told that neighbors did not approve of an interracial family. The HUD complaint followed.

While I always caution that these are just allegations at this point and there are two sides to every story, professional apartment management employees should be trained to avoid anyone being able to assert that a staff member would say anything like what is alleged in this complaint.  Or you will really need to speak with a lawyer like me.

Just A Thought.

When evaluating assistance animal requests from our residents, one of the issues faced by apartment leasing offices across the country is what to do if the animal is believed to be a “direct threat.” The law is absolutely clear that an animal (usually a dog) cannot be categorized as a “direct threat” unless there is evidence that the specific animal in question presents a legitimate danger to other residents, to property management employees, or to the property itself. To illustrate, we cannot simply deny an assistance animal because he or she is a particular breed, a particular size, or because of the animal’s weight.

Applying applicable standards concerning the “direct threat” analysis, last year the Vermont state Supreme Court issued an opinion, affirming the trial court below, concluding a landlord was correct in denying a reasonable accommodation request for a specific dog as the evidence demonstrated that the animal posed a direct threat. Even though the dog never attacked another resident, the evidence relied on by the court included:

*that the dog regularly reared up on her back legs, lunged, or bared her teeth at people and other dogs when outside;

*that the dog often went “crazy” [the court’s word, not mine] when other resident or dog passed the resident’s apartment home;

*that the resident informed others that the dog had been trained as a “guard dog” and was “people and dog aggressive”;

*that the resident asked another resident to walk their dogs at different times to avoid conflict with the purported assistance animal;

*that there was evidence in the record that the resident may not have been able to control the dog; and

*efforts by the resident to reduce or control the potential threat (such as limiting the time the dog was outdoors) would not sufficiently reduce the potential for aggression and/or were not appropriately raised or were thought not to be potentially successful.

While every reasonable accommodation request must be evaluated on a case by case basis, the court here provided some concrete examples of the types of behavior that it found disqualifying in an assistance animal. In my experience, even when we see an animal which may be a direct threat, management must always engage in the interactive process with the resident to determine if there are ways to control the animal. If you don’t, there is a decent chance that you might need to speak with a lawyer like me.

Just A Thought.

Acting pursuant to state law, the New York Division of Human Rights initiated a complaint against a property manager in New York City alleging discrimination against individuals based on their immigration status.

The complaint followed an investigation which revealed an agent for the landlord posted a letter addressed to “all tenants” on the front door of the property. The letter demanded that residents provide proof of employment, a photo identification, Social Security card, Green Card or passport, or would face a possible eviction from their homes. In addition to the letter on the door, the landlord made a number of public statements to various media outlets which the state officials contend demonstrate a discriminatory view toward New Yorkers of Latin American descent. Now, remember my usual caveat that just because a complaint has been filed does not mean a defendant is liable or that the charges have merit. Indeed, I always know there are (at least) two sides to every story.

Now, while “immigration status” is not specifically a protected class under the federal Fair Housing Act (FHA), it is certainly likely this complaint could have been filed pursuant to the federal statute using national origin, race, or creed – which are protected classes under the FHA.

To be clear, management has an absolute right (and indeed should) have a non-discriminatory resident selection criteria in place which requires that all applicants undergo a credit and criminal background screen. Those checks are a leasing office best practice. But we should not use credit and criminal background screens to do an immigration status check.  Or there might be a need to speak with a lawyer like me.

Just A Thought.

It is clear that just about all (if not all) of the federal, state, and local fair housing agencies are dealing with the exponential growth of online medical verifications for emotional support animals (ESA’s). I have addressed any number of ESA issues in this space. Professional apartment management companies continue to look for the appropriate sweet spot of ensuring that everyone with a legitimate disability is granted the accommodation they need, while at the same time raising appropriate questions about medical verifications that appear to have been purchased online after a few clicks of a computer mouse (or now just on a smart phone) and a $69.99 charge on a credit card (or perhaps $125 if you need the letter overnight).

Many of my clients now seek supplemental information whey they receive what appear to be the online ESA form letters. I have a drawer full of the same letter, signed by some of the same online providers. In return, I get nasty grams from the online providers concluding my clients are violating the fair housing laws because they did not simply accept their verification as presented. I don’t mind taking the heat, but it is always good when a governmental entity blesses our efforts to confirm that medical verifications are legitimate.

To that end, the Virginia Real Estate Board and Fair Housing Board issued a Guidance Document evaluating Reasonable Accommodation Requests for Assistance Animals. Addressing the reliable medical verification concern, the guidance provides that professional apartment management “should not be daunted by the prospect of potential litigation into accepting dubious verifications limited to vague statements of how an assistance animal would benefit the requester, but rather should insist on supplemental credible confirmation of [an] underlying disability. As with any other reasonable accommodation request, housing providers are absolutely within their rights to focus first on establishing the legitimacy of the requesting party’s disability status as defined by fair housing law.” That is all we want.

The Guidance further confirms that housing providers “may request that verifiers authenticate all or some of the following information to help evaluate their reliability and knowledge of the requester’s disability.” As such, I continue to believe we are well within our rights to continue to seek information concerning the:

*General location of where the care was provided as well as the duration of the care (such as the number of in-person sessions within the preceding year);

*Whether the verifier is accountable to or subject to any regulatory body or professional entity for acts of misconduct;

*Whether the verifier is trained in any field or specialty related to persons with disabilities or the particular impairment cited; and/or

*Whether the verifier is recognized by consumers, peers, or the public as a credible provider of therapeutic care.

Will guidance like this stop the highly questionable ESA medical verifications? No. But let’s hope our efforts to seek supplemental information when something looks like it has been purchased online continue to be validated.

Just A Thought.

 

Last fall, the California Department of Fair Employment and Housing (DFEH) resolved a familial status fair housing case that I wanted to highlight. Familial status, of course, is the protected class which covers families with children under the various federal, state, and local fair housing laws. This discrimination complaint asserted that an apartment management company rejected a California family of 12 a chance to rent a 2,583 square foot home because the family had “too many kids.”

Defending against the claim, the management company noted it followed the “two plus one” occupancy standard – which means two persons per bedroom, plus one additional person in the home. Based on the facts here (a family of twelve), that would appear to require at least a four (if not a five or a six bedroom home). The DFEH typically follows the federal guidelines for home occupancy. While the U.S. Department of Housing & Urban Development (HUD) issued guidance back in 1992 confirming that two persons per bedroom would generally be considered reasonable, the guidelines since then have changed. While some states formally adopted a “two plus one” standard, the modern rule is simply that enforcement of occupancy standards depends on what is reasonable for the specific home at issue – which further depends on the size and configuration of the unit (including the number of bedrooms, the size of the bedrooms, the total living space, if there are any physical limitations in the home, the ages of the children, and other relevant factors).

As a part of the settlement, the management company agreed to revise its policies, commit to annual fair housing training as well as submit to quarterly inspections. Curiously, the press release noting the resolution did not include a financial component. Obviously, it is a rare application which comes from a family of 12.  And not many rental units can fit a family of 12.  But I suspect that was part of the reason the DFEH took the case.

The takeaway here: do not out of hand reject an application for housing because it looks like there may be “too many kids” or simply conclude that your company follows the old 1992 HUD guidance. Management companies need to perform a review to determine what is a reasonable number of occupants given the size of the home (use the total living space) – and not just the raw number of bedrooms. Or you may need to speak with a lawyer like me.

Just A Thought.

Many times the cases with what look like the most egregious set of facts are the ones that get the most publicity. To that end, a fair housing case in California just settled with the owner of several apartment complexes and rental homes agreeing to pay $100,000 to conclude a disability discrimination action involving emotional support animals.

The complaint (which started as an administrative action with HUD filed by a local fair housing advocacy group) asserted that the apartment owner sent a letter to his residents stating he did “not like to deal with pets of any kind.” The letter contained no exceptions for assistance animals. Next, the defendant sent letters to the residents asserting that a flea problem existed and his solution was to ensure all pets were gone.  Or that the residents had to send letters from a veterinarian certifying that their animals did not have fleas. He then sent eviction notices to a handful of residents with pets and ultimately evicted two residents with emotional support animals.

In addition to the $100,000, the defendant agreed to participate in fair housing training, adopt policies for reviewing reasonable accommodation requests, and provide three years of semi-annual reports to the California Department of Fair Employment and Housing detailing reasonable accommodation requests and the resolution of the requests. The money includes damages to the former residents as well as investigatory costs and attorney’s fees.

The takeaway: Yes, you can prohibit pets at your apartment community. No, you cannot prohibit appropriately medically verified service and/or emotional support animals. If you are uncertain over this provision in the law, I suggest you reach out to a lawyer like me for some fair housing training.

Just A Thought.

 

 

Continuing down a path that has been highlighted in the news lately, last week the U.S. Department of Justice (DOJ) filed a lawsuit in U.S. District Court in Kansas alleging sexual discrimination under the Fair Housing Act (FHA). In the new complaint, DOJ asserted that female residents at a handful of rental properties in Kansas were subjected to egregious sexual harassment and retaliation.  DOJ’s complaint named four defendants (as the properties were owned by one or more of the individuals) where the illegal conduct allegedly took place from 2010 through 2014.

This litigation started when two former residents filed administrative complaints with the U.S. Department of Housing & Urban Development (HUD). The residents asserted that one of the defendants sexually harassed them by making unwelcome advances and comments, engaging in unwanted sexual touching, and evicting residents who refused to engage in sexual conduct with him.

While the complaint still needs to be proven in court (and there are always two sides to every story), the allegations remind us that DOJ and HUD remain willing to bring actions in which this type of conduct is alleged. As apartment management professionals, we need to ensure our staff members (from ownership on down) are trained to follow the FHA, which includes a component on preventing sexual misconduct. Indeed, in October 2017, DOJ announced a new Sex Harassment Initiative. The initiative specifically seeks to increase DOJ’s efforts to protect individuals from harassment by landlords, property managers, maintenance workers, security guards, and other employees and representatives of rental property owners.  DOJ also noted that it has filed or settled six sexual harassment cases since January 20, 2017, and has recovered over $1 million for victims of sexual harassment in housing.

What does this mean for property management professionals? Ensure your team members (from ownership on down) are trained to identify and prevent sexual misconduct. Don’t be the next management company or ownership group named as a defendant by DOJ or HUD following possibly inappropriate conduct by staff members.

Just A Thought.

 

The Department of Justice (DOJ) recently announced that it has settled a handful of cases in which plaintiffs made allegations of sexual misconduct under the Fair Housing Act (FHA) and resulting discrimination. In one case, DOJ resolved a complaint filed against a Housing Authority in Indiana in which the allegations concerned sexual misconduct and discrimination based on disabilities. Another case, this one from Michigan, also involved allegations of sexual discrimination. Shortly after announcing a resolution of these cases (as well as another from Kansas), the DOJ announced an initiative to combat sexual harassment in housing.

The Michigan action resulted in the owner of rental properties agreeing to pay $150,000 to settle allegations that he sexually harassed multiple women who lived in or inquired about his rental offerings. Under the terms of an agreement, the defendant promised to pay $140,000 to ten victims of discrimination as well as a $10,000 penalty to the United States. The complaint asserted that the defendant made unwelcome sexual comments and advances, engaged in unwanted touching, offered housing benefits in exchange for sexual acts, and threatened to take adverse housing action against women who refused his harassment.

The Indiana case was filed after an investigation demonstrated that employees of a local Housing Authority subjected female residents to unlawful sexual harassment and discriminated against residents with disabilities. The complaint asserted women were subjected to unwanted sexual conduct, questions, making explicit comments, and showing inappropriate pictures and videos. The claims also included denying reasonable accommodation requests (including efforts to be transferred to first floor units and efforts to obtain designated accessible parking spots). To resolve the matter, the Housing Authority agreed to pay $70,000 to compensate seven victims of discrimination.

The initiative – which will be piloted in Washington, D.C. and in western Virginia – will work to identify barriers to reporting sexual harassment and search for new ways to cooperate and collaborate between local law enforcement, legal service providers, and public housing authorities to leverage their respective expertise. In announcing the initiative, DOJ noted that it has recovered over $1 million for victims of sexual harassment in housing in 2017.

Given the increased media attention and coverage of allegations of sexual harassment of women in various walks of life, I believe this is a good time for professional apartment management to take a look at our policies in place to prevent sexual harassment and perhaps even to schedule some refresher training. Indeed, one client contacted me last week to schedule a session.

Just A Thought.

Pursuant to an agreement announced last week, the U.S. Department of Housing and Urban Development (HUD) announced that it resolved a discrimination complaint filed by local housing advocacy groups against Maryland’s Department of Housing and Community Development (DHCD). The complaint challenged the fairness of Maryland’s Low-Income Housing Tax Credit (LIHTC) program.  As detailed by HUD, the resolution puts forward policies, incentives, and more flexible program rules that are designed to streamline the designation/construction of affordable housing in various neighborhoods in and around Baltimore.

With respect to housing, the deal as crafted is hoped to develop up to 1,500 new affordable units. Of those 1,500 units, more than 1,000 are slated to be new construction. In a change to state policy, developers of affordable housing will no longer have to satisfy certain local scoring or approval criteria before applying for state-allocated tax credits.

The resolution ends six years of litigation that was filed by a group of housing and civil rights organizations. The plaintiffs argued that Maryland’s policy of requiring local jurisdictions to approve proposed affordable housing projects prior to the allocation of tax credits to fund construction essentially stopped affordable housing from being developed in predominately White areas. As such, according to the complaint, housing opportunities for African American and Hispanic families were wrongfully limited in and around Baltimore.

Pursuant to the settlement, the DHCD will: end the requirement of local approvals; mandate that at least 1,500 units of affordable family housing are developed certain areas in and around Baltimore region; amend plans to now award points to any proposal to develop family housing in a community of opportunity (including providing more of an incentive for homes with two or more bedrooms); expand affirmative fair housing marketing activities; and pay $225,000 to promote the mission of the local fair housing groups.

Just A Thought.

 

In a case involving the Americans With Disabilities Act (ADA), the U.S. Court of Appeals for the Seventh Circuit issued a new opinion which details the elements of a retaliation cause of action under the Fair Housing Act (FHA). The facts involved a special education teacher who was laid off as a result of an unsatisfactory performance review. The teacher challenged her review by defending her teaching methods, not by asserting she was advocating on behalf of any students or that she was exercising rights under the ADA.

After confirming that the interference provision of the ADA was modeled after the retaliation language contained in the FHA, the court made clear the following elements that would be needed to prove a retaliation claim under the FHA: (a) that the plaintiff engaged in activity protected by the FHA; (b) that the plaintiff was engaged in, aided (or encouraged others) to exercise or otherwise enjoy their FHA-protected rights; (3) the defendant coerced, threatened, intimidated, or interfered on behalf of the statutorily protected activities; and (d) the defendant was motivated by an intent to discriminate. Applying this test to the evidence in the ADA case, the Seventh Circuit concluded the plaintiff’s facts were insufficient and affirmed the trial court’s summary judgment decision in favor of the defendant. The appellate court concluded a dispute of teaching methodology did not rise to the level of asserting rights under the ADA on behalf of disabled students.

The takeaway for professional apartment management companies and employees? Under the FHA, while retaliation claims absolutely exist, it is clear that a plaintiff must be able to demonstrate a specific protected activity that he or she was attempting to assert and either an intent to discriminate or at least a causal connection between the protected activity and the challenged action.

Just A Thought.