Highlighting the interplay between the federal Fair Housing Act (FHA) and state anti-discrimination laws, earlier this year the California Department of Fair Employment and Housing (DFEH) announced it resolved a housing discrimination case asserting that property owners (who were a married couple) refused to rent a guesthouse to another couple because they were married and the wife was pregnant.

After viewing (and responding to) ads for housing on various internet sites, the complaint alleges the owners failed to rent the property to the couple as the landlords told them the guesthouse was for only one person. The DFEH investigation revealed that the ads noted the unit was for “ONE person ONLY, NO couples, only ONE person…” DFEH further claimed that the landlords ran an advertisement on a different online site noting a preference for “Straight men, Straight women” as tenants and no children.

After informal mediation was unsuccessful, DFEH initiated a lawsuit in December 2018, including claims of discrimination based on marital status, familial status, and sexual orientation. As such, this case demonstrates how management must know the specific laws in the jurisdictions in which we have properties. For example, while sexual orientation is not generally a protected class under the federal FHA, it is an additional protected class under California law and the alleged discriminatory language in the internet ad was used to bring an additional count in the complaint.

The case ultimately settled with the owners agreeing to pay $15,000, including damages to the potential tenants as well as attorney’s fees and costs to DFEH. As is typical in these types of cases, the owners will also be required to draft anti-discrimination policies, attend fair housing training, and submit regular fair housing compliance reports for the next three years.

In this day and age, we have to ensure our housing ads – which are now largely online – comply with the law as anyone (including fair housing testers as well as potential renters) has easy access to them. And while I know there are two sides to every story, the ads will typically be found to speak for themselves and management’s efforts to explain them away will be subject to scrutiny.

Just A Thought.

Yesterday, the U.S. Department of Housing & Urban Development (HUD) issued a press released stating it formally charged a New York property owner and manager with violating the Fair Housing Act (FHA). In its charging documents, HUD claims that the Respondents failed to permit a mother to have an assistance animal for her son (as the son has a mental disability). Additionally, HUD asserts that the owner and manager retaliated against the renters for exercising their fair housing rights.

Factually, the mother filed a complaint stating that the property manager refused to permit her son to have an assistance animal and further stated that the manager attempted to evict them because the mother and son asserted rights under the FHA. HUD also claims that even after learning from local county officials that the FHA does not require or limit dog sizes, the property manager nevertheless mandated the resident provide documentation that the assistance animal was an adult dog and confirm that the animal was under 20 pounds.

Now, just because HUD issued a charge of discrimination does not mean the facts are as asserted in the complaint. As I have written multiple times, I know there are always at least two sides to every story. But this complaint illustrates a consistent pattern I have seen from HUD over the years: the Department takes an exceedingly dim view of what they perceive as retaliation against residents who raise fair housing concerns or file housing discrimination complaints. The law is very clear that filing a discrimination complaint is protected activity and the government will act if it can show management is interfering. Also, HUD’s position is that there can be no canine breed or size restrictions with respect to assistance animals, even if a local ordinance is to the contrary.

If you have questions concerning issues like this, you might want to check with a lawyer like me.

Just A Thought.

In a press release issued at the end of last month, HUD announced that it awarded another $1.2 million to combat housing discrimination. The grants, sent to 11 different organizations around the country, are tax dollars used to “educate the public and housing providers about their rights and responsibilities under the Fair Housing Act.” Fair enough.

While that is not wrong, it is also money used to fund fair housing testers to seek out what are then claimed to be discriminatory policies or conduct. My concern is that while the professional apartment management community absolutely supports fair housing and works to get it right, I am troubled by someone surfing the internet and looking to create a violation (and be awarded legal fees and costs) as contrasted with a legitimate effort to locate housing that is blocked because of unlawful conduct. I see a real difference there. Hope you do as well.

These grants by HUD, of course, are yet another reason for leasing offices and property management teams to document our contacts in writing (guest cards, contact cards, email, or any other way) and do our best to ensure all inquiries are handled in an appropriate and professional manner. We can never be sure which visit is a legitimate home seeker and/or which call is a from a tester, not telling you the truth about interest in your property, but someone seeking to build a discrimination complaint against you.

Just A Thought.

Last week, the U.S. Department of Housing & Urban Development (HUD) stated it decided to charge the owners/manager of a rental home in Idaho with violation of the familial status discrimination provision in the Fair Housing Act (FHA). HUD will assert that a couple (and their seven children) were not permitted to rent a home (with four bedrooms and supplemental living space) because of the number of kids.

The case was charged after HUD learned that the mother viewed an online ad for a rental house with 2,600 square feet, four bedrooms, three bathrooms, two living rooms, and two additional rooms. The advertised monthly rental price was $1,200. HUD claims that when the mother called the property manager (who is the son of the owner) to ask about the rental property, she was told that the house was available, various lease terms, as well as what were the required deposits.

The next day, the couple (accompanied by two of their children) went to tour the house, complete an application, and pay the various deposits. At that time, the property manager inquired if the two kids were the only children who would be living in the home. The mother replied that, in fact, she has seven children. HUD alleges at that point, the property manager immediately told her to stop completing the application as the owner has a limit of four children for the property. Although the mother reached out again later in an effort to continue discussions about the rental, the manager declined to further engage.

As always, there are at least two sides to every story and because HUD charges a case does not mean the allegations are accurate. But for the property management industry, reflexively rejecting a family with children can subject that action to scrutiny. While the old standard was a general “two heartbeats per bedroom” – the more modern look requires an evaluation of the size of the property as well as the amount of living space. Also, certain states and local governments have adopted laws essentially ensuring that a home can be “two plus one per bedroom.”

So, while I do believe occupancy standards make good sense and remain a best practice, those standards need to be flexible to evaluate the number of bedrooms as well as the size of the living space.

Just A Thought.

A man allegedly attacked by an emotional support animal (ESA) on a Delta Airlines flight back in 2017 has now sued the airline and the animal’s owner for negligence.

The incident took place on a flight from Atlanta to San Diego.  The plaintiff alleges the ESA was sitting on its owner’s lap and began to growl.  Next, it is claimed that the animal pinned the plaintiff against the window and bit his face multiple times.  While the owner initially regained control of the dog, the animal broke free and bit the passenger again.  The complaint asserts the airline was negligent in not ensuring the animal was restrained while in the seat and caused significant injuries.

These incidents are going to happen more often as ESA’s are placed in exceedingly close quarters on airplanes. No way around it. I see more and more ESA’s as I travel through airports.

My hope is that the federal government will provide additional guidance so airlines (and professional apartment management) can make the best decisions we can in evaluating the ESA medical verifications we receive each and every week. Alternatively, the courts will make the law for us.

Just A Thought.

Yesterday, the U.S. Department of Housing & Urban Development (HUD) announced the resolution of a Fair Housing Act (FHA) sex discrimination case for a total of $37,000 pursuant to an agreement brought against a property owner from Minnesota. Allegations included that a male property manager solicited sex multiple times from a female resident in exchange for a reduction in her rent.

While denying the allegations of misconduct, the property manager agreed to pay $30,000 to the resident and $7,000 to the resident’s attorney to conclude the matter. Additionally, for the next five years, the property owner consented to using a licensed, independent third party real estate management firm to manage all of his residential properties.

While I was not involved with this complaint and I always know there are at least two sides to every story, allegations like this – repeated solicitations of sex in return for reduced rent – go to the heart of FHA compliance and will get HUD’s attention. When I am involved in cases which include assertions of sexual misconduct, it is important to do an independent inquiry as promptly as possible to compile facts in a professional and caring manner. Ensure no one is retaliated against because a resident filed a discrimination action. Once the review is complete, I can then be in a better position to advise my clients as to what we think took place and to present a plan to move forward.

Just A Thought.

A Fair Housing Defense blog reader (thanks for stopping by) asked me to give an update with respect to potential guidance from the U.S. Department of Housing & Urban Development (HUD) and/or the U.S. Department of Justice (DOJ) concerning assistance animals generally and specifically how to review medical verifications related to emotional support animals (ESA’s). This opens a potential quagmire, but here goes:

As written here and elsewhere, professional apartment management companies continue to face an ever increasing stream of ESA requests. Some of which are absolutely appropriate and we want to approve them. Others, however, appear to have medical verifications that were simply purchased over the internet. The courts and HUD as well as various state, city, and county agencies are all attempting to interpret the Fair Housing Act in a manner which identifies: (a) that the requestor is disabled; (b) that there is a nexus (or link) for the requested accommodation; and (c) that the verification is legitimate. And this must be done within the bounds of medical confidentiality. What I see is that different agencies operate on different standards.

Now, the word on the street is that the Trump Administration was indeed working on supplemental guidance, which would also be reviewed by both DOJ and the Office of Management and Budget. Indeed, I heard rumors that HUD previously completed a guidance document last fall, but ultimately those materials were withdrawn so more work could be done. To my knowledge, nothing has been formally released yet.

It is likely that HUD is attempting to balance the views of the civil rights community (concerned about legitimate ESA and service animal requests) as compared with the housing industry (concerned about fraud and internet abuse of a law with good intentions). Where HUD comes out, I can’t be certain. I hope we will see guidance identifying the necessary type of relationship between a patient and a therapist as well as just what credentials are appropriate for someone to medically verify an ESA request.

Please know I will report back when (and if) HUD’s guidance is ultimately issued. Until then, we will take each request one at a time and respond to it as best we can.

Just A Thought.

Last week, the U.S. Department of Housing and Urban Development (HUD) announced resolution of a housing discrimination case from California for just under $11,000. The complainants are a family with a child who has a respiratory disability. The issues involved a request from the family to move to a unit away from neighbors who were heavy smokers. Disability, of course, is one of the protected classes under our federal Fair Housing Act.

Here, as a reasonable accommodation (which is a change in a rule, practice, or policy needed because of a disability) the residents sought to relocate to a different unit.

Factually, the case came to HUD after the mother made requests of her management company to switch units for the health of her son as neighbors who smoked lived near their home. And the smoking aggravated her son’s disability. Now, the agreement does not tell me if there were other available units or if the leasing office tried alternate solutions. It is clear that the mother was unsatisfied and filed an administrative complaint. The management company denied discriminating against the family.

The terms of the settlement include that the property management company will pay the mother $5,000 and forgive over $5,500 that the leasing office alleges remains owed. As is common in these cases, leasing office representatives also agreed to attend fair housing training.

While there are always two sides to every story, the teaching moment here is that our teams on the ground should be alert to engage in the interactive process with our residents when requests come in generally and specifically when a request is received from a resident with a disability. I don’t know if that was done here, but this case is a cautionary tale that working with residents is the best way to avoid having to deal with a lawyer like me.

Just A Thought.

A Fair Housing Defense blog reader (thanks for stopping by) left a comment criticizing your humble blog editor for failing to appropriately research the facts of a case I reported on. I have broad shoulders and I can take a little heat. No worries. Like most of my clients, if I make a mistake, I will certainly try to fix it.

When I report on a case, many times I specifically state that “there are always two sides to every story” and I always note there were “allegations” or “claims” or “assertions.” Look, I am a defense lawyer. Because a fact is asserted by a plaintiff or a complainant in a discrimination action does not mean that claim has been proven or is even close to true. This may sound trite, but I spend my days looking to appropriately ensure the rest of the story is told.

Please know that when I report on a case from a press release issued by a federal, state, or local government agency – I am simply noting that the case was resolved. I generally discuss what was alleged, and I try to include the monetary relief as well as any affirmative compliance that was agreed to. Unless I am the lawyer on the case, my point is not to evaluate the evidence but to provide guidance to the professional apartment management industry about current housing discrimination trends and the state of the law. Hope that makes sense.

Again, thanks for reading.

Just A Thought.

In a series of three cases accepted for review earlier today, the U.S. Supreme Court will answer a question in 2020 that will likely impact our federal Fair Housing Act (FHA) and how one of its protected classes – sex—is applied under the law. In agreeing to review these decisions, the Court will answer a question that remains unclear under federal law — do the anti-discrimination laws prevent employers from firing workers because of their sexual orientation and gender identity. While these matters involve what is known as Title VII of the Civil Rights Act, as the Fair Housing Act is Title VIII of the Civil Rights Act, it is likely the Court’s rulings in these cases will also apply to housing and how sex is defined under the FHA.

Each case, involving slightly different fact patterns, is poised to finally answer the question under federal law which has caused difficulty for many lower courts for some time now: does the Civil Rights Act, which forbids discrimination on the basis of sex, include discrimination based on gender identity or sexual orientation?

It is believed (but not yet known for certain) that the Trump Administration will support a less expansive definition of the term “sex” (such that the law will not include sexual orientation or gender identity) as contrasted with what the Obama Administration would have advocated (likely that sexual orientation and gender identity are encompassed with the statute). While a number of courts and federal agencies have concluded the broad scope of the law includes sexual orientation and gender identity, opponents argue that if a law is to be changed – it should be amended by Congress and not by unelected judges or agency officials.

To be sure, while the Supreme Court will answer this question under federal law, remember that some states and local governments have previously amended their employment and housing anti-discrimination laws to include sexual orientation and/or gender identity as additional protected classes.

Just A Thought.