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Indeed, I heard rumors that HUD previously completed a guidance document last fall, but ultimately those materials were withdrawn so more work could be done.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.

In a statement released earlier this month, the U.S. Department of Housing & Urban Development (HUD) announced that it settled a Fair Housing Act (FHA) sex discrimination case from California for $20,000. The facts involved allegations that the owners of an apartment complex refused to remove a husband from a lease after his wife (and mother of two minor children) obtained a domestic violence restraining order against him.

In the complaint, the woman resident claimed that the property discriminated against the now single mother of two by refusing to remove her former husband from the lease and by failing to change the locks. Furthermore, the complaint noted that although the property manager ultimately agreed to change the locks, the leasing office staff told the resident that her former husband could still have a copy of the new key should he make such a request. According to the allegations, this conduct caused the woman to move (with her children) from the apartment home.

In addition to the monetary settlement, the property owners agreed to implement a domestic violence policy at its more than 240 residential properties to address the safety and housing needs of residents who suffer from domestic violence as well as go through fair housing training.

While there are always multiple sides to every story, professional apartment management should remain nimble in a circumstance in which a resident presents a protection from abuse or similar type of restraining order against a spouse/significant other. As this case confirms, management can be held responsible for failing to act when a safety concern is raised and is supported by a court order. If you are concerned about the language in a court order or are uncertain about what to do when faced with a request like this, please reach out to a lawyer like me.

Just A Thought.

In a statement issued last week, the U.S. Department of Housing and Urban Development (HUD) announced that it resolved a familial status Fair Housing Act (FHA) case from Maine for $18,000.

The case, stated by a fair housing tester group, began when fair housing testers – who were posing as parents with children – followed up on advertising indicating that children were not allowed and asserted those ads were discriminatory. In addition to the advertisements, it was alleged the property owner and agent refused to negotiate rental terms as well as made discriminatory statements to the testers posing as parents. HUD’s consent order concludes an October 2018 charge of discrimination against the property owner and real estate agent.

As is typical in these types of cases, in addition to the $18,000 payment, the Respondents agreed to undergo fair housing training.

The takeaway here for professional apartment management includes that: (a) fair housing testers are out there, trolling the internet looking for advertising that might (again, might) violate the FHA; (b) if you think your ad comes close to the line, have it reviewed by a lawyer like me. Otherwise, you could end up as a Respondent in a fair housing matter and then you will really need a lawyer like me.

Are there times when a property owner simply does not want children at an apartment community or home? Sure. But I also have seen many circumstances in which the management company and/or leasing agent is concerned about safety (whether it is a high traffic area, limited parking, difficult stairs, restrictive swimming pool rules, or simply a perceived fear of excessive running and/or horseplay) – and those concerns get expressed in a manner such that a fair housing tester asserts that families with children are not welcome. Don’t fall into that trap. Welcome all to your property.

Just A Thought.

Earlier this month, the U.S. Department of Housing & Urban Development (HUD) announced it settled a fair housing case from California involving allegations of disability discrimination related to the remediation of mold as well as retaliation against residents for raising the mold concern.

The case was brought to HUD when a couple with disabilities filed a complaint asserting that their apartment owner/management company refused to remove mold from a building after the couple reported it. Furthermore, once the mold was identified, the complaint also alleged that the couple received a lease termination notice and an increase in their monthly rent. After receiving the lease termination notice, the couple vacated their unit.

Pursuant to the terms of a conciliation agreement, the owner and management company promised to pay the couple $6,000, undertake fair housing training, amend their reasonable accommodation policies, and distribute the revised policies to their tenants and employees.

From my perspective, mold is a hot button issue. Indeed, many of my clients treat mold extremely seriously and in truth we expedite remediation of suspected mold. If mold is found, nothing good can come to a property by leaving it unchecked. As such, while I am sure there are two sides to this story, it is rare in my experience to see mold unchecked after a report. And certainly it is uncommon to raise the rent and send a lease termination notice for such a report, which is what I suspect raised a red flag with HUD.

So, if you get a mold report, take it seriously and have it promptly checked. And document the report and remediation. This is one that management can get right.

Just A Thought.

In a post from September 2018, I reported that Facebook’s targeting advertising practices have subjected the social media site to scrutiny, including multiple civil lawsuits and administrative complaints. In short, the various plaintiffs asserted that Facebook’s micro-targeting permitted advertisers to “screen out” members of various protected classes. Facebook did this, the complaints allege, by using data to exclude women, seniors, individuals with disabilities, and minority groups from certain advertising (including those for housing).

In an effort to resolve some of these complaints, just yesterday, Facebook announced that it would overhaul its targeting advertising platforms, by creating a separate portal to limit how much advertising for housing can micro-target potential customers. Facebook believes that the new portal will prevent advertisers from using protected classes in a manner contrary to federal, state, and local anti-discrimination laws.

To be sure, there is also a financial component – the settlements announced yesterday noted that Facebook would pay less than $5 million to the various parties, including $2.5 million to a fair housing advocacy group to train advertisers to create appropriate housing ads. As a further part of the resolution, Facebook intends to give users the ability to search all housing-related ads that appear on the platform regardless of if the reader received the ad in a personal news feed or news clip. Now, Facebook still needs to resolve a HUD administrative complaint (alleging that Facebook supported housing discrimination by permitting advertisers to exclude potential renters based on race, gender, zip code, and/or religion) that was not a part of the settlements announced yesterday.

Look, targeting advertising has been around from the time of the first ad placed in a newspaper. In our world, of course, apartment communities seek to advertise in sources that will reach the most likely renters. Makes good sense. We want to spend our advertising dollars wisely. In other words, be INCLUSIVE with your targeted ads. Facebook got into trouble because it was alleged to have EXCLUDED certain protected classes. Make sense?

Just A Thought.

At the start of this week, the Trump Administration published its proposed budget for the federal government for the fiscal year starting October 1, 2019. While this is just a proposal – and will certainly be amended by Congress before the end of September – I wanted to highlight a couple of points of interest to those in the professional apartment management industry.

First, while it is true that the Administration proposed cutting funding for the U.S. Department of Housing & Urban Development (HUD) by 16.4 percent – that does not mean that the Fair Housing Act (FHA) is now off the books and management can stop fair housing training. It looks like most of the cuts would come from public housing and related block grant programs. Indeed, a little research led me to a HUD press release in which the department notes, albeit near the bottom of the text, “[a]s it did last year, the Administration is seeking $62.3 million to support HUD’s fair housing mission.” That money goes to fund various HUD fair housing partners and HUD-sponsored initiatives to combat housing discrimination. I doubt that will change very much.

Second, even if HUD reduced or stopped funding fair housing, individual state, city, and county anti-housing discrimination laws remain and are enforced in the normal course. Indeed, HUD partners with various local commissions or agencies who actually investigate many of the fair housing claims I defend against. And remember that many state, city, and county laws contain additional protected classes of individuals covered under their respective fair housing statutes.

The takeaway? The Administration’s budget number is just a proposal. Think of it as a trial balloon which Congress may, or may not, pop. Fair housing remains codified in U.S. Code and professional apartment management should continue best practices in complying with applicable law and training our leasing office team members to get it right. Or you will still need to speak with a lawyer like me.

Just A Thought.

Earlier this week, the U.S. Department of Housing and Urban Development (HUD) reported that a Minnesota housing provider agreed to pay $74,000 under the terms of a consent order to conclude a discrimination action asserting a housing provider failed to rent a home to a family of five adults and six minor children because they were Native Americans and Hispanic as well as because they had minor children. The property in question is a six-bedroom, five-bathroom home with over 7,000 square feet of living space, two kitchens, a sauna, a sunroom, a fitness room, and a library in addition to other amenities.

While the complainants alleged discrimination based on race/national origin and familial status, the Respondents claimed the denial of housing was because the number of individuals exceeded the functional capacity of the residence generally and that 11 people living in the property would have caused damage to the home’s septic system. Our federal Fair Housing Act (FHA), of course, includes prohibitions on discrimination in housing because of race, national origin, and familial status.

Following an administrative complaint, HUD filed a charge of discrimination in August 2018, after the owners of the property declined to rent the six-bedroom residence to the family. HUD believed that the property owners and broker discouraged the family from renting the home by offering them less favorable rental terms, including increasing the requested monthly rent by $1,000.

Under the terms of the settlement, the respondents will pay $74,000 to the families involved, place a fair housing advertisement in the local newspaper, and the real estate broker will take fair housing and multicultural sensitivity training.

As discussed periodically in this space, reasonable occupancy standards can certainly be appropriate. Indeed, at first glance, 11 people in one house appears to be a bit much. Until learning that the home in question had six bedrooms, five bathrooms, and over 7,000 square feet of living space.

Just A Thought.