Fair Housing vs. Unfair Housing

Do you know the difference?

Knowing the difference between fair housing and unfair housing isn't as obvious as you might think. This blog aims to present a variety of important and interesting fair housing issues.

If you're an apartment professional, avoid costly mistakes by reading the stories of others who — even with good intentions — learned compliance lessons the hard way. (For the easy way, click here.)

If you live in an apartment, get familiar with your rights when it comes to housing discrimination, as well as your options for seeking justice.

Friday, October 7, 2016

HUD Pumps Helium Into the Fair Housing Act

The U.S. Department of Housing and Urban Development (HUD) has been busy rolling out initiatives aimed at broadening the coverage of the Fair Housing Act (FHA) to protect a greater number of individuals in a range of situations.

September brought new HUD guidance and final rules in three key areas of fair housing. Housing providers across the United States should be aware of these developments as they may affect their compliance risk. If you own or rent a home, or you're looking to move, it's helpful to keep these anti-discrimination protections in mind.

Following is a summary:

1) Gender identity

Action: Final rule
Date: September 21, 2016
Effective date: October 21, 2016

Applicability: Limited to programs and shelters funded under programs administered by HUD's Office of Community Planning and Development (CPD).

Purpose: Ensure equal access for people in such programs regardless of their gender identity. HUD determined that its 2012 Equal Access Rule did not adequately address the "significant violence, harassment, and discrimination" faced by "transgender and gender nonconforming persons." This new rule modifies definitions of certain key terms so that "gender identity" is understood to be determined regardless of the gender indicated on a person's birth certificate, driver's license, or other identifying documents.

2) Limited English Proficiency (LEP)

Action: Guidance
Date: September 15, 2016
Effective date: Immediately 

Applicability: Broadly applies to all housing covered under the FHA. (Note that housing providers that receive federal assistance have greater obligations to provide meaningful access to LEP applicants and tenants under Title VI of the Civil Rights Act of 1964. For more information about this, visit LEP.gov, a federal interagency Web site.)

Purpose: Protect people from housing discrimination based on their limited ability to read, write, speak, or understand English. This affects an estimated 9% of the U.S. population. LEP is not a protected class under the FHA. However, HUD has found that discrimination based on LEP often is not based on legitimate communication concerns but rather is a proxy for discrimination based on national origin, which is a protected class.

3) Sexual harassment and domestic violence

Action: Guidance
Date: September 13, 2016
Effective date: Immediately

Applicability: Broadly applies to all housing covered under the FHA.

Purpose: HUD is addressing the issue of so-called "nuisance ordinances," which have been growing in number and often require landlords to evict tenants after seeking emergency services as the victims of domestic abuse and other crimes. The guidance helps address how to ensure housing providers don't discriminate—intentionally or not—against such people under these ordinances, by applying the three-step discriminatory effects burden-shifting analysis.

Action: Final rule
Date: September 14, 2016
Effective date: October 14, 2016

Applicability: Broadly applies to all housing covered under the FHA.

Purpose: Explain how housing providers may be liable for sexual harassment, mainly by identifying and detailing "quid pro quo" and "hostile environment" sexual harassment. HUD regulations along with court interpretations have made clear that sexual harassment is a form of discrimination based on sex, in violation of the FHA. This final rule offers more information about what constitutes sexual harassment under the FHA. This clarification echoes earlier HUD guidance of November 2008.

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