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.

Link for more information: https://www.regulations.gov/document?D=HUD-2015-0104-0172

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.

Link for more information: http://portal.hud.gov/hudportal/documents/huddoc?id=lepmemo091516.pdf

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.

Link for more information: http://portal.hud.gov/hudportal/documents/huddoc?id=FinalNuisanceOrdGdnce.pdf

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.

Link for more information: https://www.federalregister.gov/documents/2016/09/14/2016-21868/quid-pro-quo-and-hostile-environment-harassment-and-liability-for-discriminatory-housing-practices

Denver Fair Housing Audit Reveals 'Pervasive' Discrimination

The Denver Metro Fair Housing Center (DMFHC) yesterday released the findings of its audit into fair housing practices, in a report entitled “Access Denied: A Report on Rental Housing Discrimination in the Denver Metro Area.”

The DMFHC's report is based on testing conducted in late 2013, in which white prospects were paired with black or Latino testers, and testers without children were paired with testers with children.

According to the report, apartment hunters are likely to encounter discrimination 91% of the time if they are Latino and 67% of the time if they are black. Also, a bias against families with children was present 73% of the time. DMFHC Executive Director Arturo Alvarado said the audit's “dramatic results" reveal that fair housing compliance "is a pervasive problem in our community and that our public officials must take action now to enforce fair housing laws and publicly condemn housing discrimination.”

Although this audit focused on race, national origin, and familial status, three of the seven protected classes under the Fair Housing Act, the report also cautions against noncompliance with other protected classes under federal as well as state housing discrimination laws.

For example, in its recommendations, the report advises housing providers to implement non-discriminatory policies, noting that:

One example of a policy that is unlawful under state law is an application fee discount offered to married couples only. Because marital status and sexual orientation are protected classes in Colorado, providing a discount to married people that is not available to singles or unmarried couples is an example of discrimination in terms, conditions, or privileges of rental.

You can download the full report here.

Update: Washington Complex Owners and Managers Settle Multiple Claims With DOJ

Last April, as part of a special series to commemorate Fair Housing Month, I blogged about the U.S. Department of Housing and Urban Development's (HUD) first announced charge of Fair Housing Month. The case concerned a Renton, Washington landlord, property management company, and on-site manger who had to defend themselves against alleged violations of four of the Fair Housing Act's (FHA) seven protected classes: race, color, national origin, and familial status.

Since then, the U.S. Department of Justice (DOJ) got involved, and the defendants have now agreed to settle the claims against them, while not admitting any liability or wrongdoing.

On March 8, 2011, a federal court entered a consent order that requires the defendants to pay $85,000 to tenants and prospective tenants who were harmed by the alleged discriminatory practices, pay $25,000 to the government as a civil penalty, create a common recreational area for tenants, including children, provide fair housing training to the defendants' employees, and develop and maintain non-discrimination policies throughout the complex.

Rural Fair Housing: What Tops the Complaint List?

A new report from the Housing Assistance Council (HAC), a nonprofit corporation headquartered in Washington, D.C., shows that more complaints under the Fair Housing Act (FHA) in rural areas of the United States were filed for disability than for any other protected class.

HAC looked at the 91,030 complaints in the U.S. Department of Housing and Urban Development's (HUD) database from 1998 to 2008, identifying roughly 13% of these complaints as concerning rural communities.

According to the study, 37% of the rural complaints were based on disability, followed by race (29%), familial status (12%), sex (7%), national origin (6%), color and religion (each 2%).

Access the complete results of HAC's report here.

Survey Indicates More Hispanics Fear Unfair Discrimination

A new national survey of 1,375 Hispanic adults shows that 61% of respondents say that discrimination against Hispanics in housing and other areas is a "major problem," up from 54% from a similar survey in 2007.

The survey, published Thursday by the Pew Hispanic Center, a product of the Pew Research Center, also indicates what may be behind this increased concern. When asked about the most important factor leading to discrimination, a plurality of 36% of respondents cited immigration status, up from a minority of 23% who responded that way in 2007. (In the earlier survey, a plurality of 46% respondents identified language skills as the biggest cause of discrimination against Hispanics.)

Despite the increase in concern about discrimination, the survey notes that there has been no increase in recent years in the share of Hispanics who report that they or someone they know have been targets of discrimination or have been stopped by authorities and questions about their immigration status.

Do you think there's a political backlash against illegal immigration that's hurting Hispanics across the United States, regardless of their immigration status? What other groups of people, if any, do you believe may be experiencing greater discrimination (or, at least, increased concern over discrimination) now, and why?

What do you think?

Preferences Are Troublesome, Even if Implied

Apartment advertisements can run afoul of the Fair Housing Act (FHA) if they show a preference for a certain type of tenant — even if that preference is implied.

A Buffalo, New York landlord just learned this lesson after placing a Craigslist ad for an apartment in a "nice Irish neighborhood." He didn't write "Irish only" (clear discrimination) or "Irish preferred" (direct preferential discrimination), but his decision to use the language he did implies he would give tenants of a certain national origin, people of Irish descent, favorable treatment. Stated differently, people reading the ad who aren't of Irish descent may feel discouraged from applying, expecting that they wouldn't be welcome.

According to a report today from The Buffalo News, the landlord, without admitting liability, signed a settlement agreement with the New York State Division of Human Rights agreeing to pay $1,000 for the alleged bias in his ad.

Interesting to note:

• While under investigation for the offending ad, the landlord reportedly made discriminatory statements to testers in violation of the FHA's ban on race and familial-status discrimination. One white tester claims the landlord told her "there are no coloreds here... I hope your husband isn't black," and two testers reported that the landlord asked about their children.

Fair Housing Month: Why Not Everyone Is Celebrating

It's Fair Housing Month, but not everyone is celebrating. There's no question that the Fair Housing Act (FHA) has proven itself over the past 42 years as a landmark piece of legislation that has helped thousands of victims of illegal housing discrimination across the United States. But, even after two significant amendments, the FHA protects people based on only seven protected classes — race, color, religion, national origin, sex, disability, and familial status.

If you think that covers a lot of situations, you're right. But many individuals, advocacy groups, and politicians argue that the law doesn't go far enough. Several states, cities, and towns have succeeded in extending fair housing protection by including additional protected classes in their own anti-discrimination laws, such as:

• sexual orientation;
• age;
• marital status;
• source of income;
• military status;
• personal appearance; and
• political affiliation.

(For a scrollable list of additional protected classes in the 50 states plus the District of Columbia, check out the "Protected Classes Tool" at fairhousingresources.com.)

Do you believe the FHA should be amended to include additional protected classes? If so, which protected classes would you like to see added? How fair is fair housing if many types of housing discrimination are still legal under federal law?

What do you think?

Return tomorrow for the thirtieth and final part of this special "Fair Housing Month" feature at Fairhousingblog.com.

Fair Housing Month: First Announced HUD Charge Covers Most FHA Protected Classes

Yesterday, I blogged about how the Fair Housing Act (FHA) protects people against housing discrimination based on seven so-called "protected classes." In the U.S. Department of Housing and Urban Development's (HUD) first announced charge of Fair Housing Month, a King County, Washington landlord, property management company, and on-site manger will face an administrative law judge to defend themselves against alleged violations of four of the FHA's seven protected classes: race, color, national origin, and familial status.

According to HUD's Charge of Discrimination, issued on April 1 and announced on April 6, the owners and managers allegedly engaged in a pattern of unfair treatment of blacks, Hispanics, Asian-Americans, and families with children at their five-building apartment complex in Renton.

Testers at the property allegedly revealed that the manager:

• offered the same apartment at a higher rent to black and Hispanic testers than to a white tester;
• offered earlier availability dates and apartments with newer amenities to white testers as compared to black testers;
• asked Hispanic applicants if they illegally purchased Social Security cards or green cards;
• made several discriminatory statements to minority testers, including telling a black tester that she wouldn't tolerate loud parties or "weed smoking on the balcony" and that he was "one of the good ones" because he wears his pants "up on his buttocks";
• said that children couldn't play ball, skateboard, or ride bicycles on the complex's grounds and would need to go to a park.

HUD's investigation also allegedly found evidence that the manager:

• directed her staff to show minority applicants apartments with less desirable amenities, such as older carpet, countertops, and appliances;
• steered minority applicants away from the building in which she lived;
• banned her assistant from speaking Spanish to Hispanic applicants, saying, "No, no, no. None of that sh*t. We speak English here";
• told one Asian-American tenant to "go back to India" if he can't use the appliances properly and said to another, "For God's sake, you come from a country with no running water and cook over an open flame."

Return tomorrow for the ninth part of this special "Fair Housing Month" feature at Fairhousingblog.com.

Fair Housing Month: What Are 'Protected Classes'?

Fair Housing Month commemorates the passage of the Fair Housing Act (FHA), a law that protects people against housing discrimination based on certain characteristics, commonly known as "protected classes."

Today, the FHA, as amended, includes seven protected classes:

• race
• color
• religion
• national origin
• sex
• disability
• familial status

What about other protected classes, such as sexual orientation? What's the difference between race and color? What does familial status cover, exactly?

Get the answers to these and other frequently asked questions on this topic by reading my "Protected Classes FAQ" for About.com.

Return tomorrow for the eighth part of this special "Fair Housing Month" feature at Fairhousingblog.com.

On MLK Day, Considering the Future of the Fair Housing Act

Today, the United States celebrates the life of Martin Luther King, Jr., whose work as a civil rights leader led to the passage of Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act (FHA). President Lyndon Johnson signed the Act into law on April 11, 1968, one week after Dr. King's assassination.

As originally passed, the FHA banned discrimination based on four protected classes — race, color, religion, and national origin. The Housing and Community Development Act of 1974 added sex to the list, and the Fair Housing Amendments Act of 1988 brought the number of protected classes to seven, with the addition of familial status and handicap (more commonly referred to as "disability").

For the past roughly 22 years, the number of protected classes under the FHA has remained at seven. Will the FHA ever be amended again to add more protected classes? If so, which ones, and when? Should the FHA be amended?

What do you think?

LANDMARK: Landlords Agree to Largest-Ever DOJ Rental Housing Discrimination Settlement

The U.S. Department of Justice (DOJ) announced it filed a proposed consent order to obtain the largest-ever settlement in connection with a rental housing discrimination lawsuit.

Los Angeles Clippers owner and landlord Donald Sterling, his wife Rochelle Sterling, the Sterling Family Trust, and The Korean Land Company, L.L.C. have agreed, without admitting liability or wrongdoing, to pay $2.725 million to settle allegations that they violated the Fair Housing Act by discriminating based on race, national origin, and familial status at apartment buildings they own and manage in Los Angeles.

The complaint, filed in August 2006, alleged that the defendants discriminated against non-Korean prospects and tenants in connection with renting apartments in the Koreatown section of Los Angeles; discriminated against black prospects and tenants in connection with renting apartments in the Beverly Hills section of Los Angeles; and discriminated against families with children throughout the buildings they own or manage in Los Angeles.

In addition to the record monetary award and civil penalty, the consent order, if approved, would require the defendants to obtain fair housing training for employees and monitor their compliance, and maintain non-discriminatory practices and procedures.

The defendants own and manage approximately 119 apartment buildings comprising 5,706 apartments in Los Angeles County. This settlement would also resolve two related lawsuits filed by former tenants at one of their properties.

Bowling Green Votes Unanimously to Expand Fair Housing Protections

On Monday night, the city council of Bowling Green, Ohio voted unanimously to modify the city's fair housing ordinance to protect people based on additional protected classes. The ordinance will take effect 30 days after it was signed, however some expect the issue to arise again as a referendum, according to the Sentinel-Tribune.

Bowling Green's protected classes will include the following: race, color, religion, national origin, gender, gender expression, gender identity, sex, pregnancy, age, sexual orientation, creed, ancestry, disability, military status, veteran status, marital status, family status, physical characteristics, HIV-status and genetic information.

The ordinance also establishes a new complaint process that focuses on conciliation. Next month, the Ohio legislature is expected to consider expanding the state's list of protected classes.

Which protected classes would you like to see in your state, city, or town? Do you think the federal law will be amended in your lifetime to include any additional protected classes?

What do you think?

Interesting to note:

• In addition to expanding the list of protected classes, the council voted to remove "political ideology" as a protected class, for reasons unclear. Perhaps it was because of the inclusion of "creed," which is arguably more comprehensive.


• The council also approved a similar ordinance for workplace discrimination, though not by a unanimous vote.

HUD Goes Polyglot With Expanded LEP Site

The U.S. Department of Housing and Urban Development (HUD) announced this month that it expanded its Limited English Proficiency (LEP) Web site to offer several key housing-related documents in 12 languages. This initiative follows Executive Order 13166, which requires government agencies with federal funding to ensure that people with limited language skills have access to government programs and services.

In addition to English, visitors to the site can access versions of many documents in the following languages: Amharic, Arabic, Armenian, Cambodian, Chinese, Farsi, French, Korean, Portuguese, Spanish, Tagalog, and Vietnamese.

Is translating documents into more languages a good idea so that a greater number of Americans can read them and learn about important government programs from which they may benefit? Or should people be expected to understand the documents as they originally appear in English? In other words, is this a worthwhile initiative of inclusion, or an unnecessary expenditure of time and taxpayer money?

What do you think?

State's Fair Housing Awareness Campaign Omits Own Fair Housing Law

The New York State Division of Human Rights has been running a statewide ad campaign to promote public awareness of housing discrimination laws. (I spotted them for the first time back in November.) Each ad focuses on a different protected class under the Fair Housing Act (FHA) and then lists them all, stating: "Housing discrimination based upon race, color, national origin, religion, sex, family status, or disability is unlawful."

However, as Gay City News pointed out last week, the ads don't tell the whole story. Missing from the ads is a list of the additional protected classes included under New York's housing discrimination law, which include sexual orientation, age, and military status, among others. Apparently, the U.S. Department of Housing and Urban Development (HUD), in giving New York $500,000 in funding for the ad campaign, required that the ads list the FHA's protected classes but didn't limit it to just that. However, a HUD official reportedly pointed out that New York's omission of the state information is consistent with how other states have spent federal dollars.

In light of these developments, New York is planning to spend the remaining $12,000 it has in federal funds for ads aimed at the lesbian and gay community that promote the fact that New York also bars housing discrimination based on sexual orientation, according to Gay City News.

Should New York have promoted awareness of its own housing discrimination law along with the federal law?

What do you think?