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

Landlords Settle Vicarious Liability Claims in Sexual Harassment Lawsuit

The U.S. Department of Justice (DOJ) settled claims against two landlord-defendants in connection with a lawsuit that contends the property manager they hired subjected female tenants at their Montgomery, Alabama apartment buildings to unwanted verbal and physical sexual advances, granted and denied tangible housing benefits based on gender, and took adverse action against female tenants when they refused or objected to his advances.

Although the landlords themselves didn't directly discriminate or sexually harass any tenants, the DOJ in its amended complaint argues that the landlords are vicariously liable under the Fair Housing Act (FHA) for the acts of their manager and agent, and also knew or should have known of the manager's discriminatory conduct but "failed to take reasonable preventive or corrective measures."

The partial consent decree, filed on May 12, requires the landlords to pay $33,000 into a victim fund to compensate women and $2,000 in a civil penalty. The landlords, who admitted no liability as part of the settlement, may continue their rental property business as long as they establish and follow non-discriminatory tenancy procedures, undergo fair housing training, and file reports with the government.

Do you believe these landlords got a fair deal? Should they be allowed to continue their rental property business?

What do you think?

HUD Adopts Stronger Stance Against Domestic Violence

Tenants who are denied or evicted from housing as a result of domestic violence may have grounds to file a discrimination complaint under the Fair Housing Act, according to the U.S. Department of Housing and Urban Development (HUD), the primary federal agency charged with enforcing the FHA.

HUD recently issued guidance in the form of a memorandum to FHEO headquarters and field staff, pointing out that while the Violence Against Women Act (VAWA) offers some protections to victims of abuse who experience housing discrimination, the FHA authorizes HUD to investigate whether a tenant's denial or eviction violates the FHA because of discrimination based on sex or another protected class.

In its guidance, HUD suggests that the following examples may yield a viable claim under the FHA:

• A landlord who refuses to accept women with a history of domestic violence because they may return to abusive men;
  
  
• A landlord who evicts women for the violent acts of their abusers; and
  
  
• A "zero-tolerance" policy for criminal activity, under which an entire household may be evicted for the criminal act of one member, as it may have a disparate impact on women because they are the overwhelming majority of domestic violence victims.

Do you believe this new guidance will help protect domestic violence victims from losing their homes? What more, if anything, should the government do to achieve this goal?

What do you think?

Fair Housing Month: April Is Also National Sexual Assault Awareness Month

On April 1, President Obama signed a proclamation making April National Sexual Assault Awareness Month, a time to "recommit ourselves not only to lifting the veil of secrecy and shame surrounding sexual violence, but also to raising awareness, expanding support for victims, and strengthening our response."

It's fitting that National Sexual Assault Awareness Month coincides with Fair Housing Month because sexual assault or harrassment is a form of sex discrimination, which the Fair Housing Act (FHA) bans.

For a recent example, just look at today's announcement by the U.S. Department of Justice (DOJ) about a complaint it filed yesterday against a New York City apartment building super and landlord.

The super allegedly sexually harrassed many female tenants at three apartment buildings over a period of years. According to the complaint, the super engaged in sex-based discrimination through his:

• unwanted verbal sexual advances, such as repeatedly soliciting sexual favors in exchange for reduced rent;
  
• unwanted sexual touching, such as grabbing;
  
• unwanted sexual language, including yelling obscenities to female tenants who didn't comply with sexual demands;
  
• conditioning the terms of tenancy on the granting of sexual favors;
  
• attempting to enter tenants' apartments while inebriated, demanding sex;
  
• granting and denying tangible housing benefits (such as mail delivery and making repairs) based on sex; and
  
• taking adverse action (such as threatening eviction) against female tenants who refused or objected to his sexual advances.

The landlord was also named in the lawsuit for having allegedly been aware of the super's sexual harrassment and not having taken "any meaningful steps" to investigate his tenants' multiple complaints of sexual harrassment. The DOJ also identifies the super as a registered Level 3 (high-risk) sex offender in the complaint.

The super and the landlord must now defend themselves in court against the DOJ, which seeks monetary damages, civil penalties, punitive damages, and injunctive relief.

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

'Victim Fair Housing Act' Aims to Distinguish Between Undesirable Tenants and Innocent Victims

Each year, it's estimated that millions of men and women in the United States fall victim to domestic violence. When such a victim lives in rental housing, a violent incident or series of incidents could force the tenant onto the street. Not all landlords are interested in distinguishing between perpetrator and victim but simply view violent acts on the premises as a ground for eviction. As a result, a tenant who becomes a domestic violence victim often suffers in a second way, losing her home due to circumstances beyond her control.

Wisconsin has decided to legislate a hopeful end to this nightmare by passing a "Victim Fair Housing Act." The Act, which went on the books earlier this month, amends the state's fair housing law to ban housing discrimination based on someone's "status as a victim of domestic abuse, sexual assault, or stalking." Most importantly, the law offers such victims a defense against eviction, according to a report from The Post-Crescent.

Are you in favor of Wisconsin's legislative measure, and do you think it will prove effective in addressing this issue? Should the federal Fair Housing Act be amended to protect victims of domestic violence from losing their housing?

What do you think?

For Property Manager, DOJ Claims Tenants Were There for the Touching

Yesterday, the Department of Justice (DOJ) filed a complaint against a man who managed several mobile homes in the West Memphis, Arkansas area, alleging a pattern or practice of sexual harassment in violation of the Fair Housing Act's ban on sex-based discrimination. If the allegations in the complaint are true, then it's clear this is a man who used his position to take advantage of tenants and prospective tenants repeatedly, interfering with their housing and their dignity while thinking nothing of invading their privacy and their person.

The complaint describes the property manager's acts of sexual harassment in strong terms, labeling it as "severe, pervasive, and unwelcome." The man, whose name ironically is "Hurt," is accused of doing the following and more on a regular basis:

• entering female tenants' homes without notice or consent
• touching female tenants in an unwelcome sexual manner
• making verbal sexual advances
• taking steps to evict female tenants who refuse his sexual advances

The DOJ is also after the property manager's wife, who owned or co-owned the mobile homes with him and, the DOJ argues, "knew or should have known" about the sexual harassment but "failed to take reasonable preventive or corrective measures."

Should sexual harassment be treated with harsher penalties than other forms of housing discrimination? If a landlord, property manager, or other housing professional is found to have engaged in severe, repeated sexual harassment, should he or she be barred from managing residential properties going forward?

What do you think?

Unwelcome Advances Lead to an Unwelcome Complaint

On January 29, 2009, the DOJ filed a fair housing complaint in a federal district court against both the landlord and manager of 11 single-family dwellings in Ypsilanti, Michigan, alleging "severe, pervasive, and unwelcome sexual harassment."

For at least the last few years, the manager allegedly made unwanted verbal sexual advances, entered female tenants' apartments without permission or notice, granted and denied tangible housing benefits based on sex, and took adverse action against female tenants when they refused or objected to his sexual advances. Although the landlord apparently didn't engage in such conduct, the DOJ believes he should also be held liable because the manager acted as his agent and because the landlord "knew or should have known" about the manager's conduct yet did nothing to stop it.

Assuming the landlord himself didn't commit sexual harassment, should he be held liable in this type of situation? If so, should it be to the same extent as the manager? Should the landlord's liability depend on whether or not he actually knew what the manager was doing?

What do you think?

MUST-READ: HUD Guidance on Sexual Harrassment

On November 24, 2008, the U.S. Department of Housing and Urban Development (HUD) issued guidance on what constitutes sexual harassment under the Fair Housing Act. The Guidance consists of 14 helpful Q&As, covering topics ranging from same-sex sexual harrassment to a landlord's or property manager's liability for harrassment by employees.

Read the full text of the new HUD guidance (dated November 17, 2008) here or on the "Must-Reads" page of Fair Housing Helper.

LANDMARK: Ohio Landlord Agrees to Pay $1 Million to Settle Sexual Harrassment Suit

A Cincinnati, Ohio landlord has agreed to pay $1 million — including $890,000 in compensation to 12 female tenants "for personal injury and emotional distress" and $110,000 as a civil penalty — for admittedly violating the Fair Housing Act's (FHA) ban on sex discrimination. The Department of Justice (DOJ) is calling the September 4, 2008 consent judgment "the largest monetary settlement the Department has ever obtained in a case alleging sexual harassment violations under the FHA."

According to the DOJ complaint, the landlord subjected these tenants to unwanted verbal sexual advances and touching, entered their apartments without notice or consent, granted or denied benefits in return for sexual favors, and took adverse action against tenants who refused or objected to his sexual advances.

Interesting to note:

Since January 1, 2001, the DOJ's Civil Rights Division has filed 259 cases to enforce the Fair Housing Act, including 27 cases involving alleged sex-based discrimination, according to the DOJ press release.