Looking for Discrimination in All the Wrong Places

The Iowa Civil Rights Commission was happy to announce last week that its search for evidence of familial status discrimination came up empty.

After randomly selecting and then reviewing online and newspaper advertisements for properties in six communities within the state, the Commission interviewed by phone the 35 property owners and managers behind the ads and found that they didn't exclude families with children.

This report builds on two studies the Commission performed in 2008. The first study found that fewer than 1% of 9,646 housing advertisements were likely discriminatory, with 90% of those based on familial status. The second study tested familial status discrimination in Waterloo and found two possible instances (as well as five possible instances of racial steering).

The Commission now plans to turn its attention to testing for other types of discrimination under the Fair Housing Act and state law, including discrimination based on race, national origin, and disability.

Federal Government Takes Aim at LGBT Housing Inequality

The Obama administration recently announced proposals that would give individuals greater rights when it comes to their choice of housing, regardless of their sexual orientation or gender identity.

Chief among these initiatives is a proposed rule aimed at ensuring that the lesbian, gay, bisexual, and transgender (LGBT) community is included in federal housing programs.

This would be accomplished by:

• making clear that the term "family," as used to describe eligible beneficiaries of public housing and voucher programs (which currently provide assistance to over three million families), includes LGBT applicants;
• requiring program participants to comply with state and local fair housing laws that ban discrimination based on sexual orientation or gender identity; and
• specifying that any FHA-insured mortgage loan must be based only on the credit-worthiness of a borrower, without regard to characteristics such as sexual orientation and gender identity.

In addition to the proposed rule, HUD announced it will commission the first-ever national study of discrimination against members of the LGBT community in both the rental and sale of housing.

Missing from the current set of proposals is an amendment to the Fair Housing Act to add sexual orientation and gender identity as protected classes. Will this come next? Should it?

What do you think?

Paying Dearly for Fair Housing Violations, Despite Good Intentions

You might think that a housing provider that markets itself to people with severe disabilities wouldn't likely be the defendant in a lawsuit alleging violation of the Fair Housing Act's (FHA) ban on disability-based discrimination.

But not only has such a provider — New Horizons Village of Unionville, Connecticut — been the subject of a disability-discrimination complaint, it has now reached a settlement with the Connecticut Fair Housing Center (CFHC) and the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities, agreeing to pay a whopping $600,000 in damages and attorneys' fees to a former tenant who claimed the provider's policies were discriminatory.

The tenant's issue was with New Horizons' policy of reviewing applicants' medical records to determine whether they can live independently, according to CFHC. The tenant argued that this policy amounts to illegal discrimination based on the type and severity of a disability. Earlier this year, a federal court agreed, holding that using applicants' medical records to decide which ones are "too disabled" to live independently is discriminatory. The court also noted that New Horizons further discriminated by sharing applicants' private medical information with other tenants.

In addition to the monetary part of the settlement, New Horizons has agreed to revise its tenancy requirements and no longer request applicants' private medical records. Going forward, New Horizons will reportedly determine the need for personal care assistance on a case-by-case basis, and requests for additional personal care assistance by applicants and tenants will be treated as requests for reasonable accommodations under the FHA.

Regarding New Horizons' seemingly good intentions, Judge Janet Bond Arterton, who issued the federal court's opinion, pointed out that "[a] discriminatory housing practice is still unlawful even if made with good intentions if it denies housing to individuals with disabilities based on their disabilities." Laflamme et al. v. New Horizons, Inc. et al., 605 F. Supp. 2d 378 (D. Conn. 2009) (emphasis added).

How much do you think good intentions should count in a fair housing defense? When it comes to alleged violations of the FHA's ban on disability-based discrimination, should a housing provider be treated more favorably if its mission is to help people with severe disabilities?

What do you think?

How Do You Pay Rent While in a Coma?

If you're an apartment tenant, you know that paying your rent late or not at all can get you evicted. But what if you normally pay the rent in full and on time, and then a sudden, disability-related coma prevents you from sending a check to your landlord on time? Should the landlord cut you a break?

A tenant in Palo Alto, California found herself in exactly this situation last year -- and got evicted. But now, thanks to a settlement with her landlord reached via a fair housing argument, the tenant is happily back in her building.

According to the San Jose Mercury News, the tenant's daughter let the landlord know about her mother's condition within a week after she was rushed to the hospital. Although the landlord reportedly indicated being okay with getting the rent late, the landlord wasted no time in starting the eviction process. The day she was released from the hospital, the tenant got a money order for the full amount of the rent, but the landlord wouldn't accept it. Then, after not receiving the notice of her court hearing, the tenant learned that a judge ordered her to vacate her apartment.

With a rental history now marred with an eviction, the tenant eventually found a much smaller apartment in another town, at a much higher rent. In addition to the financial difficulties this caused, the move to another town also prevented visits with her daughter, who can't drive due to a visual impairment, and grandchildren.

Fortunately for the tenant, she enlisted the help of Project Sentinel, a local non-profit housing counseling agency, which achieved a settlement by arguing that the landlord violated the Fair Housing Act's (FHA) ban on disability-based discrimination by not accepting the late rent payment. Doing so would have been a "reasonable accommodation," which the FHA requires landlords to make when tenants need such accommodations for a disability.

Without admitting any liability, the landlord agreed to make things right by:

• paying the tenant $32,000;


• renting another one-bedroom apartment in the building to her at no more than $500 per month for five years, affording her the opportunity to visit her children and grandchildren;


• helping her repair her credit rating, which was damaged by the eviction; and


• enrolling in regular fair housing training for five years at its own expense.

Is this a fair outcome, or is it too little, too late? Have you or anyone you know been in a situation where you had trouble paying the rent because of a disability?

Not Complying And Not Caring

If you're under investigation by the federal government for violating a law, saying that you don't care about the law isn't exactly going to exonerate you or encourage the government to see your side of things.

Recent proof of this is the U.S. Department of Housing and Urban Development's September 15, 2009 filing of a Charge of Discrimination against a Barberton, Ohio landlord for alleged violations of the FHA's ban on housing discrimination based both on sex and familial status.

The landlord's questionable act was the posting of an ad on Craigslist for a rental that "MAKES A VERY NICE APT FOR SINGLE GUY TENANT." Fair Housing Contact Service, Inc., a local agency that enforces housing discrimination laws, ultimately filed a complaint with HUD, which then had one of its Equal Opportunity Specialists (EOS) interview the landlord.

According to the Charge, when the EOS explained the provisions of the FHA to the landlord and indicated that the language in the ad may run afoul them, he stated, "I don't care about the Fair Housing Act." With a first impression like that, the landlord helped neither the EOS nor himself, as he didn't give the EOS any reason to take him seriously or give him the benefit of the doubt on the substantive issues.

As for the substantive issues, the landlord's defenses appear weak. He explained that he wrote "single" because he felt the apartment was too small for a family (with a child or children). However, the fact that he rented the apartment to a couple (and not just a "single guy tenant") makes it tough to argue that the apartment was too small to be occupied even by a family of one adult and one child. The landlord also claimed that the neighborhood was unsafe for children and that this justified his exclusion of families. If you follow his logic, however, then no children should be allowed to live anywhere in the neighborhood due to safety concerns.

In issuing its Charge, HUD concluded that "an unknown number of prospective tenants with children and/or who are female were discouraged from seeking a rental opportunity." HUD now seeks a $16,000 civil penalty plus compensatory damages against the landlord. In reviewing the facts of the case to decide a fair outcome, the Administrative Law Judge will know she's dealing not just with a landlord who made a mistake and didn't comply with the law, but with a landlord who doesn't care about that law -- and who, self-injuriously, makes sure the law's enforcers know it.

Racism Again Proves Costly As a Marketing Strategy

If having no black tenants at your apartment complex is your selling point, fire your marketer. That's the message the U.S. Department of Justice (DOJ) is sending to landlords by going after the owners and operators of a Davie, Florida apartment complex for refusing to rent to black people — and boasting about their policy to prospective white tenants.

Sound familiar? That's because the same type of racial marketing strategy was allegedly recently employed at an apartment complex in Alabama, leading the DOJ to file a fair housing complaint against the complex's owner, manager, and maintenance employee (see "Using Racism to Rent Apartments," July 24, 2009).

The owners and operators of the Florida complex have agreed to settle, in light of evidence gathered by DOJ testers that indicate the complex violated the Fair Housing Act (FHA) by:

• Directing the property managers not to rent to applicants who even "appear" to be black;
• Telling white applicants that an advantage of living at the complex is its lack of black tenants;
• Encouraging white prospects to apply for an apartment while discouraging black prospects from doing the same;
• Offering to waive costs such as the application fee only for white prospects.

Under the August 27, 2009 Consent Decree, the complex must pay $115,000 to identified "aggrieved persons," plus up to $25,000 in compensation to additional discrimination victims who still may come forward — as well as a $74,000 civil penalty. The complex has also agreed to have its employees undergo fair housing training and take other steps to prevent violations in the future.

Reshaping of Justice Department Implies Increased Fair Housing Enforcement

A report in today's New York Times indicates a significant shift by the Obama administration in the role of the U.S. Department of Justice's (DOJ) Civil Rights Division.

Attorney General Eric Holder aims to shine the Division's enforcement spotlight on housing and other areas, such as employment, where minorities have been disproportionately treated. The prior administration preferred to focus on individual cases in which there was evidence of intentional discrimination.

In addition to the Division's change in focus, the White House has proposed hiring 50 more lawyers to add muscle to the civil rights enforcement arsenal.

The DOJ and the U.S. Department of Housing and Urban Development (HUD) are the two federal agencies charged with enforcing the Fair Housing Act (FHA).

Do you agree with this shift in the Division's role? Is the hiring of additional civil rights attorneys an initiative that is long overdue, or is it an inappropriate expenditure of taxpayers' money?

What do you think?

What Would the Neighbors Think?

Here's a case that shows you needn't prove a person is a racist in order to successfully claim that he violated the Fair Housing Act's (FHA) ban on racial discrimination.

A New York City landlord allegedly refused to rent to people who weren't white because, he claimed, the neighborhood was white and that's the way everyone wanted it.

The Department of Housing and Urban Development (HUD) recently charged this landlord (and his brother, the co-owner) with discrimination based on race, color, and national origin, on behalf of two fair housing agencies, the National Fair Housing Alliance (NFHA) and Long Island Housing Services Inc. (LIHS). According to the Charge, when each of these agencies sent minority testers to inquire about vacancies, the landlord repeatedly asked about their racial and ethnic background and made discriminatory statements. For example, the landlord offered what he thought was good justification for his anti-white bias, explaining that renting to a black person would lead to neighbors' complaints.

A HUD administrative law judge will hear the case.

Is the landlord's justification — that he's bound by the neighborhood's supposed desires and prejudices — valid? Or, do you think the landlord's is clearly illegal, given that his statements restrict housing choices, and that his reasoning runs counter to the policy behind the FHA itself?

What do you think?

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.

How to Police Online Advertising

When President Johnson signed the Fair Housing Act (FHA) into law in 1968, the government couldn't imagine that just one generation later, it would be so easy and inexpensive for people to place housing advertisements that would reach a national audience. Thanks to the Internet, thousands of new ads appear on Web sites each day. Not surprisingly, this leads to several thousand new instances of housing discrimination each year.

Given that the FHA bars discrimination in advertising, how should discriminatory online advertising best be policed? The traditional route, in which the U.S. Department of Housing and Urban Development (HUD), the Department of Justice (DOJ), and fair housing agencies pursue individual offenders, seems like an unrealistic expenditure of time and resources, one which would require a much larger budget and staff than what's currently in place.

An alternative is to make the owners and operators of the Web sites that collect and publish advertisements responsible for identifying and rejecting ads that appear to violate the FHA, and liable for posting any that do.

The National Fair Housing Alliance (NFHA) yesterday called on Congress to update the law for the 21st century. Newspapers have been held liable under the FHA for publishing discriminatory housing advertisements, but a loophole in the Communications Decency Act of 1996 has held Internet advertising providers to a different standard, helping them avoid liability. The NFHA recommends closing this loophole by treating all ad providers the same.

The NFHA issued its call on the heels of a lawsuit filed last month against American Classifieds, LLC, the nation's largest classified advertisement publisher, for publishing ads in 17 states saying that children aren't allowed, an apparent violation of the FHA's ban on familial status discrimination.

To read the NFHA's complete report ("FOR RENT: NO KIDS! How Internet Advertising Requirements Perpetuate Discrimination") on this interesting and timely issue, click here.

A Monument to Fair Housing

District of Columbia Congresswoman Eleanor Holmes Norton announced the introduction of a bill this week to create a lasting tribute to the Fair Housing Act (FHA) by erecting a physical monument in Washington, D.C. According to the Congresswoman, the idea for a monument to fair housing came about by "unusual efforts" of the real estate industry, which comprises the very people who are bound by the FHA.

Congresswoman Norton's bill authorizes the Fair Housing Commemorative Foundation to raise funds for a monument that would be built in adherence to the requirements of the Commemorative Works Act of 1986.

Is a monument in our nation's capital a fitting way to memorialize the FHA? Also, do you think a monument that pays tribute to a law and its accomplishments might also promote increased compliance with that law, by shining a greater spotlight on it?

What do you think?