Transcript A Practical Guide to Avoiding Fair Housing Litigation

A Practical Guide to Avoiding Fair
Housing Litigation

Let’s Avoid a Lawsuit, Shall We?
Heidi Olguin & Mona Hathout,
Progressive Management Resources, Inc.
A Compliance Consulting Firm
PMR - Who We Are
• Compliance Consulting Firm
• Monitor National & Local Fair Housing &
Employment Consent Decrees
• Litigation stems from DOJ, CA Dept. of
Corp., CA Atty. General’s, EEOC & private
cases
• Policies, Training, Testing and Investigations
• Learn from our Clients’ Missteps
TOP 5 WAYS TO END UP IN A
FAIR HOUSING LAWSUIT
5. Upper MGT Unfamiliar w/ Fair Housing law
4. No Fair Housing Policies in Place
3. No Staff Training
2. Not Managing Employee Behavior
1. Not Properly Responding to Complaints
Outline
•
•
•
•
Overview of Fair Housing Law
Current Litigation
Fair Housing Policies
Handling Complaints & Managing
Employee Behavior
Part 1
OVERVIEW OF
FAIR HOUSING LAW
Federal Fair Housing Laws
•
•
•
•
•
•
•
•
Title VIII of the Civil Rights Act of 1968 (Fair Housing Act)
Title VI of the Civil Rights Act of 1964
Section 504 of the Rehabilitation Act of 1973
Section 109 of Title I of the Housing and Community
Development Act of 1974
Title II of the Americans with Disabilities Act of 1990
Architectural Barriers Act of 1968
Age Discrimination Act of 1975
Title IX of the Education Amendments Act of 1972
The Fair Housing Act
Title VIII of the Civil Rights Act of 1968
What’s covered?
• Housing Transactions: sale, rental, financing,
insurance, appraisals
• The Fair Housing Act (FHA) covers MOST housing!
• FHA does not cover:
– owner-occupied buildings with 4 or less units,
– single-family housing sold or rented w/o a broker,
– housing operated by organizations/private clubs that limit
occupancy to members
• Note: Advertising Guidelines apply to all properties
The Fair Housing Act
What’s Prohibited
•DISCRIMINATORY ACTIONS
•
•
•
•
•
•
•
•
•
•
Refusing to rent or sell
Refusing to negotiate
Making housing unavailable
Setting different terms/conditions/
privileges
Providing different services or
facilities
Falsely denying housing is available
Blockbusting
Denying access to or membership in a
facility or service
Threatening, coercing, intimidating or
interfering with FH rights
Advertising preferences
based on
PROTECTED CLASSES
Race
Disability
National Origin
Familial Status
Color
Religion
Sex
State Fair Housing Laws
Many states have their own fair housing laws. For
example, California’s “Fair Employment and Housing
Act” (FEHA) includes these protected classes:
•
•
•
•
•
•
•
Race
Color
Religion
National Origin
Ancestry
Sex
Disability (including
HIV/AIDS)
• Gender Identity and
Gender Expression
• Sexual Orientation
• Marital Status
• Familial Status
• Source of Income
• Medical Condition
• Genetic Information
• Any arbitrary &
intentional
discrimination on basis
of personal
characteristics similar to
those listed above
Special Fair Housing Topics
Persons with
Disabilities
Familial Status
Sexual Harassment
Fair Housing &
Individuals with Disabilities
• FHA provides additional protections to people with
disabilities to ensure opportunity to fully enjoy their dwelling
& common spaces: Reasonable Accommodations &
Reasonable Modifications.
• How is disability defined?
– Physical or mental impairment that substantially limits 1 or more
major life activities
– Having a record of such a disability or
– Being regarded as having such a disability
Fair Housing &
Individuals with Disabilities (cont’d)
What is a Reasonable Modification?
• Physical changes to premises (apartment unit, common
spaces, or parking areas)
• Tenant generally responsible for paying for the modification
• Can require that work be done in compliance with necessary
building codes/workmanlike manner.
• Limited circumstances: landlord may require the tenant to
restore the unit to its original state when the tenant leaves
What is a Reasonable Accommodation?
• Reasonable accommodations are changes to rules and
policies.
Handling Requests for Reasonable
Accommodations & Modifications
IMPORTANT CONCEPTS:
• Case by case – each one unique
• Verifying Disability and Need
• Determine Reasonableness
• Communicating with the Requester
• Interactive Process
• Documentation
Examples of
Reasonable Accommodations
• Allowing assist animals
• Explaining lease/property rules
• Reading notices to the tenant
• Showing resident how to use
appliances in the apartment
and common use areas
• Assisting with application
• Allowing for reserved parking
• Allowing caregiver
• Adjusting rent due dates
• Allowing unit transfers
• Providing rent reminders
• Moving monthly resident
meetings to an accessible
location
• Allowing extensions of time (for
correcting problems or moveouts)
Examples of
Reasonable Modifications
•
Widening doorways
•
•
Allowing grab bars in the
bathroom
Extra lighting outside next to the
front door
•
Visual alarm system on smoke
detectors
•
Making outside door lock or
security locks simpler
•
Providing non-slip, color
contrasting strip to outside stairs
•
A door bell flasher
•
Allowing a ramp to be built
•
Removing protruding objects
from outside pathways
•
Wrapping the underneath sides
of pipes in the kitchen and
bathroom with insulation
Denying a RA/RM Request
• Basis for Denial
– No Disability
– Undue financial or administrative burden
– Alters the nature of your business
– Direct Threat
• How should you deny? – Carefully!!
• Interactive Process
Fair Housing &
Accessibility Standards
• FHA: Properties built after March 1991
– 7 Accessibility Standards
• Title III of ADA -- Places of public
accommodations (front office, public parking)
must be built in compliance with “ADAAG”
(Accessibility Guidelines)
– Properties built before January 1993 removal/minimization of barriers (technically
feasible and readily achievable)
Fair Housing & Familial Status
•Having in the household anyone that is:
–Under 18 living with a parent or legal custodian
–Pregnant
–Securing legal custody of someone under 18
Fair Housing & Familial Status
Common Problems/Mistakes
• ‘No Children’ Policy (formal or informal)
• Segregating families (buildings, sections, floors)
• Demanding children of opposite sex have separate
bedrooms
• Refusing to rent based on risks/dangers (lead paint,
steep steps, located near train tracks)
• Inquiring about pregnancy, childcare arrangements,
or # of children
• Charging extra for children (per person charges)
Fair Housing & Sexual Harassment
• Sexual Harassment is PROHIBITED
– Unwelcome sexual advances or targeting a
group/individuals based on gender
• Two forms of Sexual Harassment:
– “quid pro quo” and
– “hostile environment”
• Duty to Act
Part 2
LIABILITY & CURRENT
LITIGATION
Current FH Litigation at DOJ –
Cases based on Race
•
•
•
•
•
•
•
•
2/4/14: US v. Wallschlaeger (S.D. Ill.), Race & Familial Status
1/8/14: US v. Stonebridge (N.D. Tex), Race & National Origin
1/12/13: US v. 61 Main Street Corp. (S.D.N.Y), Race & Color
9/30/13:US v. Housing Authority of the City of Ruston (W.D. La),
Racial Discrimination in placement of new residents
9/30/13: US v. S-2 Properties, Inc.(W D. Pa.), Race
9/30/13: US v. Wilson (W.D. Ky.), Race and Familial Status
8/15/13: US v. Highland Management Group, Inc. (D. Minn.),
Race and National Origin
8/1/13: US v. Hylton (D. Conn), Race
Current FH Litigation at DOJ –
Familial Status
• 1/30/13:
US v. Edwards (D. N.H.), Familial Status (prohibited
kids)
• 11/25/13: US v. Greenbrier Village HOA (D. Minn.), Familial
Status (rules)
• 11/4/13: US v. Bachmaga (E.D. Wis), Race and Familial Status
• 10/25/13: US v. Woodland Garden Apts, Familial Status (engaged
in pattern or practice of discrimination against families w/
children
• 9/30/13: US v. Zaremba Mgt Co. (N.D. Ohio), Familial Status
• 8/15/13: US v. Townhomes of Kings Lake HOA, Inc. (M.D. Fla.),
Familial Status (Occupancy Limits)
• 5/10/13: US v. Clarendon Hill Somerville (D. Mass.), Familial
Status (Denial)
• 4/17/13: US v. Magee (S.D. Miss.), Familial Status (Occupancy
Limits)
Current FH Litigation at DOJ Disability
• 1/8/14:
• 1/13/14:
• 12/12/13:
• 11/12/13:
• 11/18/13:
• 11/18/13:
US v. Allegro Apts. (E.D. Wis.) (Refusal due
to Assistance dog)
US v. East River Housing Corp. (S.D.N.Y.)
DeFiore v. City Rescue Mission (W.D. Pa)
(Refusal in shelter due to Assistance Dog)
US v. LCW Family Ltd. Partnership (D. Neb.)
(Refusal of an Assistance animal)
US v. Trinity Villas, Inc. (M.D. Fla.) Disability
(Refusal of Reasonable Accommodation
transfer)
US v. Wren (N.D. Ill.) Disability and Familial
Status
Disability Cases at DOJ - cont’d
• 11/15/13:
• 11/14/13:
• 10/30/14:
• 10/28/13:
• 7/ 1/13:
• 4/19/14:
• 3/27/13:
US v. Schimnich (D. Minn.) (Denial/Assist animal)
US v. The Whitacres (N.D. W.Va.) (Eviction based
on Assistance Animal)
US v. Gulf Shores Apts (S.D. Ala.) Disability and
Gender
US v. Rosewood Park Apartments (D. Nev.)
(Denial based on Assistance Animal)
US v. Barber (W.D. Wash.) (Not waiving "pet
deposit" for assistance animal)
US v. Univ. of Nebraska (D. Neb.) (Denying
Assistance Animal in Student Housing)
US v. Croom (D. N.M.) – RA refusal $200,000
Current FH Litigation at DOJ –
Gender / Sexual Harassment
• 10/3/13: US v. Toone (E.D. Tex.)
– Gender Discrimination
• 9/30/13: US v. VanderVennen (W.D. Mich.)
– Sexual Harassment
• 4/19/13: US v. Ferrante (D. Me.)
– Sexual Harassment
• 9/13/12: Hawecker and US v. Sorensen (E.D. Cal.)
– Sexual Harassment
A FEW CASES IN DEPTH
FH Issue that ALMOST went the Supreme Court:
DISPARATE TREATMENT
Township of Mount Holly v. Mount Holly Garden Citizens in
Action, Inc.
• Issue: Can disparate impact claims be brought under the Fair
Housing Act?
• Facts: Township wanted to demolish a housing community
primarily comprised of mainly African-American and Latino
low income residents and rebuild more expensive housing.
• 11 of 12 Federal Circuit Appeal Courts have held that the FHA
allows Disparate Impact suits, but Supreme Court has never
issued a finding on disparate impact in FH.
Landmark Disability Case
• June 25, 2012 -- Justice Department Obtains Landmark $10.5
Million Settlement to Resolve Disability-Based Housing
Discrimination Lawsuit
• Allegations: JPI Construction discriminated on the basis of disability
in the design and construction of multifamily housing complexes
throughout U.S.
• DOJ investigated and found accessibility barriers at various JPI
properties. Since 1991, JPI and its affiliates built 210 multifamily
properties in 26 states and the District of Columbia; trial involving 32
of JPI’s properties was scheduled to begin July 9, 2012.
Largest Individual FH Disability
Settlement by DOJ
• 12/27/10 – DOJ obtained $1.25 million settlement
with Warren Properties Inc., to settle allegations
that defendants violated Fair Housing Act by
refusing to grant a tenant’s requests for a
reasonable accommodation.
• Allegation: failing to permit a tenant with mobility
impairment to move to a ground-floor apartment in
a 196-unit apartment complex; resident
subsequently fell down the stairs and sustained
further injury.
Occupancy Policies
Lead to Discrimination Charges
• 4/24/13: United States v. Magee (S.D. Miss.)
– Allegations of discrimination against families with children
by refusing to rent a 3-bdrm home to woman w/ 4 four
children -- “too many children” under community’s
occupancy policy (set lower maximum number of children
than adults who could reside in each home).
• 8/15/13: United States v. Townhomes of Kings Lake
HOA, Inc. (M.D. Fla.)
– Allegations of discrimination against families with children by
maintaining and enforcing an unlawful occupancy limit policy
by threatening to evict a family w/ 6 kids from a 4-bdrm apt.
Other Fair Housing Cases of Note
• 9/13/12: Hawecker and United States v. Sorensen (E.D. Cal.).
– Allegation: defendant sexually harassed female tenants Consent
decree: judgment of $2,075,000 in monetary damages. Largest
monetary settlement in a sexual harassment suit brought by the
US DOJ under the Fair Housing Act.
• 1/8/14: United States v. Stonebridge (N.D. Tex)
– Allegation: persons of Middle Eastern and South Asian descent
were denied and those not denied were segregated into
designated buildings. Consent decree requires over $300,000 in
damages and penalties, staff training, adoption of fair housing
policies, and termination of the apartment manager.
DOJ Cases Based on Testing
• 8/15/13: Consent Decree in U.S. v. Highland Management
Group, Inc. (D. Minn.), alleging discrimination against
Somalis. Evidence developed by DOJ’s Fair Housing
Testing Program.
• 9/30/13: DOJ filed a complaint against S-2 Properties, Inc.(W
D. Pa.), alleging discrimination based on race. Evidence
developed by DOJ’s Fair Housing Testing Program.
• 2/4/14: DOJ filed a complaint in U.S. v. Wallschlaeger (S.D.
Ill.), alleging discrimination based on race and familial status.
Evidence developed by DOJ’s Fair Housing Testing
Program.
Fair Housing and VAWA
First HUD Settlement to address rights of domestic
violence survivors
• What is VAWA? The Violence Against Women Act of
2013 (reauthorized from 2005)
– protects individuals in federally subsidized housing
from discrimination because of status as survivors of
domestic violence, dating violence, sexual assault or
stalking.
• Allegation: Woman denied apartment because she
refused to provide her children’s Social Security
numbers (feared revealing their location).
• Under settlement, management company agreed to
adopt VAWA housing protections, pay monetary
damages and attorneys’ fees.
Fair Housing and Caregivers
January 29, 2014: Missouri Community Settles
Disability Discrimination Charge
• Disabled resident requested live-in caregiver
• Management refused -- Policy of 6 month
waiting period before adding anyone to lease
• Resident had no choice but to move
And last but not least, we can’t
forget about Donald Sterling!
Part 3
AVOID A LAWSUIT:
DEVELOP FH POLICIES
Why You need FH Policies
why does it matter?
• To Inform Employees & Set Expectations
• To Treat Applicants/Residents Consistently
• To Reduce Liability
Important FH Policies
1.
2.
3.
4.
General FH Non-Discrimination Policy
Reasonable Accommodations Policy
Occupancy Standards Policy
Rental Screening Policy
Policy 1:
FH Non-Discrimination Policy
•
•
•
•
•
•
•
Clear and Concise Language – Brief
Reflective of all Relevant Laws
Includes Complaint Process
Print in Large Format
Circulate to All (resident and employees)
Post Prominently
TRAIN
Sample Fair Housing Policy
Important
Elements:
• Laws
• Protected
Classes
• Prohibited
Actions
• Complaint
Process
Policy 2:
Reasonable Accommodations Policy
•
•
•
•
Clear Statement regarding Compliance
Define RA/RM
Process for Requesting
Process for Review
– always case-by-case
• Information about Denial
– INTERACTIVE Process – very important
Sample RA/RM Policy
Find sample and
policy on
NAA
handouts
Sample RA/RM Policy (cont’d)
Sample Manager Guidelines for
Handling RA/RM Requests
Important Guidelines:
1.) Handling Request
2.) Verifying
disability/need
3.) Reviewing the
request
4.) Communicating
5.) Documentation
6.) Service Animals
Sample Manager Guidelines for
Handling RA/RM Requests (cont’d)
Sample RA/RM Request Form &
Reply Letters
Sample
Forms
Check
Website for
MORE
Policy 3:
Occupancy Standards Policies
2 per bedroom generally reasonable
but may, in certain circumstances,
illegally discriminate against families
with children. HUD will consider:
•
•
•
•
•
Size of bedrooms and unit
Age of the children
Unit configuration
Other physical limitations of property
State and local law
Policy 4:
Rental Screening Policy
Based on objective criteria & transparent process
-- should include:
• A non-discrimination statement, even if you have a
separate non-discrimination policy
• Statement regarding how vacant units are offered e.g.
first-come, first-served
• Clear and easy-to-understand language about
qualification standards
Policy 4:
Rental Screening Policy (cont’d)
• Clear statement of fees
• How will applicants be notified (both approved &
denied)?
• Are deposits required w/in a certain time frame? What if
not timely received?
• Do you allow co-signers? What are their qualification
requirements?
• Do you have a written waiting list policy?
Sample Rental Screening Policy
Sample Rental Screening Policy (cont’d)
Part 4
AVOIDING A LAWSUIT:
HANDLING COMPLAINTS &
MANAGING EMPLOYEE BEHAVIOR
Handling Complaints
• Ensure you have complaint process
– Consider discipline for employees that lose or “forget” complaints
• Respond to all complaints in a timely
manner
• Investigate complaints thoroughly
• Never ignore - take action
• Document, Document, Document
Managing Employee Behavior
• Training
• Performance Evaluation
• Self-Testing
Managing Employee Behavior
• Training
– Law/Policies/Expectations - CRUCIAL
– Should be in-person/not online
– Multilingual (employees may be shy to ask)
– Keep it brief and frequent
– Be sure upper management can conduct it
• Sends right message & increases buy-in at all
levels
Managing Employee Behavior
• Performance Evaluation
– Accountability
• if employees know it’s part of what they’re
evaluated on, they’ll take it more seriously
– Document & Discipline to reduce liability
Managing Employee Behavior
• Self –Testing
– Why?
• Others may be testing you – find out FIRST & fix
potential problems
• Determine training effectiveness
• EXCELLENT training tool
– How?
• Phone or in-person
• Single/matched
• Internal role-play or outside contractor
Part 5
WRAP UP
Avoiding a Lawsuit
•
•
•
•
•
Have & enforce good policies
Staff training (laws & policies)
Respond to & investigate all complaints
Actively manage employee behavior
Stay involved and take action
Heidi Olguin & Mona Hathout
Progressive Management Resources, Inc.
[email protected]