Transcript FAIR HOUSING 101

FAIR HOUSING 101
ANTONETTE SEWELL
Director of Legal Services
The Constitution of the United States
"It is the policy of the United States to
provide, within Constitutional
limitations, for fair housing
throughout the United States."
- 42 U.S.C. §3601
The Fair Housing Act
There are SEVEN Protected Classes:
Race
(Black v White)
Color
Religion
National Origin
Sex
Familial Status
Disability
(Light v Dark skinned persons)
(Inclusion in a specific religious group)
(Hispanic, Asian/Pacific Islander or American
Indian/Alaskan Native
(male or female)
(presence of children under the age of 18 or
pregnant women)
Has a physical or mental illness that substantially
limits one or more major life activities;
Has a record of such a disability OR
Is regarded as having such a disability
What is Fair Housing/Equal Opportunity?
1. Ensuring non-discriminatory treatment of
individuals within the protected classes.
2. Providing equal access to all programs, services
and activities with federal funds.
3. Affirmatively Furthering Fair Housing.
WHAT IS DISCRIMINATION UNDER THE
FAIR HOUSING ACT
Any difference in treatment, exclusion
of, or failure to offer a person an equal
opportunity to participate in, benefit
from or use a service, program or activity
because of race, color, religion, national
origin, sex, familial status or disability.
Three Types of Discrimination
1. Overt Discrimination
Discrimination that is intentionally and blatantly inflicted.
2. Disparate Treatment
Discrimination that occurs when a protected class is
treated in a less favorable manner. This is usually an
intentional decision to treat people differently based on
a protected status.
3. Disparate Impact
Equally applied treatment that appears neutral that
has a discriminatory effect in its application. This is
usually unintentional.
ENSURING EQUAL TREATMENT
YOU MUST APPLY ALL POLICIES/PRACTICES
UNIFORMLY AND CONSISTENTLY
IT IS CRITICAL TO REVIEW:
1. YOUR POLICIES/PRACTICES
2. APPLICATION OF THOSES POLICES/PRACTICES
3. RESULTS AND POTENTIAL IMPACT
COVERED ACTIVITIES
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Sales
Lending
Insurance
Rental
Down-Payment Assistance
All Areas Connected With Residential Housing
Municipal Services
Infrastructure improvements
Public Facilities
Neighborhood Revitalization
Economic Development
Section 8 Rental Assistance
Any activity receiving federal funds
Covered Individuals/Entities
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Local Governments
Public Entities
Owners
Managers
Homeowner’s Associations
Lenders
Real Estate Agents
Brokers
Insurers
Developers/Builders
Architects
Contractors
Engineers
Landscape Architects
All Persons/Entities Involved with Residential
Housing
ENSURING EQUAL ACCESS
Recipients of Federal Financial Assistance
must ensure MEANINGFUL access to their
programs, services and activities by persons
living with disabilities AND persons with
Limited English Proficiency (LEP.)
WHAT IS MEANT BY PROGRAM ACCESSIBILITY?
The best practice is to ensure that persons with
disabilities have an equal opportunity to participate in
and benefit from the program, service or activity and
have the same range of choices as those offered to
non-disabled individuals.
RECOMMENDATIONS TO ADDRESS ACCESSIBITLY
MANDATES?
CREATE accessibility policies and procedures.
Provide NOTICE of the accessibility protocols and practices to
employees, applicants, recipients and program participants.
Provide TRAINING to staff.
AUDIT all federally financed programs and services and actual
buildings to evaluate compliance.
REVIEW internal and external requests for Reasonable
Accommodations and/or Modifications.
RECOMMENDATIONS FOR
ACCESSIBILTY MANDATES CONTD.
INVESTIGATE discrimination or lack of accessibility
complaints.
RECORD requests, complaints and determinations.
Develop GRIEVANCE procedures for both external and
internal (staff) requests and complaints.
Routinely track UPDATEs to laws and regulations related
to accessibility and non-discrimination.
REGULATORY ACCESSIBILTY MANDATES
Section 504 requires that recipients take steps to ensure
effective communication with applicants, beneficiaries, and
members of the public (24 CFR 8.6.)
This may include but is not limited to: conducting outreach in a
manner that will reach persons with disabilities and ensuring
that information about programs and services are disseminated
in a manner that is accessible to persons with disabilities.
Each recipient must have an Effective Communication Plan.
Recipients with 15 or more employees must designate an
employee (504 Coordinator) to ensure the recipients’
programs, services and activities meet the requirements under
Section 504.
WHAT ARE THE COVERED ACTIVITIES FOR HUD
RECIPIENTS?
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Eligibility criteria
Application process
Admission to programs
Service delivery
Tenancy, including evictions
Physical accessibility of residential units, offices and
meeting sites
• Outreach and public contact
• Employment policies and practices
WHAT IS REASONABLE ACCOMMODATION
UNDER SECTION 504?
A reasonable accommodation is a change, adaptation
or modification to a policy, program, service, or
workplace which will allow an otherwise qualified
person with a disability to participate fully in a
program, take advantage of a service, or perform a job.
In order to show that a requested accommodation is
necessary, there must be an identifiable relationship or
nexus, between the requested accommodation and the
individual’s disability.
HOW DO YOU DETERMINE WHETHER A REQUEST FOR A CERTAIN
ACCOMMODATION IS REASONABLE?
Determining reasonableness of a request for an accommodation
must be done on a case by case basis.
Reasonableness is determined based on the answers to two
questions:
1. Does the request impose an undue financial and administrative
burden?
2. Would making the accommodation require a fundamental
alteration in the nature of the provider/recipient’s operations?
If the answer to either question is yes, the requested accommodation is
considered not reasonable.
An alternate, comparable accommodation or other accommodations that
qualify as reasonable should be offered to the requester.
DCA’S Fair Housing Policies
Use a tag line:
“The Georgia Department of Community Affairs
is committed to providing all persons with equal
access to its services, programs, activities,
education and employment regardless of race,
color, national origin, religion, sex, familial status,
disability or age.”
If you require an accommodation or translation
services please contact_______.
DCA’s Effective Communication
Policy which includes the following:
1. Language Access Plan
2. Reasonable Accommodation
Policy/Forms.
3. Grievance Procedures
4. Recording
5. HUD and GCEO Fair Housing Complaint
forms.
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All accessible on DCA’s website by clicking on the Fair Housing Icon.
Access also includes language as a
barrier
Limited English Proficient (LEP) persons
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Develop a Language Access Plan (LAP)
Complete analysis to identify the need.
18 Georgia counties meet the DOJ threshold of 5%
of population who speak a language at home
other than English as their primary language and
speak English “not well” or “not at all”
(Spanish).
DCA now requires that grantees in these 18 counties provide
outreach and public notices in Spanish as well as English
Atkinson County
Evans County
Hall County
Clayton County
Gilmer County
Murray County
Cobb County
Gordon County
Polk County
Colquitt County
Grady County
Telfair County
DeKalb County
Gwinnett County
Tift County
Echols County
Habersham County
Whitfield County
Services Provided under an Effective
Communication Policy
1. Reasonable Accommodation or
Modification
2. Oral Interpreters
3. Written Translation Services
4. Assistance Animals
5. Accessible Public Meeting Sites
Affirmatively Furthering Fair Housing
States and local governments must certify that they are
affirmatively furthering fair housing (AFFH) in their Consolidated
Plans (ConPlans) and Public Housing Agency Plans (PHA Plans).
In order to comply, these jurisdictions must have an Analysis of
Impediments to Fair Housing Choice, also known as an AI.
While these requirements have historically been overlooked,
affirmatively furthering fair housing took on new importance in
the wake of a court decision on an AFFH case in Westchester
County, NY and renewed attention and enforcement from HUD.
A New AFFH rule was proposed on July 19, 2013; final regulations
are expected late 2014.
AFFH
Local governments and States that receive Community Development Block
Grants (CDBG), HOME Investment Partnerships (HOME), Emergency
Solutions Grants (ESG), and Housing Opportunities for Persons With AIDS
(HOPWA), as well as public housing agencies (PHAs) are required to
affirmatively further the purposes of the Fair Housing Act.
HUD proposes an improved structure and process whereby HUD would
provide these program participants with guidance, data, and an
assessment template from which they would complete an assessment of
fair housing (the AFH).
This assessment would then link to Consolidated Plans, PHA Plans, and
Capital Fund Plans, meaningfully informing resulting investments and
related policies to affirmatively further fair housing.
Affirmatively furthering fair housing activities
include:
 Identifying
impediments to fair
housing choice
 Conducting fair housing planning
 Taking actions to overcome the
identified impediments
 Maintaining records
 Assuring that local governments
comply with certifications.
 Post
Fair Housing posters/flyers in public places
 Pass resolution supporting Fair Housing
 Discuss Fair Housing at Public Hearings
 Conduct a Public Information Campaign on Fair
Housing
 Advertising the availability of housing directly to
populations “less likely to apply”
 Outreach to advocacy groups
 Train elected officials and staff on Fair Housing Laws
and the complaint process
 Identify/enlist
organizations that provide housing
services (housing counseling agencies, etc.)
 Offer referral services to fair housing advocacy
groups that conduct ordinance, regulatory and/or
restrictive covenant reviews
 Educate code enforcement staff on accessibility
requirements for newly constructed facilities
 Conduct/sponsor Fair Housing Seminars or other
“Housing Fair” type activities
Recent Enforcement Actions
In recent months, HUD investigations have found that a number of jurisdictions
have fallen short in fulfilling the AFFH obligation.
HUD has taken action to remedy those situations mostly through VCAs.
These jurisdictions include:
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Aurora (IL) Housing Authority
Dallas, TX
Dubuque, IA
Galveston, TX
Jefferson Parish, LA
Joliet, IL
Houston, TX
Marin County, CA
Nebraska
New Jersey (Hurricane Sandy)
St. Bernard Parish, LA
Sussex County, DE
Westchester County, NY
SECTION 3
Economic Opportunities for Low Income Persons
To ensure that economic opportunities
generated from HUD funded projects will, “to
the greatest extent feasible,” be directed to
low and very low income persons- particularly
those receiving assistance for housing.
(12 USC 1701u Section 3, as Amended)
Refocus on Section 3
Hurricane Katrina
Economic Crisis
Urgency of Job Creation
RESULTS…
Renewed focus on Enforcement of Section 3
requirements by HUD.
Section 3 Criteria
Eligibility based on two things:
1. Proximity to where funds expended.
2. Income Level of potential Section 3
resident.
(Race and Gender neutral!)
Funding Applicability
Public and Indian Housing (PHAs).
1. Development (construction)
2. Operations
3. Modernization
NO Contracting or Funding Thresholds
for PHAs (vs. other programs)
Funding Applicability
Community Planning and Development.
1. Nearly all construction (development) funds
- Housing Construction
- Housing Modification
- Other Public Construction
2. Examples Include: CDBG, HOME, HOWPA, ESG, NSP,
etc. (Multifamily projects such as 202/811s covered
during development phase).
Threshold Requirements
Entitlement Community Recipients (and States): Amount
exceeds $200,000 for community development program
assistance in the aggregate from all applicable grant sources.
Contractors and Subcontractors: Any single contract or
subcontract exceeds $100,000. Individual contracts are not
aggregated. Contractor now has an affirmative duty to
implement the Section 3 program.
Section 3 requirements apply to the entire project where Section
3 covered funds are expended, regardless of whether the project
is fully or partially funded with Section 3 covered funds.
Triggering Events
For Section 3 Covered Funds:
1. When covered contracts are awarded.
2. Necessary New Hires for contractors to complete
the Section 3 project (or when the PHA hires for
any position).
3. Subcontracting related to the expenditure of
Section 3 covered funds.
(No hiring or subcontracting is ever required unless it is
necessary to complete the project).
Section 3 Definitions
1. Employment (and training) Opportunities
2. Section 3 Resident
3. Low and Very Low Income Household
4. Section 3 Business Concern
Employment Opportunities
For covered projects (PHAs or CPD): With
regards to contractors and subcontractors:
All positions are considered, including
professional services such as architects,
engineers and managers.
For PHAs, all positions are included up to and
including the Executive Director.
Section 3 Resident
A Public Housing Resident or
A resident of the Metro Statistical Area
(MSA) or non-metro county in which
Section 3 covered assistance is expended
and who qualifies as a low income or very
low income person.
Low & Very Low Income
Low Income- Less than 80% of the median
(40% of the whole) MSA or non-metro
county household income (Info at
www.hud.gov/section3).
Very Low Income- Less than 50% of the
median MSA or non-metro county income.
Public Housing residents always qualify!
Section 3 Business Concern
51% or more owned by Section 3
resident(s), or
30% of employed staff are Section 3
residents, or
25% of Subcontracts (dollar amount)
committed to Section 3 businesses.
Preferences Drive the Program
Who should move toward the top of the “list” when
new hiring takes place or when contracts are
awarded?
1. Always think “inside-out.”
2. Those low income residents that live closest to
where the covered funds are expended should receive
the most preference and opportunities that flow from
the project.
Preferences are awarded in two areas:
1. Employment & Training Opportunities
2. Contracting Opportunities
Preferences (PHAs)
In Employment and Training (PHAs):
1st: Residents of housing development where funds
are expended.
2nd: Residents of other housing developments
managed by the HA (including Section 8 voucher
holders).
3rd: Participants in HUD Youthbuild.
4th: Other Section 3 Residents.
Preferences (CPD)
In Employment and Training:
1st: Section 3 Residents residing in the “service area or
neighborhood” where the covered project is located.
2nd: Participants in HUD Youthbuild.
3rd: Other Section 3 Residents (which always include
persons living in public housing or receiving housing
assistance).
Preferences (CPD)
In Employment and Training:
The homeless in the service area or
neighborhood should always get first priority in
employment and training opportunities
whenever projects are funded by the Stewart B.
McKinney Homelessness Assistance Act (42
U.S.C. §11301) (construction related activities).
“Supportive Housing”
“Shelter Plus Care”
Preferences (PHAs)
For Section 3 Business Concerns:
1st: Business Concerns that are 51% or more owned
by residents of the housing development or whose
permanent full-time work force includes 30% or
more of these individuals.
2nd: Same as above except for residents of “other
housing developments or developments managed by
the HA.”
3rd: HUD Youthbuild Programs in the MSA.
4th: Any other Section 3 Business Concern
Preferences (CPD)
For Section 3 Business Concerns:
1st: Section 3 business concerns that
provide
economic opportunities for
Section 3 residents in the “service area or
neighborhood” where the covered
project is located.
2nd: HUD Youthbuild Programs (in the
MSA).
3rd: Any other Section 3 Business
Concern
Numerical Goals (PHAs)
In Employment:
-30% of New Hires annually (Both at the PHA itself
and for new positions created because of contracting).
In Awarding Contracts (% of Total $ Amount Expended):
-10% of Building Trades work (including
maintenance, repair, modernization and development).
- 3% Professional Services
Safe Harbor Provisions (compliance presumed).
Numerical Goals (CPD)
In Employment:
-30% of New Hires annually (New hires needed to
complete the Section 3 covered project).
In Awarding Contracts (% of Total $ Amount
Expended):
-10% of Section 3 covered project(s)
(Construction).
- 3% of service contracts ancillary to construction.
Safe Harbor Provisions (compliance presumed).
Flexible Program Design
• HUD proscribes very little regarding specific program
requirements.
• Flexibility is the overriding concept.
• If, after reasonable efforts, HUD Recipients are frustrated or
not securing results, the program is likely being implemented
incorrectly.
• HUD Goals are 30%, 10% & 3%- NOT 100%, 100% & 100%!
• HUD Recipients decides how to achieve compliance. “FrontEnd” recruitment efforts and “Back-End” preferences and bid
allowances are at the near total discretion of the Recipient.
Meet your goals!
Section 3 Qualifications
Key Points:
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Based on Section 3 Resident income, not assets
2. Look at income over previous 12 months (Guidance).
3. Based on family or household income (not individual).
4. Section 3 is geared toward full-time positions.
5. Section 3 resident must meet the qualifications of the
position to be filled (but can offer training programs).
6. Section 3 business concern must have the ability and capacity
to perform.
Section 3 Qualifications
Key Points (Continued):
7. “Rehires” are still considered “New Hires” and need
to meet the Section 3 Resident Definition in order to
be counted as a Section 3 new hire. Businesses
cannot claim to have no new hires because in
practice they recall the same employees when they
have work.
8. Compliance with HUD requirements and goals should
be viewed as the minimum, not necessarily the
ideal.
Procurement
Procurement procedures must still be conducted in a
competitive manner consistent with the requirements
of 24 CFR Section 85.36.
This section does specifically authorize and encourage a
geographic preference when possible.
Remember, the “Lowest Responsive Bid” is the one that
complies with all federal regulations, including
Section3. Bid allowances are authorized.
Also Remember, Section 3 is not applicable to simple
acquisition costs (such as for land).
Labor Standards
Section 3 does not trump any of the federal
labor standards, prevailing wage requirements
or apprentice/training guidelines from HUD or
the Dept. of Labor.
Minimum Requirements
Notification to Section 3 Residents and Business
Concerns.
Include Section 3 Clause in all business solicitations
(§135.38).
Develop a Section 3 plan (examples in Appendix of
Regulations at 24 C.F.R §135).
Ensure compliance from contractors and
subcontractors.
Keep record of actions and results.
Sample Certifications
Found at: www.hud.gov/section3
- Section 3 Resident Certification
- Section 3 Business Certification
**Self Certification is the HUD standard**
Reporting Requirements
Submit HUD Form 60002 Annually
Timing of Report: Submit contemporaneously with annual
funding report (CAPER for Entitlement Communities), or, if no
annual funding report is required (PHAs), by January 10th or
within 10 days of project completion (202s/811s), whichever
occurs earlier.
Separate Report for each grant based on yearly expenditures.
Must be submitted online at www.hud.gov/section3
Reporting Requirements
(Continued)
Use the Narrative Box!
HUD has provided a narrative box at the end of the
current reporting form (and more on drafts of a
proposed new form). USE IT! This is the place to
describe your Section 3 efforts beyond the “numbers.”
For example, employment goals only count “full-time”
employees, but affirmative efforts to recruit Section 3
residents for part-time positions still shows a
commitment to the spirit of the program. Don’t just
report “zeros” across the board with no explanation.
Explain why if you failed to meet your goals.
Implementing Strategies
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Network/Collaborate with local agencies.
Participate in Regional Consortium.
Adopt and execute a Section 3 plan.
Designate a Section 3 coordinator.
Establish certification procedures.
Develop and maintain lists of Section 3 residents.
Develop and maintain lists of Section 3 businesses
Establish procedures for notifying Section 3 Residents and
businesses of contracting opportunities and Section 3 covered
projects.
Sponsor a Section 3 workshop.
Develop appropriate penalties/incentives for noncompliance
or good performance.
Help developers advertise vacancies.
Develop a Section 3 record keeping system.
Most Important Key for Success
Meeting with Local Contractors:
Entitlement Communities and PHAs must meet and
coordinate with local contractors, especially the ones
that routinely bid on government construction projects.
They receive the contracts (10% Goal), and they hire for
the new positions created (30% Goal).
Getting businesses certified (once done, good for 3
years) and explaining the hiring requirements and
reporting expectations is the key to a successful
program.
FHEO UPDATE
DCA’S COMPLIANCE REVIEW
FAIR HOUSING COMPLAINTS
HUD’S ENFORCEMENT ACTIVITIES
CONTACT INFORMATION
ANTONETTE SEWELL
[email protected]
404-327-6860