FAIR HOUSING 101 FOR SERVICE PROVIDERS GREATER NEW ORLEANS FAIR HOUSING ACTION CENTER & THE ADVOCACY CENTER GREATER NEW ORLEANS FAIR HOUSING ACTION CENTER Enforcement Education Homeownership Protection Policy Fair Housing is a movement to end housing discrimination in America. It is the fight for housing choice. We fight for housing choice because it often dictates or at least has an effect on: School choice; Job choice; Neighborhood safety; Access to transportation options; Cost of living; Access to healthcare and quality of options available; Access to healthy food and recreation options; Health outcomes; Ability to build equity and financial stability. WHY FAIR HOUSING MATTERS April 11, 1968 THE FAIR HOUSING ACT April 04, 1968 THE FAIR HOUSING ACT 7 Protected Classes Race Color Religion National Origin Sex (1974) Familial Status (1988) Disability (1988) It is illegal to deny someone housing choice based on their membership in a protected class. FAIR HOUSING ACT New HUD rule as of March, 2012: Clarifies definition of family in HUD program regulations with LGBT inclusive language. Prohibits inquiries regarding the sexual orientation or gender identity of an applicant or occupant. Prohibits discrimination on the basis of sexual orientation or gender identification in HUD programs. *Applies to private landlords who participate in the Housing Choice Voucher Program (Section 8) Though sexual orientation and gender identity are not protected classes under the Fair Housing Act, discrimination based on these factors is often sex discrimination. SEXUAL ORIENTATION AND GENDER IDENTITY Protected Housing Transactions: Rental Sales Lending Insurance Zoning Advertising The Fair Housing Act also prohibits harassment based on membership or perceived membership in a protected class, and retaliation against anyone making a Fair Housing complaint, whether or not their complaint is found to have merit. FAIR HOUSING ACT Legal precedent has long held that policies having a disparate impact are in violation of the Fair Housing Act whether or not there was discriminatory intent. The Supreme Court affirmed this interpretation of the law just this year in its decision in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project INTENT VS. IMPACT Sexual Harassment under the Fair Housing Act Quid Pro Quo Hostile Environment Sexual harassment could be considered housing discrimination on the basis of sex under the Fair Housing Act when it is an issue between a tenant and a landlord, somebody who works for a landlord, or another tenant. HARASSMENT A maintenance worker makes inappropriate sexual comments to a tenant. An apartment manager offers discounted rent or more rapid maintenance service in exchange for sexual favors. Another tenant is sexually harassing a female tenant in a way that makes her feel unsafe. HARASSMENT Other types of harassment could also be considered housing discrimination under the Fair Housing Act. A tenant of color complains that another resident is using racial epithets in her presence and that she feels threatened. A gay tenant complains that a maintenance worker often makes derogatory comments about him being HIV positive, when in fact he is not. HARASSMENT Steering: A 2006 Fair Housing Trends report by the National Fair Housing Alliance showed an 87% rate of steering based on race, religion, national origin and familial status. Redlining These types of discrimination can be hard to detect. Poor customer service can be a red flag. SALES, LENDING AND INSURANCE City or other government policies about housing, development and land use Can violate the Fair Housing Act if they have treat housing that will house a disproportionate number of protected class members differently than other housing OR if these policies have a disparate impact on members of a protected class. Examples of that might be: Restrictions on the number of unrelated individuals who can live together Bans on multi-family housing ZONING As a tenant, the Fair Housing Act protects you in multiple ways. Advertising Application Process & Screening Procedures Maintenance & Resident Relations HOW THE FAIR HOUSING ACT PROTECTS TENANTS It is illegal under federal law for a housing advertisement to contain language that is discriminatory toward a protected group. ADVERTISING & MARKETING Advertisements include: Online advertising Signs in the front yard or neutral ground Advertisements in the newspaper Social Media Utterances ADVERTISING & MARKETING An apartment complex advertises for adult housing, student housing, and active adult housing. Each property looks different, and has different amenities. ADVERTISING & MARKETING Nice, quiet, mature neighborhood Extra deposit for children or pets Single occupancy Sorry, units are not accessible Must be able to live independently English Only! No Section 8 or Section 8 Welcome Diverse neighborhood Mostly Irish neighborhood Predominantly African-American neighborhood Christian family seeks tenant CASE STUDIES During the application process its important to: 1.Be treated the same. 2.Not feel a housing provider is making assumptions. APPLICATION PROCESS & SCREENING PROCEDURES A man calls to inquire about available units and the landlord invites him to come visit the property. When he arrives, the landlord notices that he has difficulty walking and uses a cane. Because the landlord is worried about his safety, he decides to only show the prospective tenant only ground floor units that will not require him to climb stairs. CASE STUDIES It is an apartment complexs policy to run a criminal background check on individuals who use Section 8 vouchers, but not tenants who pay market-rate. A landlord decides to run a credit check on prospective tenant Jones, but not prospective tenant Smith, because he is a friend of the family. When you arrive at an apartment complex, the housing provider decides to show you an apartment in a building that is somewhat run down, although you were originally interested in living in a different building of higher quality. CASE STUDIES When it comes to resident relations its important for a housing provider to: 1.Make sure all residents are treated the same regardless of protected class status (except when a person with a disability requests a reasonable accommodation or modification.) 2.Ensure that residency rules are reasonable for the use and enjoyment of all residents. MAINTENANCE & RESIDENT RELATIONS An apartment complex has a policy that tenants cannot display anything outside of their units. Soon after a new tenant moves in, the complex staff discover that they have displayed a small decorative object outside of their door. CASE STUDIES An apartment complex has a zero-tolerance policy of violent conduct. A female tenant is abused by her visiting ex-boyfriend, and the following day receives an eviction notice from the property management company for violating the policy. RESIDENT RULES 1.No lease can prevent tenants from calling emergency assistance, or impose penalties if they do. 2.Survivors cant be evicted solely because they experience domestic violence. 3.Survivors cant be denied housing solely on the basis of past abuse. 4.Survivors can terminate a lease early and move if they need to without forfeiting a security deposit or other penalty. *LAVAWA provides additional protections for federally funded housing like public housing, housing choice vouchers, low income tax credit, supported housing for the elderly or people with disabilities, HOPWA* LOUISIANA VIOLENCE AGAINST WOMEN ACT FAIR HOUSING RIGHTS OF PEOPLE WITH DISABILITIES Susan Meyers, Advocacy Center STATUTES THAT PROTECT AGAINST DISABILITY DISCRIMINATION Section 504 of the Rehabilitation Act Covers programs receiving federal financial assistance (including housing authorities) Americans with Disabilities Act of 1990 Covers activities of public entities Fair Housing Amendments Act of 1988 Covers housing providers Louisiana Equal Opportunity Housing Act Substantially equivalent to federal Fair Housing Act SECTION 504 Illegal to discriminate in any program or activity receiving Federal financial assistance Covers public housing & Section 8 projectbased housing Does not cover housing rented with tenant-based voucher ADA Public Accommodations (Title III) Applications Rental office in an apartment complex Housing that is not permanent, such as hotels and shelters Public Services (Title II) Applications Housing that receives assistance from local governments DEFINITION OF DISABILITY Physical or mental impairment that substantially limits one or more major life activities Having a record of an impairment Being regarded as having an impairment 1988 AMENDMENT TO THE FHA The Fair Housing Amendments Act... repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals.... 1988 AMENDMENT TO THE FHA (CONTINUED) The right to be free from housing discrimination is essential to the goal of independent living. H.Rep.No , 100 th Cong., 2d Session, 18, reprinted in 1988 U.S. Code Cong. & Ad. News, 2173, 2179 (footnote omitted). THE AFFIRMATIVE DUTY OF REASONABLE ACCOMMODATION ACCOMMODATION VS. MODIFICATION The terms reasonable accommodation and reasonable modification are interchangeable terms of art in other disability contexts. Under the Fair Housing Act, they mean different things. Accommodation: The alteration or change of a rule, policy, practice, or service Modification: The removal of physical barriers ACCOMMODATIONS Reasonable Practical and feasible No undue administrative or financial burden No fundamental alteration in program Necessary Essential for the use/enjoyment of dwelling or access to the program Handicapped Individual meets definition of disability EXAMPLES OF REASONABLE ACCOMMODATION Allowing applications to be mailed or faxed Visiting the applicants home to assist the applicant with completing the application or conducting an interview Allowing a secondary contact for communications from the housing authority or landlord to the client and sending notices to both the client and the secondary contact Making exceptions to screening criteria regarding criminal history based on disability-related circumstances Accepting late rent payments or changing date rent is due Allowing early termination of lease if housing is no longer accessible EXAMPLES OF REASONABLE ACCOMMODATION Allowing a higher payment standard for an accessible unit Allowing additional time for recertifications, providing home visits for recertification, or rescheduling recertification appointments Allowing voucher holders to rent from relatives Extending voucher search time Reinstating a voucher that was terminated for cause, due to disability-related mitigating circumstances Allowing a live-in aide REQUESTS FOR ACCOMMODATION Client requests Housing provider must respond If disability and need for accommodation obvious, should not request further information May only request sufficient information to establish disability, if not obvious Cant request information on extent, nature May only request sufficient information to establish need for accommodation, if not obvious If accommodation unreasonable under the law, housing authority should attempt to find an alternate, reasonable accommodation REQUESTS FOR ACCOMMODATION Do not have to be in writing or on a particular form Response should be given within a reasonable amount of time Refusal to respond may be considered a denial of accommodation Housing providers may not condition accommodation on an extra fee or deposit DIRECT THREAT EXCEPTION Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. 42 U.S.C. 3604(f)(9) THE AFFIRMATIVE DUTY OF REASONABLE MODIFICATION MODIFICATION Physical Change Necessary Reasonable REASONABLE Extent Location Nature EXAMPLES OF REASONABLE MODIFICATION Installing ramps Replacing doorknobs with levers Widening doorways Lowering kitchen cabinets Installing grab bars in a bathroom REASONABLE MODIFICATION RESPONSIBILITIES Tenant s responsibility Payment Request modifications to rental unit and common use areas Security deposits Landlord s responsibility in some cases, if Building receives federal assistance (504) Unit built after 3/91 Common use area for public accommodation (ADA) MODIFICATION REQUESTS Tenant s responsibility Request modification in writing with date Copy all correspondence Landlord s approval required, but tenant has choice of contractor Landlord entitled to details, description, assurances of required permits, and reasonable restoration RESTORATION OF MODIFICATIONS Required, if reasonable, to rental unit s interior Not required if no interference with use by another tenant (e.g., widened doorways), if requested by next tenant, or to common use areas Tenant pays for restoration In some cases, landlord may require an escrow account TIMELINES HUD administrative complaint statute of limitations: 1 year from the date of the last discriminatory act Lawsuit in state or federal court: 2 years from the date of the last discriminatory act HYPOTHETICALS James is a young man who was diagnosed last year with bipolar disorder. Before his diagnosis, James would act out sometimes. He could not keep a job and got into fights. James has a criminal record that shows an incident of shoplifting and a few convictions for simple assault. Some of the arrests happened as recently as 18 months ago, but since James was diagnosed, he has been taking medicine, has been able to keep a job, and has not had any further run-ins with the police. He asks, as a reasonable accommodation, that the leasing agent disregard his criminal history. Should his request be granted? HYPOTHETICAL Sherry has a child, Anna, with severe respiratory problems, including asthma. After living in an apartment for a few months, Anna began suffering from nose bleeds and her asthma worsened. Sherry brought Anna to the doctor, and the doctor wrote a letter indicating that the carpet in the apartment caused Anna s medical problems and heightened her asthma symptoms. Sherry submitted the doctor s letter to the apartment manager and informed the manager that she and Anna would be moving out of the apartment prior to the termination of the lease period. The manager refused to let Sherry out of the lease without payment of a termination fee and refused to return Sherry s rent deposit. What would be a reasonable accommodation? HYPOTHETICAL Ann, a person with a mental illness, obtains an apartment with the support of a case manager and a housing voucher. Ann stops taking her medication, which makes her prone to violence. Ann makes threatening gestures at other tenants and threatens to hurt them. She also has an episode where she damages some walls in her apartment. Ann's behavior does not change after several warnings. The manager at Ann's complex first considers whether any reasonable accommodation can help Ann continue to live independently at the complex. After the manager determines that Ann does pose a direct threat to others and that there is no reasonable accommodation that will alleviate the threat, she evicts Ann. Is this okay? HYPOTHETICAL Jan, a person with a sight impairment, asks to be transferred to an available second-floor unit in an apartment complex because it has better light. The manager refuses to rent the unit to Jan, because of the fear that her disability makes it dangerous for her to live on the second floor. Is this permissible? HYPOTHETICAL John rents one half of a double. He recently had an accident, and is now unable to walk up the two stairs to the front porch. John wants to remove the stairs and put in a ramp. Is this allowed? What considerations is the landlord allowed to make before granting Johns request? Questions? The materials in this presentation are for informational purposes only and not intended to be legal advice. You should contact an attorney to obtain advice with respect to any particular issue or concern. 404 S. Jefferson Davis Pkwy New Orleans, LA (504) (877) GREATER NEW ORLEANS FAIR HOUSING ACTION CENTER