Session #35- Fair Housing Fundamentals - PHFA HOMEPAGE

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6/14/2019Fair HousingFundamentalsJune 27, 2019Fair Housing Touches EverythingWhich Law Applies?State and Local1

6/14/2019ADA Title II Prohibits disability discrimination by “publicentities” Public Housing AuthoritiesState colleges and universitiesTitle III Prohibits disability discrimination by "places ofpublic accommodation“ Rental and sales offices Other areas of property open to general public Fair Housing: Perception is Reality Youdon’t have to be an evil person toviolate fair housing laws Mistakes Ignorance Laziness Relianceon self-proclaimed “experts” Aggressivetesting and investigation MisperceptionFair Housing Act ProtectedClasses Race Color NationalOrigin Religion Sex FamilialStatus Disability2

6/14/2019Fair Housing Act Prohibitsdiscrimination: In sale or rental Terms and conditions Advertising Design and construction Failure to allow reasonable modification Failure to make reasonable accommodationDiscrimination Discrimination in the sale or rental housing onthe basis of disabilityDiscrimination in the terms and conditions ofhousing on the basis of disabilityFailure to provide reasonableaccommodationsFailure to include accessibility features incertain types of multifamily housingAdvertising3

6/14/2019PurposeWhy? Prohibit the continued segregation ofcommunity Discriminatory advertisements will discourageapplicants from seeking housingHUD Part 109 Was a regulation, is now “guidance” “Describes the matters HUD will review inevaluation compliance with the Fair HousingAct in connection with investigations ofcomplaints alleging discriminatory housingpractices involving advertising.”What is “advertising”? Notice, statement, oradvertisement made, printed, orpublished; or caused to be made,printed, or published4

6/14/2019Advertising Print AdvertisementAudio/Video irections References to real estate location made in termsof racial or national origin significant landmarks,such as an existing black development (signal toblacks) or an existing development known for itsexclusion of minorities (signal to whites). Specific directions that make reference to a racialor national origin significant area may indicate apreference. References to a synagogue, congregation, orparish may also indicate a religious preference.Area Name of facilities that cater to a particularracial, national origin, or religious group,such as country club or private schooldesignations, or names of facilities that areused exclusively by one sex, may indicatea preference.5

6/14/2019Selective Use of AdvertisingMedia or Content For example, the use of English languagemedia alone or the exclusive use of mediacatering to the majority population in an area,when, in such area, there are also availablenon-English language or other minority mediaoutlets, may have discriminatory impact.Human Models The selective use of human models in advertisementsmay have discriminatory impact. Using human models primarily in media that cater toone racial or national origin segment of the populationwithout a complementary advertising campaign that isdirected at other groups. Using human models of members of only one sex, orof adults only, in displays, photographs, or drawings toindicate preferences for one sex or the other, or foradults to the exclusion of children.Advertising: Example 1Bob, a white male, visits the community and asks aboutthe racial composition of the property. He adds, “I wantmy kids to live in a diverse neighborhood.” Themanager gives Bob a general description of the racialmake-up of the community.6

6/14/2019Advertising: Example 2Betty calls the rental office and indicates she is interested inliving at the property. Betty says that she is Muslim andwants to know if there are any mosques nearby. Themanager informs Betty that she is not allowed to give outthat information because it would violate fair housing laws.Advertising: Example 3Tammy is a district manager who routinelyconducts property visits. When Tammy arrivesat one of the properties, she notices that themanager has the Bible prominently displayed onher desk where she frequently meets withapplicants and tenants. Tammy tells themanager to put the Bible in a place where it isnot visible to applicants and tenants to avoidviolating fair housing laws.Advertising: Example 4An African-American couple is driving by the property, andthey see Sam, a Caucasian maintenance technician, mowingthe grass. The couple rolls down the car window and signalsfor Sam. Sam shuts off the mower, and the couple asks himif there are any available units. Sam, who is a pretty gruffguy, informs them that there are no vacant units and a longwaiting list so they should go look at other properties.7

6/14/2019Questions?Criminal BackgroundScreeningCriminal BackgroundScreening TDHCA v.oInclusive CommunitiesSupreme Court recognizeddisparate impact claims under theFair Housing Act PossibleClaimsoCriminal background screeningoAny policy that has a disparateimpact on a protected class8

6/14/2019Criminal Background HUDGeneral Counsel issued“Guidance on Application of FairHousing Act Standards to the Use ofCriminal Records by Providers ofHousing and Real Estate-RelatedTransactions”Criminal Background TheGuidance does not include anynew positions Identifies what HUD believes couldbe the basis for a disparate impactclaim Not binding, but Criminal Background Requiresassessment of current policiesRemove automatic exclusions basedon arrestso Adopt reasonable exclusion criteriabased upon actual threato Can always exclude applicant who is athreat to resident safety or substantialdamage to propertyo9

6/14/2019Criminal Background Illegalmanufacture or distribution of acontrolled substance Sex Offenders Felonies v. misdemeanors Habitual offender Evidence of recidivismCriminal Background Dooonot:Provide inconsistent explanationsUse criminal background screening indiscriminatory manner (e.g., protectedclasses, exceptions to policy)Criminal Background Do:oooCreate actual policyConsider passage of timeExclude based on threat to residents orthe property10

6/14/2019Questions?HarassmentQuid Pro Quo and Hostile EnvironmentHarassment and Liability forDiscriminatory Housing PracticesUnder the Fair Housing Act11

6/14/2019Protected Classes Notonly prohibits sexual harassment, butharassment based upon race, color, national origin,sex, religion, disability, and familial status.HUD’sHarassment Regulations Defines“quid pro quo” and “hostile environmentharassment” Providesillustrations of discriminatory housingpractices that constitute such harassment Clarifiesthe operation of traditional principles of directand vicarious liability in the Fair Housing Act context“Quid Pro Quo” Anunwelcome request or demand to engage inconduct where submission to the request or demand,either explicitly or implicitly, is made a condition of ahousing benefit: Fees Eviction Repairs Reference12

6/14/2019“Quid Pro Quo” Anunwelcome request or demand mayconstitute quid pro quo harassment even if aperson acquiesces to the unwelcomerequest or demand.“Hostile Environment” Hostileenvironment harassment refers tounwelcome conduct that is sufficientlysevere or pervasive as to interfere with therental of housing or terms, conditions, orprivileges of rental of housing.“Hostile Environment” Hostileenvironment harassment does notrequire a change in the economic benefits,terms, or conditions of the dwelling or housingrelated services or facilities, or of theresidential real-estate transaction.13

6/14/2019“Hostile Environment” “Whetherhostile environment harassmentexists depends upon the totality of thecircumstances.”“Totality of theCircumstances” Factorsto be considered include, but are not limited to,the following:(1) the nature of the conduct;(2) the context in which the incident(s) occurred;(3) the severity, scope, frequency, duration, andlocation of the conduct; and(4) the relationships of the persons involved.“Type of Conduct” Harassmentcan be written, verbal, or otherconduct. Doesnot require physical conduct A singleincident can be sufficiently severe tocreate a hostile environment or evidence a quidpro quo.14

6/14/2019“Unwelcome Conduct” Whetherunwelcome conduct is sufficientlysevere or pervasive as to create a hostileenvironment is evaluated from the perspectiveof a reasonable person in the aggrievedperson's position.Direct Liability A “person”is directly liable for his or her ownconduct A “person”is directly liable for “failing to takeprompt action to correct and end [harassment] bythat person’s employee or agent, where the personknew or should have known” of the harassment.Direct Liability/Third Party A “person”is directly liable for “Failing to takeprompt action to correct and end [harassment]by a third-party, where the person knew orshould have known of the [harassment] andhad the power to correct it.” Tenant-on-tenant Owner-on-owner15

6/14/2019Direct Liability/Third Party “Thepower to take prompt action to correct and end[harassment] by a third-party depends upon the extent ofthe person's control or any other legal responsibility theperson may have with respect to the conduct of suchthird-party.” Verbalwarning Writtenwarning EvictionDirect Liability/Third Party “Promptaction to correct and end the[harassment] may not include any action thatpenalizes or harms the aggrieved person,such as eviction of the aggrieved person.”Vicarious Liability HUDrejected the “Title VIII affirmativedefense” Owner or manager can be liable forharassment even if it is not reported and theowner/manager is totally unaware of it16

6/14/2019Vicarious Liability Vicariousliability refers to liability of the principal forthe acts of its agents. A companyis liable to a customer who is injured by theacts or omissions of its employee if the act or omissionthat injured the customer took place in the course andscope of the employee’s employment. “ImputedNegligence”Vicarious Liability Italso includes: “actions taken outside the scope of theirrelationship or employment when theagent is aided in the commission of suchacts by the existence of the agencyrelationship.”Sexual Orientation Protectedclass for HUD-Funded properties Notan express protected class under the FairHousing Act Stillcould form a claim if aggrieved person isharassed because he/she does not fit a traditionalgender stereotype17

6/14/2019Harassment PolicyDevelop anti-harassment policieswhich prohibit harassment of any form Race Familial Status Color National Originprotections (e.g., Religion Disabilitysexual orientation, Sex Other state or localmarital status, etc.)Harassment Policy Notifytenants who at the property hasauthority to make decisions regarding housingdecisions Leaseunits Approve Assess Setmaintenance requestsfeesrental rates OtherdecisionsHarassment PolicyPublish it!Post it!18

6/14/2019Harassment Provide Thistraining to your staffmay save you from vicarious liabilityThe Fair Housing Act onlyrequires us to preventharassment by our employees.If tenants of the samesex are fighting, it can’tbe sex harassment.19

6/14/2019Harassment only includesconduct based upon sex.One act of harassment can neverbe justification to terminate thelease of a harasser.Example 1Sally complains that Suzie took her parkingspace which resulted in a verbal exchange inwhich Sally claims Suzie called her a b# h?20

6/14/2019Example 2Your maintenance tech, Sam,complains that Betty openedher door in nothing but herunderwear when he wasattempting to perform amaintenance inspection of herunit.Example 3Fred complains that some kids in theapartment complex were making fun of hisson who as Cerebral Palsy.Example 4Gloria, who has an approvedcat as an assistance animalfor her disability, complainsthat other residents are sayingGloria is faking her disability,no one likes her cat, and sheshould just move out.21

6/14/2019Questions?Sara A. McCueBaird Holm LLP(402) 636-8276smccue@bairdholm.com22

6/14/2019 5 Advertising Print Advertisement Audio/Video Advertisement Sign Poster Letter Note Statement Gesture References to real estate location made in terms of racial or national origin significant landmarks, such as an existing black development (signal to blacks) or an existing development known for its

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