Judge throws out Disparate Impact Case! Read over the full ruling by going to Disparate Impact Memorandum.
CASE BY CASE ? You know how important consistency is in reducing your Fair Housing liability risks. You know to follow objective criteria and not make “judgment calls.” So then apparently contrary to decades of training, including by HUD to always be consistent, HUD in an April criminal screening memo suggested making admission decisions on a “case-by-case basis” because of disparate impacts on some protected classes such as race. The memo suggests that in order to less…en a discriminatory disparate impact, you should do an “individualized assessment” of “relevant mitigating information.” HUD states that “individualized” evidence might include the facts surrounding the criminal conduct, age at the time, tenant history before and after, and any rehabilitation efforts. HUD concludes that the determination must be made on a “case-by-case” basis. That phrase certainly goes against what everyone has traditionally taught. Is HUD now saying to “make exceptions” – exceptions that historically open us up to disparate treatment claims? If we now make a “case by case” exception in admission criteria for someone to avoid a race disparate impact claim could a later Muslim applicant claim the earlier exception shows we just don’t like Muslim applicants? Yes, it certainly feels like we risk claims no matter what we do. Here’s our attempt to make the HUD “case-by-case” comment “consistent” with “being consistent.” HUD’s comment articulates what we could call a “second level” of “objective criteria”. So create that second-level criteria then follow it consistently. The new “case-by-case” language is scary. But incorporate the concept into a “new” consistency level. Do not allow the phrase “case-by-case” to uproot the best practices of being consistent. Don’t now throw caution to the wind and stop following objective criteria. Because consistency still wins.
TENANT ON TENANT DISCRIMINATION NO RISK FOR YOU, RIGHT ? Let’s say overnight while you were gone a tenant used racial slurs or sexually harassed another tenant. If an employee did that, even without the company’s actual knowledge, the company would also be liable. But since the tenant isn’t your employee would you have any Fair Housing liability? If you didn’t know about it, unlike an employee, the answer is no. But once you receive the report of a discriminatory act by …a tenant then you have a duty to respond appropriately or you do risk Fair Housing liability. That does not mean you have to assume all reports are true. Like any report, you can and should conduct an appropriate investigation including speaking with all parties. But if you conclude there was conduct that was discriminatory then you must take reasonable action considering variables such as severity and frequency. If the alleged violation was the first time and you have an appropriate progressive discipline response perhaps including apologies then that might often generally be fine (depending on severity). But there could certainly often be situations where the offensive conduct could be severe or repeated where an immediate eviction is in order if allowed by your lease. So if you hear or learn of behavior by a tenant make sure you are aggressively proactive or you risk your own Fair Housing liability.
RESPOND TO BULLIES ! You know it’s important to not ignore resident bullies but how exactly do you respond? The response should be immediate so the situation does not fester. An immediate response might actually help stop some bullying. Even if it turns out to be a misunderstanding it’s good to have immediately tried to respond. Your first response often might be to encourage self-management by the victim. In some situations it’s appropriate to tell your victim to tel…l the bully in a calm manner to please stop, detailing the impact and ask that it not happen again. This approach sometimes (surprisingly) works. If it doesn’t, there was no harm in trying. In addition to any written notices, you should also speak to the alleged bully face-to-face. Your discussion might be helpful to see what is really going on. Eye-to-eye (but calm) contact will also emphasize the seriousness of what can happen (assuming a lease breach) if the bullying does not stop. Depending on the severity, your response should often include filing an eviction. You need to consider your lease language, the severity of the bullying and the quality of your proof. Quickly terminating the tenancy is ultimately the best way to send a message to the property.
WHAT IS AN AGGRIEVED PERSON ? If you discriminate against somebody that person has a Fair Housing claim against you and your company for potentially lots of money. That person understandably has a claim because they were the one discriminated against. But others have rights to file Fair Housing claims against you as well. Anyone who is an “aggrieved person” also has a claim. So beyond the applicant, renter or occupant, anyone else associated or affected could have a clai…m. That might be a child, spouse, parent or friend. So an extra reason for learning and always updating your Fair Housing knowledge is not only to avoid significant financial damages from one person, but a violation can cause multiple claims from multiple people claiming to be aggrieved. All good reasons to be a Fair Housing Champion!
NO MAGIC WORDS. A request for a Fair Housing disability reasonable accommodation does not have to use any magic words. If it’s obvious that the resident is making that sort of request, you cannot refuse to address the issue because words like “accommodation,” “reasonable accommodation,” “disability” or “Fair Housing” aren’t used. In a recent California case, an 85 year old tenant lived on the second floor for 20 years then began using a wheelchair after some strokes and he…art attacks and developing Parkinson’s disease. The resident made multiple requests to move to the first floor. The landlord said no because the request did not use the word “disability” or “accommodation.” The case settled for $75,000 and the company must provide annual training to owners and employees annually for five years. So with all the Fair Housing risks out there – be reasonable.
NO JUDGMENT CALLS ! Good, and especially experienced property employees naturally want to use valuable experience in making decisions. But if your judgment, even if good judgment, causes you to stray from objective criteria the inconsistency opens you up significantly for a Fair Housing claim. Decisions need to be based upon objective written criteria and not judgment calls.
If experience and good judgment causes you to want to divert from an established criteria here is… your solution. Speak out loud why you want to make a judgment call. It might sound wrong and then of course don’t do it. But if it makes perfect sense, then still don’t make an exception. Instead, change the objective criteria at that moment and going forward. That way, you haven’t made an exception. Instead the situation before you simply caused you to universally adjust the objective criteria. So no judgment calls – just adjust your criteria.
IS THE LEGAL SYSTEM ABOUT “TRUTH” ? So you’ve been served with legal process. After yelling and hitting something, then what do you do? Whether it’s a discrimination claim or any legal complaint it is possible you did what is claimed and you realize you did something wrong. But it’s more likely that you believe the “truth” is that you did nothing wrong. The legal arena, while designed to achieve truth, is technically not about the truth but instead who is the most convin…cing with proof. If the truth is not on our side but we do a better job in Court than our opponent, then we win. If the truth is on our side but we do a poor job then we lose. When you’re served you need to quickly get beyond the emotional attachment to the truth and instead buckle down to redirect your emotional energy and countless hours developing convincing proof.
“YOU DISCRIMINATED AGAINST ME !” You may sometimes be accused of discriminating. Discrimination is always illegal, correct? Wrong. If I drive a grey car and you randomly decide not to lease to people with grey cars that would be discrimination against people who drive grey cars. But that’s not illegal. It’s only illegal to discriminate based upon “protected classes” (whether intentionally or unintentionally causing a disparate impact). There is of course no reason to …discriminate on any basis, whether legal or not. But be conscious of the legally protected classes. Be conscious of protected classes so you do not illegally discriminate. Being conscious of protected classes will also help you from being intimidated or scared from all claims of discrimination by someone that might not be illegal even if true.
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ARE BULLIES HARRASSING YOUR RESIDENTS ? Some residents are just bullies ! They are demeaning, embarrassing, hurtful gossiping, call others names, shout, and intimidate. There is a significant cost to the property: resident turnover, lost productivity, claims costs, and maybe even Fair Housing claims from co-tenants. So is it legal for you to deal with bullies ? Definitely ! And to Play to Win you need to take action against them !
STUDENT HOUSING “NOT FOR KIDS”? For those who own or manage student housing, a significant federal Fair Housing lawsuit was filed in Palm Beach. The suit alleges a familial status violation by excluding children in the rent-by-room student housing. The suit alleges that only one person per bedroom was allowed, regardless of the square footage of the room, and that each occupant had to sign an individual lease as a lessee, meaning minor children under age 18 are unable to be an occupant because they are legally incompetent to sign a lease. You can read the current Amended Complaint by clicking Student Housing Federal Fair Housing Case.
ARE YOU OLD AND DISABLED OR JUST OLD ? Having a handicap is a protected Fair Housing class. Both physical and mental impairments are protected – anything that “substantially limits a major life activity.” A “major life activity” is almost everything including manual tasks, seeing, speaking, learning and working. Sometimes people think the protected disability has to be some special, unique diagnosis from a particular disease or illness or condition. But with our aging population, you need to be sensitive to this broad definition. Just “being old” might be enough to cause protected status. A lot of the conditions that elderly people have might cause these substantial limitations.
FAIR HOUSING LIABILITY IS PERSONAL. If you think Fair Housing laws are only directed at companies and that only companies are at risk of financial losses, you’re WRONG. Yes – you PERSONALLY are subject to financial damages and penalties. And if that doesn’t motivate you, in defending corporate entities in Fair Housing cases, one of the first strategic decisions to make is whether to terminate or discipline the employee involved. The company can’t get out of Fair Housing l…iability, but it might assist the company in negotiations by suggesting that what the employee did was not what was taught by the company. If you are terminated, you’d then also have to fund your own legal defense. So a selfish reason to make sure you are always on top of Fair Housing compliance and knowledge is that your job – and your personal money – may also be at stake.