With societal and cultural changes, new emphasis is being placed on Fair Housing laws. And housing providers must stay on top of their games, says attorney Scott Moore, a veteran lawyer who specializes in the housing industry.
Laws to shield those within protected classes of the Fair Housing Act are increasingly being interpreted to more include those who changed their sexual orientation and gender identity or who don’t speak English as their primary language.
Moore told attendees at April’s Texas Apartment Association Education Conference & Lone Star Expo in San Antonio that these Fair Housing topics and others are more reasons why housing providers should to be aware of potential discrimination. Those who provide government assisted housing aren’t the only ones affected.
“We’re seeing more and more conventional housing providers receiving complaints,” says Moore, who has spent more than 14 years arguing Fair Housing cases. “There is increased enforcement by the federal government.”
Sexual orientation, gender identity discrimination is a ‘big issue’
Sexual orientation and gender identity are attracting more attention, Moore said. In early 2012, the Department of Housing and Urban Development (HUD) adopted regulations that prohibit discrimination by owners and operators of HUD-assisted housing or housing with financing insured by HUD. According to Moore, HUD has even taken the position that sexual orientation and gender identity discrimination could be covered by the Fair Housing Act.
“It’s a big issue, a very big issue,” Moore said. “A big issue not only with HUD, but from the private enforcement perspective.”
While sexual orientation and gender are not terms that appear under Fair Housing Act rules, some governmental agencies and Fair Housing groups have interpreted the FHA’s position on sexual discrimination to include protection from gender stereotypes. Moore said there are state and local laws that prohibit discrimination on the basis of sexual orientation and gender identity.
One challenging area for legal interpretation is properties – including student housing – that have common restrooms. Moore said individuals have the right to identify a gender which may be different than their birth certificate. Denying someone access to a common restroom or shower based on gender identity is problematic.
HUD regulations have been interpreted – based on resident privacy – to enable affordable housing providers to ask questions about sexual orientation and gender identity if that the housing at issue has shared bathing facilities. This has included permitting providers to adopt rules restricting those who fall under sexual orientation and gender identity conditions to only use shared bathing facilities when nobody else is present.
“You can’t say no you can’t use it, but you can regulate when and how they use it,” Moore said.
Limited English Proficiency (LEP) getting attention
Another area getting much attention is Limited English Proficiency (LEP), which is aimed at attempting to keep communication means open for applicants or residents who don’t speak English. Affordable housing providers must provide “meaningful access” to all programs and services and be able to communicate that in a way that doesn’t discriminate against those who don’t speak English.
According to Moore, unlike conventional properties, affordable communities are required to have an LEP plan. If the general demographic of the community is non-English speaking, the property has an obligation to provide LEP assistance.
“If there are is high concentration of people who don’t speak English, they have to put together an LEP plan,” he said. “Most times, they’ll come in with a family member to translate. But if someone comes in and they can’t speak English, you have to take reasonable steps to ensure meaningful access to the person regardless of the language he or she speaks.”
Moore said a property can satisfy the regulation by simply reaching out for assistance to a community program that assists the demographic. HUD.gov and community resources are available to help landlords provide LEP assistance.
Housing providers should maintain strict compliance policies and document
Housing providers should be aware of these and other changes in Fair Housing, and maintain strict policies of compliance to avoid red tape. Moore says it’s critical that landlords review policies and train their employees to identify Fair Housing issues.
Also, housing providers should document when a potential Fair Housing issue arises. Properties that must defend claims and don’t have written verification of a request for accommodation or other documentation can quickly find themselves under the microscope of the federal government.
“If you’ve ever been involved in litigation, juries and judges and the government like documents,” Moore said. “If you don’t have that document, it didn’t happen. If you don’t have that document, it’s ‘he said, she said’. Now we’re judging credibility.”
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