Guest view: Fair housing policies aren’t just relevant to residential landlords anymore

Housing discrimination claims are on the rise. The Pennsylvania Human Relations Commission (PHRC) and the U.S. Department of Housing and Urban Development (HUD), the two agencies charged with investigating claims of housing discrimination in our state, are busier than ever. Now, more than ever, companies need to be aware of fair housing issues to avoid claims.

What Is Fair Housing?

Federal, state, and local laws prohibit discrimination in housing. What this means and who it impacts, however, is much broader than it seems at first glance. At its core, fair housing laws prohibit treating people differently based on the way they look, their background, or their lifestyle.

Sure, residential landlords know that they cannot refuse to rent to someone based on their race, color, religion, sex, familial status, national origin, or disability. But, fair housing laws apply to more than just residential landlords, protect more than just these seven classes of people, and apply to more than just the renting of homes.

Fair housing laws prohibit discrimination of any kind in connection with the providing of housing services, such as renting and selling. They also apply to people and businesses whose actions could impact housing, and, in Pennsylvania, fair housing laws expressly apply to commercial properties. To understand the breadth of fair housing’s reach, consider the following:

  • A municipality that has an ordinance that prohibits certain breeds of dogs can be liable for fair housing violations because it criminalizes a disabled resident’s possession of a pitbull that has been trained as a service animal.
  • An insurance company that charges higher liability premiums to rental properties that have playgrounds on site commits a fair housing violation because its premium structure discriminates against families with children.
  • A real estate agent who refuses to show a home to a buyer because his race is not consistent with the neighborhood demographics can be liable for fair housing violations, even though he is not a landlord.
  • A landlord who refuses to allow a disabled tenant to make modifications to her rental unit can be sued for violating the tenant’s fair housing rights.
  • A commercial landlord who refuses to allow his tenant to bring her service animal into her store commits a fair housing violation, even though no “housing” is at issue.
  • A landscaping contractor who sexually harasses a resident in a community in which he works can be sued for fair housing violations.

While federal law protects against actions taken because of race, color, religion, sex, familial status, national origin, or disability (the seven “protected classes”) as discussed above, state and local laws expand these protected classes to include many other characteristics, such as age, sexual orientation or identity, student status, source of income, veteran status, and marital status.

How Do Violations Occur?

Importantly, intent to discriminate is not a required element of a claim for a fair housing violation. While one form of discrimination is based on, and requires, a discriminatory intent, many violations occur simply because the violator is not aware that he is doing anything wrong. Other forms of discrimination are based on the discriminatory impact that an individual’s or company’s otherwise-legitimate policies cause to those who are in a protected class. An example of this is the municipality referenced above that restricts certain breeds of dogs.

What Happens If a Violation Occurs?

When a fair housing violation occurs, the victim can file a lawsuit in the state or federal courts and/or file a complaint with the PHRC and/or HUD. In the latter case, an investigation is conducted by PHRC/HUD and a determination is made of whether a violation occurred. If PHRC/HUD determine that a violation has occurred, it will try to mediate a result between the parties. If mediation is not successful, a lawsuit usually follows.

The penalties for fair housing violations can be substantial. Typically, they can include compensatory damages (including embarrassment and emotional distress damages), civil penalties, costs that PHRC and/or HUD incur in investigating the claim, punitive damages, and any attorney’s fees the victim incurs. In addition, requirements are typically imposed upon a violator to correct any wrongful conduct, undertake actions to ensure that future violations do not occur, and report efforts made to avoid fair housing claims and any claims asserted by other victims to PHRC and/or HUD, usually for a three to five year period.

What Can You Do to Avoid Violations?

First, know the protected classes under your state and local laws. Without an understanding of who is protected, it is almost impossible to avoid the risk of a fair housing infraction. And, while it is easy to say that you will just treat everyone the same, this is not so easy to do in practice; and, in fact, treating everyone the same could give rise to a fair housing violation (for example, when a landlord refuses to allow a disabled tenant to have an emotional support animal because of its no-pet policy).

Second, educate and train your staff on a regular basis. Because the universe of potential fair housing violations is so broad and impacts so many people (in addition to landlords and real estate professionals), proper education and training is of paramount importance. If you or your staff do not know the rules of fair housing, violations will occur.

Third, have comprehensive policies in place that prohibit discrimination of any kind. If your staff knows what is expected of them, it is more likely that violations can be avoided. Also, having good policies in place could limit your liability when an inadvertent violation occurs.

Finally, take claims of discrimination seriously. This is important for two main reasons: first, if you promptly investigate a claim of discrimination and address it, in many cases, the accuser will not proceed against you. Many accusers file lawsuits or complaints with PHRC or HUD primarily because they believe that their claims were not taken seriously and that they were disrespected. Second, the failure to investigate a claim of discrimination can constitute a separate fair housing violation. In this case, you could be liable for failing to investigate a claim even if you are successful in defending against the underlying claim.

The Take-Away

Fair housing claims are serious business. Properly preparing before a claim is asserted will save you significant time and money if a claim is filed. The investment made now to prevent fair housing claims will pale in comparison to the consequences of having a claim filed against you.

Steven M. Williams provides a full range of legal services to help his clients avoid and resolve legal problems and maximize the success of their businesses. He concentrates his practice in the areas of real estate law, landlord and tenant law, condominium and homeowner association law, commercial litigation, employment law, construction, and business and corporate law. Steve is a frequent writer and speaker on an array of real estate, business, and employment topics.

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