Don’t Fail Your Fair Housing Test

Are you and your staff ready for when a tester comes to call? Testing, testing one two three. Leslie joins us to share tips to help ensure that you don’t fail your fair housing test.

Woman talking on the phone with a fair housing tester.

Estimated reading time: 4 minutes

This article will focus on who can be a tester and the more common methods they employ. Being prepared and knowing what to look and listen for can mean the difference between passing the test or a costly lawsuit along with a fair housing complaint.

Who Can Be a Tester?

Testers come from all walks of life. They are employed by various agencies like state fair housing departments, private fair housing advocacy groups, and the Department of Justice. Regardless of who they work for, their job is to ascertain whether you are following the law and are fair housing compliant. 

A tester uses leading questions to target known trouble spots within our industry. Vague or leading questions should immediately raise a red flag in your mind that you are talking to a tester. You need to be sure that you are not saying or doing anything that could be interpreted as a violation.

Testers also employ all forms of contact. The majority of testing is done by phone as it’s the easiest and least expensive, but on-site tests happen as well. Email is also used along with other contact points like social media outlets. Basically, any place a potential resident would cross paths with a leasing agent.

Common Topics Used In Testing

Animals

We all know that there are certain topics or questions that come up when talking with prospective residents that are a little harder to handle. One of the most common questions is about animals or pets. 

Testers will employ a method of giving you just enough information and seeing how you respond. For example, a person calls in and says they are interested in your property but want to make sure their dog would be allowed and that the dog is a German Shepherd. Now your first inclination might be to jump right into your pet policy, and perhaps that breed of dog is against the rules. But notice, the person said their dog, not their pet.

By assuming that the dog is a pet, you could be setting yourself up for a fair housing complaint. Best practices dictate that you can discuss your pet policy as long as you also share your assistance animals policy. Encourage the person to come in and fill out an application, as that is what will genuinely determine eligibility.

Accessibility

Another common question we come across is about accessibility. You receive a phone call that a person would like to take a tour but is in a wheelchair and wants to know how accessible your property is. Perhaps your property isn’t that accessible, especially if it was built before the laws that came into effect that require it. Should you disclose this and offer to recommend a more accessible property? 

While on the surface, you may think you are doing the right thing and being honest, this can also appear as discrimination and steering. The correct thing to do would be to encourage them to visit the property’s website to see more images and, of course, arrange for a tour if they wish. You should never discourage a prospect from coming in to take a tour or fill out an application under any circumstances. Always be warm and welcoming to all and let people make their own choices.

These are just a few topics that can come up during a fair housing test, but anything fair housing-related can be utilized. Regardless of whether you agree with testing and the tactics they are legally allowed to use, you need to be prepared. Proper training is key to ensuring fair housing compliance.

Jonathan (00:12): Hello, everyone. Welcome to episode 40. One of the 'Fair Housing Insiders' we have with us today, Leslie Tucker from Williams, Edelstein and Tucker. And we're going to talk about fair housing testing today, and a couple of questions. We're gonna be covering who can be a tester and what are some different testing methods that are out there. So, Leslie, welcome again to the show. We're always glad to have you with us.

Leslie (00:37): Yes. Always glad to be here. Thanks Jonathan.

Jonathan (00:40): Yeah. So thank you for are helping us out with a common challenge that people onsite face, and that's when a fair housing tester shows up at their property or calls them. So can you give us a little insight into those, into those questions? Like who can be a tester and what are some different methods that they're using right now?

Leslie (00:59): Sure. Yeah. So for those who aren't familiar with the testing process, testing occurs when an individual contacts your property. These individuals are typically going to be working with some type of agency, a state fair housing group, a private fair housing advocacy group the department of job something like that. So an individual working with these groups will contact your property in a variety of different methods. And they're gonna be asking you about you know, how to apply what it's like there you know, different questions about tendency, these people, people don't wanna live at your property. They don't have any interest in applying or living there. They're just pretending. So these questions are they're specifically focused on figuring out whether you're going to say something or do something that might be a fair housing violation whether it violates your state fair housing laws or the federal fair housing act, that's what they are trying to get at.

Leslie (02:09): And sometimes the questions that they ask you are going to be very leading and hopefully should put up some red flags in your mind that, Hey, I might be talking to a tester cause they're asking you about A, B and C. And you know, you really need to be on your guard to make sure that you're not seeing anything or doing anything that could be interpreted as a violation. But we're gonna talk about some kind of specific examples of what might be some topics they ask about. And like we said, the methods of contact can vary from test to test. The majority of testing nowadays is done via telephone. And I think for obvious reasons, those being that telephone testing is very cheap they don't have to pay these people to visit anywhere or for their, you know, for more time for travel.

Leslie (03:07): It's, easy. They can get multiple tests done in a day, whereas, you know, in-person testing takes a little bit longer, but in-person testing still does occur. Be aware of that. Testing can also occur via email or if you have social media platforms set up that where people can contact you to ask questions that's also starting to be a more common method of contact as well for tests. So all around the board you know, you're not really safe from for any particular method of contact.

Jonathan (03:42): Mm-hmm

Leslie (03:42): So just be aware that any contact with your property could potentially be a test, right?

Jonathan (03:49): And it's something that onsite professionals they're pretty used to. I mean, besides fair housing testers they're a lot of property management companies are using MIS three shops is a way to gauge performance from their onsite leasing professionals and managers. So this is pretty common and yeah, community communities should be used to it. Right?

Leslie (04:13): And you know, a lot of people are surprised by the fact that these testers, considering that they really have no interest in the properties, they don't intend to apply or to move in. You know, why do they have a right to file a complaint against me or to sue me if they don't have any true interest in my property, right? And that's really, I know that's confusing for people and unfortunately its just the law. The courts have established very clearly that testers do have standing to to bring a suit based on these tests against housing providers.

Jonathan (04:54): Right? Yep. So gotta deal with it. Right. So let's look at a couple of scenarios, and we'll get your feedback on that. And I know that will help our audience kind of visualize what may has already happened to them or prepare them for something that could happen in the future. So our first scenario is a caller that asks about bringing a pet, but the leasing professional doesn't ask the right questions. So let's look at the scenario, we'll get your comments on it. Leslie.

Tester (05:24): Good morning. I'm thinking about applying at your property, but I wanted to make sure I'd be able to bring my dog. Is he allowed to live there?

Leasing Consultant (05:31): Yes, we are pet friendly here. You would just be required to pay a $200 pet deposit. However, we do have some breed restrictions. What type of dog is he?

Tester (05:41): He's a German Shepard.

Leasing Consultant (05:43): I'm sorry. That is one of the restricted breeds. He wouldn't be permitted to live with you at this property.

Leslie (05:48): So Jonathan, in this situation this is an extremely common topic being tested. And I think that the reason that it's so commonly tested is because so many people get it wrong. And you just kind of need to know what to do when you're faced with this situation. So I'm glad we're talking about it. The caller, the tester in this situation just basically said, can I bring my dog? There was no mention of whether the dog was a pet. There was no mention of whether the dog was an assistance animal. If she just said, can I bring my dog? The agents immediately jumped right into what the property's pet policy is. He made an assumption and that kind of assumption is exactly what the testers are looking for and they're gonna immediately you know, basically find that there's a violation here.

Leslie (06:51): Right? So it's so important that when you get animal calls who don't make assumptions, that the caller is talking about a pet or talking about an assistance animal. And I think testers intentionally leave it sometimes vague in for that very purpose. So it's absolutely okay to talk about what your pet policy is. If you require a pet deposit, that's fine to talk out. If you have pet restrictions or weight restrictions, that's okay to talk about too. However, it's super important, if you're gonna talk about your pet policy, that you follow it up with your assistance animal policy which doesn't matter what type of property you are, you have an assistance animal policy, right? Cause it's the law. So don't let these callers trip you up, whether you're talking to someone in person or a caller, don't let, 'em trip you up by confusing you with animal questions, just give both policies and don't make a call. Whether any particular animal is gonna be allowed on the property on a phone call that happens, you know, during your application process. So don't give a yes or a no talk about your policies and then, you know, you're basically safe from testers in that way.

Jonathan (08:09): Perfect. Perfect. Yeah. Thank you so much for that explanation. Great scenario and a great reminder for all of our audience. So let's take a look at our second scenario and we'll get your feedback on that now.

Tester (08:20): Hello, I'm interested in this property. Can I come take a tour?

Leasing Consultant (08:23): Absolutely. Come by anytime today.

Tester (08:26): I should mention that I use a wheelchair. Is this property accessible? So I can get around?

Leasing Consultant (08:31): Actually this property was built before all those accessibility laws were passed. So we do have a lot of stairs. I can recommend another property that is accessible if you'd like.

Leslie (08:40): So Jonathan, this is a good scenario, a testing scenario because the tester has asked a question that the agent is just responding very honestly to there's no indication that the employee here has any sort of ill will or is acting, you know, intentionally discriminatory. But unfortunately you know, because the employee has, you know, told the truth and said, oh, well actually, you know, our property is not accessible. It has stairs or, you know, for whatever reason it is not accessible, that response has now effectively discouraged this, you know, potential applicants for all this person knows from applying. And they've kind of steered them to another property that, that is accessible that is discrimination based on a disability. And this very well could end up you know, in a lawsuit or fair housing complaint because of this response because of this test.

Leslie (09:55): It very well may be true that the property is not accessible and for lots of properties, that's not illegal. You know, if a property is built prior to 1991 which is when the Fair Housing Act accessibility requirements went into effect, you know, there's a lot of properties that just aren't accessible. And that's okay. That's just the way it is. So it very well may be true. There's stairs. There's not ramps. The units may not be accessible because they're old. But that doesn't necessarily mean that you need to tell everyone about the fact that your property is not accessible, the correct in answer, the more appropriate answer in this scenario. I think would've been for the employee to say you know, why don't you come on by and take a tour? And you can kind of decide if you'd feel comfortable here.

Leslie (10:52): The employee could also you know, direct a caller to their website. If the website has pictures of the community or the units or something like that. So the person can get a better idea of what the community may look like. But the point is you, as an employee, as management are not giving information that may discourage the person from applying always, always be welcoming, always encourage people to apply. Regardless of what they're saying here, it's, you know, about the fact that they use a wheelchair well, you know, come on by put in an application, come take a tour, always be welcoming. Other scenarios that might involve this are if someone calls about their criminal history, come on in, fill out an application, we'll process it. So, you know, from a sales perspective, that's always the best policy, right. Is to always encourage people to come on in and put in an application. And then you'll, you know, you'll process it according to your policies, but never, ever discourage people regardless of, of kind of what they're asking you.

Jonathan (12:05): Ah, that's excellent. Yeah. Thank you so much for that explanation. A nice little visual there from a sales perspective to help well, all of our audience. So Leslie, thank you so much for those answers. We are introducing a new, fun way to end up our shows and it's called the Fair Housing Fast Five. I'm gonna ask you five questions, put you on the spot here and let's see if you can answer them in less than 60 seconds. So five questions, less than 60 seconds. Are you nervous?

Leslie (12:48): Well, yeah, 60 seconds is a minute, so , we'll see ifI can do this.

Jonathan (12:52): I know it's like, this is, this is gonna be so much fun though. It's like, we're doing game show here. Let's live in it up for our audience, you know, and see if you would answer the questions in the same way. So five questions, 60 seconds on the clock. I'm gonna time it and we are gonna hit the clock. And are you ready?

Leslie (13:14): I suppose.

Jonathan (13:16): Okay, here we go. Hitting the clock. Now question number one, who can be a tester?

Leslie (13:25): People who work for agencies private DOJ state fair housing agencies.

Jonathan (13:35): Awesome. What are some different testing methods?

Leslie (13:40): In person, telephone, email, social media.

Jonathan (13:46): Beautiful. What might testers ask about?

Leslie (13:50): Oh gosh, a number of topics, availability, criminal history, occupancy, animals, accessibility.

Jonathan (14:00): What happens if a tester finds a violation?

Leslie (14:06): They can file a fair housing complaint with HUD within a year of the test or they can file a lawsuit within two years of the test.

Jonathan (14:15): What's the best way to answer an animal question?

Leslie (14:21): Talk about your pet policy. If you have one always talk about your assistance animal policy as well and never give a definite yes or no about any animal question.

Jonathan (14:32): That was awesome. Almost that was about 68 to 70 seconds. So just over the time limit, but that was great though. It is really difficult to answer that fair housing questions like that in under 60 seconds. So thank you for playing and tuning into our show. Thank you so much.

Leslie (14:51): Thanks. That was fun. .

Jonathan (14:54): We are glad to have you on this show. We're looking forward to having you again, Leslie, on future episodes here in 2022 and for our audience. Thank you so much for participating. We really appreciate your feedback on our YouTube channel and Instagram, if you have any questions you would like for future episodes, be sure to keep those coming in. We're going to have a future show that we're gonna be highlighting your questions that you have. So please remember to share those with us and we look forward to answering them in a future episode. So this has been episode 41. Thank you. Wonderful community. Thank you again, Leslie. We'll see you guys next time. Take care.

Speaker 6 (15:31): Okay.

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The Fair Housing Institute

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