Episode 27 of Fair Housing Insiders
The Fair Housing Act makes it illegal for a housing provider to attempt to influence where a prospect lives due to the prospect’s race, color, religion, national origin, sex, familial status, or disabilities.
Estimated reading time: 7 minutes
Table of contents
Highlights of Episode 27 – Fair Housing and Steering
Important Reminders About Illegal Steering
Federal vs. State Laws
Many states’ laws include additional protected categories, so depending on which state the housing is located in, legal protections may extend beyond the seven federally protected categories. For example, in addition to the seven categories listed above, California’s fair housing law also protects prospects on the basis of their citizenship, immigration status, primary language, age, sexual orientation, gender identity and expression, genetic information, marital status, source of income, and military or veteran status.
It is important for housing providers to be aware of the state or local protected categories applicable to their housing. The term “housing provider” is intended to include persons or companies who are selling or leasing homes or apartments and includes all their employees. Throughout this article, the federal, state, and local protected categories will be referred to as “protected categories” to avoid repeating these categories.
Elements of Steering
The two elements of a steering violation are 1) an effort to influence a prospect’s choice of a house or apartment; 2) the housing provider’s effort is related to the prospect’s protected category. Notably, this “effort to influence” does not have to be malicious or result in injury to the prospect in order to establish illegal steering.
In other words, all steering is illegal even when it is well-intentioned. There are many fair housing cases involving a housing provider who sincerely attempted to create a safer environment for a family, direct a non-English speaking prospect to a neighborhood where she could easily communicate with her neighbors, or encourage a wheelchair user to live on the first floor.
The general rule is that it is up to the applicant to determine where she wishes to live, and efforts by a housing provider to encourage, discourage, make inferences, or redirect a prospect because of her children, disability, race, ethnicity, or any other protected category are illegal acts of steering and are prohibited by the Fair Housing Act.
Prospects may be clear about their preferences upfront, which is often helpful in narrowing their housing search. However, a housing provider should never participate in assisting a prospect to locate an apartment or home in an area without people of a certain protected category. (“I’d really like an apartment without a lot of kids. They’re so noisy!”) Just as important as not discouraging or directing prospects based upon their improper requests is refusing to answer questions that relate in any way to a property’s demographics. Responding to a prospect’s questions about the percentage of Hispanic tenants, the number of children, diversity of the area, or crime statistics (just to name a few) could very well have the effect of encouraging the prospect. However, it could also have the opposite effect, and for liability purposes, the motivation for a prospect’s questions does not matter. It is just safer not to answer these types of questions.
Housing providers should also not attempt to discourage or direct a prospect based on the housing provider’s assumptions. (Directing a Caucasian family away from a majority-Asian neighborhood based on the assumption that the Caucasian family wouldn’t feel comfortable.) Steering is illegal even when the housing provider is attempting to protect the prospect from one or more of the neighbors that are known to be prejudiced against people in the prospect’s protected category. Housing should be determined based only upon availability and any provided by the applicant unless those preferences exhibit bigotry. For example, if an applicant with young children requests an apartment next to the playground, it would be appropriate to show those.
Housing providers should not participate in a request by an Asian family to only show their units close to other Asian tenants, right? That is not bigotry, but it IS based on their ethnicity.
Establish a Policy on the Order You Show Vacancies
It is helpful if you have a general policy for the order in which you show or offer vacancies. The order can be based on the units that have been vacant the longest, or the order can be based on the prospect’s answers to interview questions. To defend against claims of illegal steering, if you use preferences obtained from the prospect, it is a good idea to keep notes or guest cards describing the areas of the community the prospect requested, and the reasons for their preferences.
Statements to Avoid
Here’s a short list of some common statements that risk liability based on illegal steering. Remember any and all protected categories can be substituted in these examples.
- Since you have several children, our experience has shown that we will have fewer complaints from neighbors if you live on the first floor.
- That area of the property is viewed as our “quiet” area, so you should choose an apartment in a different area closer to other young families.
- I just don’t see you as fitting into this community, I’m sure I can find you a different property where you would be more comfortable.
- I’m not permitted to be a bigot in my work, but if you are, it’s fine with me. Just tell me what you are looking for and I’ll find it.
- This property has a lot of Mexican Americans, so you should fit right in.
- I own several duplexes in this area, and you will probably feel more comfortable in one of my other duplexes.
- I assume from the last name you are Jewish like me. I have a vacant apartment that is next door to another Jewish family. Would you like to see it?
- The only available unit we have is on the second floor, so since I see you use a wheelchair, I can put you on a waitlist for a first-floor unit.
For families with school-age children, the local schools are often a topic of discussion between housing providers and prospects. Since the quality of the local schools can be a somewhat disguised method for describing the racial and national origin characteristics of the surrounding community, the National Association of Realtors, recommends that agents use caution when answering questions about the local schools. To avoid inadvertently steering prospects, housing providers should only discuss the known facts about the schools, and not include their personal opinions about the quality of the schools. It may be useful to maintain a list of resources containing factual information about the local schools. When the topic of local schools is raised, you can refer the prospect to your list of websites, instead of offering your personal opinions. Finally, instead of applying your personal criteria for what are good or bad schools, merely ask the prospect for their criteria, and then refer the prospect to the appropriate resource, with the ultimate goal of encouraging prospects to make their own judgments.
It’s fine to use sales techniques to encourage a prospect to lease an apartment or house. The methods used to influence a prospect should be related to the positive aspects of the specific housing unit, the amenities of the community, and its location. The efforts to influence a prospect’s choice of a home should never include consideration of either the prospects or the existing residents’ protected categories.
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