TL;DR
- Always encourage people to apply, regardless of background or disability: Discouraging a prospect from applying because you assume their criminal background, income source, or disability status will disqualify them (even if you think you are saving them a fee) can be viewed as illegal discrimination or steering. Let your standard, objective screening process make the decision.
- Handle Assistance Animal (ESA) inquiries with care: When dealing with roommates in student housing, inform them that an assistance animal will be present (specifying the type of animal) without disclosing the owner’s disability, and allow the roommate to request a transfer if they cannot live with the animal. For prospects claiming online ESA letters for restricted breeds, clearly explain your reasonable accommodation and verification process rather than flatly denying them over the phone.
- Maintain professional boundaries regarding personal beliefs and decorations: Avoid discussing your personal religion with residents, as it opens the door to future discrimination claims if you later have to enforce lease violations (like eviction for unpaid rent). Regarding political signs, if your property generally permits residents to hang decorations on their doors or windows, you usually cannot restrict political signs unless they contain extreme hate language.
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Thank you to all our community members who contributed questions over the past few weeks. If you have any questions, be sure to put them in the comments section of any of our episodes on YouTube for a chance to win a gift card as well as be included in future episodes. So let’s dive in and see what is on people’s minds and what the best fair housing practices are.
What is the best course of action when a tenant has an approved accommodation for an assistance animal with regard to roommate notification in student housing? Is it allowed for the housing provider to inform potential roommates that there is an animal approved for that apartment? Or does that inadvertently disclose someone’s disability status?
So we’ve got to weigh the rights of the resident with a disability who has an assistance animal* with the rights of any other roommates living in that apartment. I think the best way of handling this is to inform the other roommates residing in that same apartment that there will be an animal and describe what kind of animal (dog, cat, bird, etc.), because that may be an important fact. Inform them that the animal has been approved as an assistance animal that provides a service or benefit to the animal’s owner, and leave it at that.
Now the roommate(s) can decide whether they are willing to live with the animal or if they have reasons such as allergies or even a phobia that would not allow them to do so. Remember, you can not require someone to live with an animal who cannot do so. You would need to provide an alternative like moving to a different unit.
Would it be considered steering to have a floor or wing in a student housing building that is labeled for international students?
This is a complicated but terrific question! Firstly, this is a question that clearly should be run by your own attorneys who advise your company on these things. That being said, my opinion is that if handled and managed and marketed very carefully, this might be appropriate. For example, you could have activities from various countries and emphasize cultural diversity. That’s fine. But the minute you start saying, if you’re from the United States, you can’t live here, but if you’re from France, you can, now we’re talking about something that will look like illegal steering. So how it is set up is going to make all the difference.
Isn’t it deceitful to get mixed-race models and put pictures of them in a rental office?
Marketing is not just about who lives in your community today. Marketing is also about who will want to live in your community tomorrow. Presenting yourself, for instance, as a place where only one race, let’s say only white people, live, and all the pictures are of white people. That is sending a pretty clear message to anyone who’s not white that they will not fit in easily, which will be a fair housing marketing problem.
If you’re being fully transparent, explain the pictures that you place in the office. For example, certain ones represent various residents engaged in community activities, and some are non-residents but show the community’s potential. We are not trying to trick anybody. We are trying to make sure that how your office is decorated and the pictures you use are welcoming to everybody and show both the people who live there now and representations of people who could possibly live there tomorrow.
In senior housing, which position stays up to date on fair housing and provides training? Is it the CEO, the VP of Ops, etc.?
So it really depends on the individual company and sometimes the individual people that are at the various positions in that company. Smaller companies usually heap things on the CEO. In contrast, larger companies have more staff to distribute the responsibilities for being the person in charge of fair housing training or staying involved and up to date on the most current requirements. That being said, you absolutely need to know who it is for your company, so you know who to go to if you have a question or concern. However your company does it, just make sure everyone that works for your company knows who that person is.
Is there any issue with suggesting someone put in an application and pay the fee when you know their background will not pass a screening or that the property is not accessible?
Let’s flip that question around and ask it in a little bit of a different way. What will it look like if you discourage a prospect from applying to your property because of their criminal background or disability status? This could easily be misconstrued as discrimination.
You might think you’re being a nice person by not getting their hopes up or saving them from the application fee, but what a third party or what a fair housing investigator is going to see is discrimination because you’re discouraging someone based on their background or disability. So to protect yourself and protect your company, I think the best practice is to always invite people to apply and then see what happens and allow your screening process to make the decision.
Would a leasing consultant be in trouble if they told a prospect that public assistance disqualified them from applying for an apartment?
Yes, in many areas of this country, the leasing consultant would be because that conversation involves the source of income, and source of income is a very broad protected category. It’s essential to know how this should be handled in the area where your property is located. Training and using scenarios can help staff decide how to answer questions about the source of income truthfully and factually without discouraging someone from applying.
How should you handle a prospect with a dog that doesn’t meet your pet policy but claims that they have a letter from an online physician stating the dog is an ESA?
This is one of those conversations where you do have to be careful. First of all, you may not be talking to an actual applicant. You might be talking to a tester, as this is a common question used to trip people up. So you want to be extra careful that you are correct in what you say. So first, make it clear that you do not accept certain dogs as pets based on your pet policy, but you do accept dogs who are assistants and, if needed, by a resident with a disability and verified via your reasonable accommodation process.
You can further state that whether the dog is going to be recognized by your property as an assistance animal is going to depend on what happens during the reasonable accommodation process and which paperwork will be provided when they apply. This is not the kind of thing that will be decided over the phone, and by clearly informing the caller of your process, they will have the information they need moving forward.
Are tenants allowed to post political signs at their living area during an election year?
The general rules are that if you permit residents to hang things in their windows, their apartment door, or patio, then you can’t determine what it is unless it’s considered extreme hate language. So it’ll depend on what your policies are and your practices as to whether someone can advertise the political party or individual politicians that they’re rooting for around their apartment.
Can I personally talk to my residents about my religion?
You know, that’s a very common concern and question. I invite you to present this to your own corporate attorney and see what they say. Generally, I would discourage that because it gives too much room for residents to accuse you of discriminating against them because they do not share your religious beliefs.
For example, let’s say you sit down and pray or share your beliefs with one of your residents. And six months later, they don’t pay their rent. And so, you have to start termination proceedings against them. You have now given them a reason to say: “No, it isn’t because I didn’t pay my rent, because I know other people didn’t pay their rent, and they weren’t evicted immediately. I am being evicted because we are not of the same religion.”
When you share your religion openly with people in your workplace, you give them unnecessary reasons to use it against you. So I would suggest that if you want to share your religion, you do it outside of the place where you work, and again, this is only because religion is a protected class under the Fair Housing Act.
We understand how confusing this can be for people who are out there working with residents every day for their job. Here at FHI, we try to remind you of what the law requires of you as housing providers. And sometimes that isn’t very practical. Sometimes it doesn’t feel like it should be that way, but we’re not here to tell you what’s right or wrong. We’re just here to tell you what you need to be careful of to protect yourself as you do your job, to protect your community, to protect your companies from fair housing violations.
*For the most recent HUD memo regarding assistance animals, please click here.
