Keep Your Eye on the (Fair) Ball

3d illustration of a baseball bat smashing a baseball ball

It’s April and that means that everywhere in the U.S., Baseball’s Opening Day is upon us; oh and it’s also Fair Housing Month!  It’s likely you look forward to each of these annual events a little differently – I surely do!  But just like there’s no crying in baseball, there’s no crying in fair housing – there’s just being knowledgeable and prepared.  Oh – and never, ever take your eye off the ball!

So, let’s take a quick look at some of the fair housing balls we have to watch for – some are familiar, some not so much.  It is most certainly a time to be in the know on fair housing.

First and foremost, the seven federally protected classes remain in good standing.  You may neither discriminate against or show a preference in any aspect of housing based upon race, color, religion, national origin, sex, familial status or disability.  And, as always, be aware that many cities and states protect additional classes or residents: such as students, military service members, sexual orientation, to name a few.

Secondly, and recently, Dr. Ben Carson has been confirmed as the new Secretary of HUD.  Dr. Carson has promised to “aggressively enforce the law” and will take a “listening tour” with seasoned HUD officers to understand housing.  As the year progresses, we will learn more about the paths he wants the agency to take.

Thirdly, statistics show us that disability claims are the most numerous these days.  In its yearend report, HUD noted 55% of all fair housing charges are related to disability discrimination.  In second place is race at 25%.  Tied for a distant third are familial status and national origin.  Typically, the same issues in the media and on the lips of everyday people, will be the issues that get fair housing attention!  The report also finds that 69% of charges are filed by non-profit advocacy groups.  HUD and the Department of Justice simply enjoins the action.  Stay informed!

Fourth, disparate impact is alive and well and changing our laws right now.  Disparate impact occurs when a policy is equally and completely enforced, but the impact of the policy weighs heavier on one or more protected classes.  Late last year HUD found that disparate impact was so evident in the use of arrest records that they issued a guidance banning the use of arrest records in disqualifying prospects.  The guidance went on to require that owners and operators re-evaluate and adjust all criminal screening criteria based on the nature of the crime, the look-back period, the record since the crime and evaluate plea bargains, adjudicated judgments, etc.  Got your eye on that ball?

Fifth, there’s much going on with familial status.  It focuses in two areas – poorly conceived policies and occupancy standards.  First, policies: you may recall at the beginning of last year, San Antonio reported a housing rights organization was actively surveying residents seeking their opinions on whether they were being treated fairly!!!  Then the Fort Worth office of HUD pursued charges against 4 management companies for pool policies requiring those under the age of 14 years be accompanied by a caregiver over age 18.  These are very alarming times when agencies are considering those types of protections.  Always be sure that your policies address incidents and conditions for all residents and guests. Address the issue, not the person.

Potential changes to occupancy standards are even scarier – NAA issued an alert that fair housing advocates in three states were addressing the standard of two persons per bedroom being “overly restrictive” and suggesting that owners use local housing codes to determine how many people could live in an apartment.  Want to get even more scared?  The California Department of Fair Employment and Housing is considering adopting occupancy standards that would require you to consider all livable space in the unit, allowing up to 6 people in a 1 bedroom; 9 in a 2 bedroom and 15 in a 3 bedroom.  This has not yet passed – but that is quite a big ball and we have got to keep watching!

Last and, of course, NOT least, we need to address disability protections.  Obviously, we all know the definition of disability, we know that we respond to those needs with accommodations and/or modifications and we know that we don’t ask about a disability, we wait to be told about a disability by the prospect or resident.  There are special areas here to discuss:

You are always permitted the opportunity to request health care professional verification of an unseen or partially unseen disability and its relationship the accommodation or modification requested! Always!  HUD has clearly stated that there must be a “nexus” between the request and the disability.  A great example from an attorney was a resident who needed a banned breed service dog to assist with dyslexia – there’s no way to have an animal assist in reading – no nexus

HUD has also clearly described the health care provider has to have an “ongoing therapeutic relationship” with the individual.  So online doctors or online “office” visits with someone found online do not fill this requirement.  When confronted with a possible sham – simply do your homework – in fact, do your research for every submitted authority – let’s be fair!!

Let’s talk about documentation required.  Use a standard form that has had legal review.  HUD says we cannot demand or require our form be used, but sell its efficiency and quick turnaround.  Better not to accept “doctor’s notes” as they may not address the questions linking the request to the disability.  Technically an oral request has to be considered, but reduce the basics to writing as much as possible.

ESA’s and service certifications. Get the lingo right here – all animals are “assistance” or “assistive” animals – only some are service, some are ESA or emotional support animals.  Don’t get fooled by the advocacy group shoppers wanting to trap you into using the wrong language.  Service animals may receive very specific training in a special skill; ESA’s have no idea they serve any special purpose – there is no training to be an ESA.  So, the certificate a resident presents to “prove” the animal and need to waive your rules is legitimate does not fit your need.  Politely push back and say while the document speaks to the animal, it does not identify or link “remember nexus” the animal to the resident’s need.  You require evidence for the resident, not the animal.  As always, if it looks fake, push back – do your homework!

One more thing, I’m not an attorney! Seek out proper legal advice. There are many competent AATC Landlord/Housing Attorneys that can advise you the proper course of action in any given circumstance.

It April. Time to pay your taxes, buy bleacher seat tickets and check up on your fair housing knowledge.  More changing all the time – medical marijuana, income protections, liability for ANY onsite discrimination (even by residents) are all on the roster!!  Keep your eye on the ball.

Susan E. Weston, CAM CAPS, NAAEI Senior Faculty, The Susan Weston Company, serves as an instructor for many of AATC’s NAA Credential and Educational Programs. For more information on any of our upcoming Career Development Programs, contact Val Thurwanger at vthurwanger@aatcnet.org or call 817-616-0358.