Legally Speaking

A look at national origin discrimination under the Biden Administration

By Judy Drickey-Prohow

Anyone who has taken a fair-housing class knows that the Fair Housing Act (FHA) prohibits landlords from discriminating against any person because of that person’s national origin.

For years this prohibition was interpreted to mean only that apartment owners could not fail or refuse to rent to anyone or discriminate against anyone in connection with the terms and conditions of their housing because of the country from which the applicant or the applicant’s ancestors came.

Like all things involving fair housing, the interpretation of what constitutes national origin discrimination has expanded over the last several years, most commonly to include other issues such as discrimination against a person because of the food he/she eats, the clothing the person wears, the language the person speaks, and how different cultures celebrate holidays and festivals.

With the inauguration of Joseph Biden as President of the United States, another issue is making its way to the forefront of fair housing. That issue involves discrimination against a person because of the person’s immigration status.

This issue is not entirely new. The outlines of it were made during the presidential administration of Barack Obama, but during the four years that Donald Trump held that office, HUD was directed not to follow the original guidance.

HUD is now regrouping, with an emphasis on the intersection of immigration and fair housing, and is looking to actively challenge those situations where owners have engaged in conduct that creates barriers to housing accessibility. HUD’s rationale for this approach is based on the plain language of the FHA. That language makes it unlawful to discriminate against any person in connection with the rental of a dwelling or the terms and conditions of tenancy because of that person’s national origin. Nothing in the FHA limits the protections of that law only to persons who have legal status in the U.S. As a result, it follows that everyone – regardless of their legal status – is entitled to the protections of the FHA as long as that person is in the country.

The position that HUD has taken in the past, and is again taking, is that properties may not take a person’s immigration status into account when they are asked to allow a person to rent there, or when interacting with them in the course of their residency.

The old HUD guidance on this, which is being resurrected now, made it clear, for example, that owners are not permitted to inquire about a person’s legal status either at the time of the application or any other

time during the person’s residency. That means that requests for a green card or a work visa or any other similar documents that are indicative of legal status in the U.S. are by themselves considered a violation of the FHA.

Just as an owner cannot ask a person from where they come, the owner may not inquire, directly or indirectly, as to whether a person is legally in the U.S. during the application process or thereafter.

Of course, this raises practical questions.

One common issue is proof of identity. Under the HUD standards, owners may not require proof of an Arizona drivers’ license, for example, or a U.S. passport, or other official documents generated in the U.S. to prove identity.

This does not mean that a Costco card with a person’s picture on it is sufficient, but it does mean that the owner must accept, for example, an ID card from another country, a non-U.S. passport, documents issued by a consulate, or any other reliable documents that demonstrate that the person is who the person says he or she is.

Another common issue involves screening. Typically, owners screen applicants to determine their credit history, their rental history, and to see if the applicant has a criminal history that would pose a serious risk of harm to the property or to other residents.

HUD’s direction on this has been that owners may continue to screen applicants but must sometimes use alternative methods if the applicant does not have a Social Security number, for example. According to HUD’s guidance, if the applicant has no Social Security number, then the property should try to screen using an iTin number. If the applicant does not have either a Social Security number of an iTin number, then the property should screen using the person’s name and date of birth, if no other method is possible.

While this kind of screening may result in no information being provided, that by itself is no reason to decline the application because the owner will typically have alternative methods to protect themselves and their property. This includes requiring a higher security deposit or a guarantor – consistent with how the property would respond if the applicant was a young adult who just turned 18 and had no history that is accessible at the time of the application.

While these have been the most common issues in the past, other issues are bound to come up as more creative enforcement is put in place. With these changes and others that are likely to become commonplace over the next several years, property owners and managers are strongly encouraged not to act on their gut feelings.

Instead, they should consult legal counsel to discuss new issues in detail and formulate an appropriate response to all of them – keeping in mind that it is much less expensive to deal with these issues upfront than to face a HUD complaint and possible lawsuit in the near future.

Judy Drickey-Prohow is Senior Attorney with the Law Office of Scott M. Clark in Tucson. She may be reached at (520) 241-1846 or judy@scottclarklaw.com.