What You Need to Know About Fair Housing

Fair housing issues are constantly evolving. Learn what you need to know now.

By ANNE SADOVSKY, CAM, CAPS, NAAEI Advanced Facilitator, professional speaker and consultant

Please note, Anne Sadovsky is not an attorney. The information in this article does not, and is not intended to, constitute legal advice. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter.

We might be busy with the repercussions of COVID-19 and rental assistance, but fair housing issues persist. In fact, there are many headlines claiming the pandemic has exacerbated discrimination. Often, when a complaint is made against an apartment owner or manager, it’s because he or she wasn’t properly trained, educated or following up with his or her onsite teams.

In honor of Fair Housing Month, let’s talk about discrimination.

In September, The U.S. Department of Housing and Urban Development awarded almost $50 million to fair housing organizations across the country to conduct investigations, testing to identify discrimination in the rental and sales markets specifically and filing fair housing complaints. This money supports the effort to prevent and stop discrimination locally, statewide and nationally.

Many in our industry feel that testing is intrusive and unfair. In my opinion, testing is similar to hidden police officers issuing speeding tickets. Fair or not, it is legal, and most often justifiable when a driver is going 80 mph in a 50 mph zone.

Before you jump to conclusions about me, please know that I am a 53-year loyal industry veteran. I am also a realist. And there is a lot of discrimination going on.

Most fair housing complaints are filed against individual owners of smaller properties, many of whom are also the property managers. That doesn’t mean that mistakes aren’t made by large professional companies. Ongoing education is critical to avoid expensive mistakes.

According to HUD’s Office of Policy Development and Research, 55% of complaints are regarding disabilities. Race and color make up 20%, national origin makes up 8%, familial status makes up 9%, sex (including gender identity and sexual orientation) makes up 6%, and religion makes up 1%. The study shows the remaining 9% as “other.”

Starting with disabilities, make sure you are very clear about what that means. The biggest misunderstanding is that all disabilities are visible. That’s far from the truth.

According to HUD’s disability overview page on its website, a person with a disability is defined as the below.

“Who Is a Person with a Disability?”

Federal nondiscrimination laws define a person with a disability to include any (1) individual with a physical or mental impairment that substantially limits one or more major life activities; (2) individual with a record of such impairment; or (3) individual who is regarded as having such an impairment.

In general, a physical or mental impairment includes, but is not limited to, examples of conditions such as orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus (HIV), developmental disabilities, mental illness, drug addiction and alcoholism.

Some impairments are readily observable, while others may be invisible. Observable impairments may include, but are not limited to, blindness or low vision, deafness or being hard of hearing, mobility limitations, and other types of impairments with observable symptoms or effects, such as intellectual impairments (including some types of autism), neurological impairments (e.g., stroke, Parkinson’s disease, cerebral palsy, epilepsy, or brain injury), mental illness, or other diseases or conditions that affect major life activities or bodily functions.

The term “major life activities” includes those activities that are important to daily life. Major life activities include, for example, walking, speaking, hearing, seeing, breathing, working, learning, performing manual tasks, and caring for oneself. Other major life activities are not on this list but include, according to HUD, the operation of major bodily activities, such as the functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems.

No wonder we are confused and make mistakes. Many industry professionals do not realize, for example, that drug addiction and alcoholism are considered disabilities. Nor do they have the medical understanding of compulsive hoarders and how their behavior conflicts with local laws related to health and public safety.

Sex (including gender identity and sexual orientation), Familial Status, Race, Color and National Origin

I expect the 6% of complaints that are sexrelated will grow. The LGBTQAI group has become more visible, vocal and eager to seek protection. For example, we face a challenge when a person’s physical appearance is different from the photo and name on their ID. Third-party screening services can guide you through this process.

Next, be very clear on what family status means. It is NOT an adult over the age of 18 living with a parent, sibling or another relative. It is NOT persons who are married. The definition according to the Texas Workforce Commission is a family in which one of more children under age 18 live with a parents, a person who has legal custody of the child or children or designees of the parent or legal custodian with parent or custodian’s written permission; anyone securing legal custody of a child under age 18; and/or pregnant women.

What is our biggest challenge here? Occupancy standards! The old two-perbedroom-plus-one no longer works. What does work is establishing an occupancy number for each floor plan at each property. Yes, a den, dining and/or loft could be considered a sleeping space.

Addressing race, color and national origin, we have come a long way. However, discrimination still takes place against persons of color, persons from other countries – even because of their accent. Once again, your screening service is important, as it never meets, sees nor speaks with applicants.

Some of the seven protected classes have a few newer rulings. For example, under sex (including gender identity and sexual orientation), protection has been added for the LGBTQAI community and women who are domestic violence survivors. Sexual harassment of women by housing providers is frequent and creates very costly lawsuits. Fines are often in the millions, plus owners will lose their properties.

States, counties and cities can add protected classes. Be sure that you research and stay advised of additions. Sometimes the rulings regard source of income, criminal background checks and even marital status.

Here is my best advice: Be active in your local apartment association, attend classes, keep your team members updated and educated, use a third-party company for background and financial information. Have a knowledgeable attorney and know that the local housing authorities are not your enemy. They are doing their job and they’re often a good source of information. They are not your enemy!

Update your Community Policies (we used to call them “Rules and Regulations”) regularly and remember that they are legally enforceable. And remember, our words matter, both when spoken and written. I have heard a few horror stories about old, outdated documents and policies causing big problems.

Fair housing is just one of many challenges we face in the wonderful world of property management. I hope you love the industry as much as I do.

Consider attending HAA’s upcoming fair housing program called “Fair Housing = Happy Housing” with Megan Orser on April 12. It’s part of HAA’s professional development series called Avenues. See Page 22 for more information. And stay tuned for another fair housing program by HAA at the end of the year with HAA General Counsel Howard Bookstaff.

Anne Sadovsky, CAM, CAPS, NAAEI Advanced Facilitator is a professional speaker and consultant specializing in fair housing, motivational speaking, keynote opportunities and webinars. She’s a people skills specialist and a frequent speaker for the Houston Apartment Association. Anne can be reached at anne@annesadovsky.com. Please note, Anne is not an attorney. The information in this article does not, and is not intended to, constitute legal advice. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter.