Fair Housing Policies – Are You Covered?

Fair Housing is serious business.  Fair Housing discrimination charges, or even worse lawsuits, can cost thousands of dollars to defend or settle.  Unfortunately, not every company has adequate Fair Housing policies to minimize the potential for problems.  I know, many of you are thinking that doesn’t apply to you.  You’re insulted.  Of course you have comprehensive Fair Housing policies.  Maybe you do.  But what if you don’t?  Before concluding that you have the situation covered, we invite you to review your policies based on the points made in this article.  If you have addressed all of these issues in your Fair Housing policies, you should be congratulated.  If your policies don’t address the issues discussed, then there is room for improvement. 

Fair Housing policy problems fall into two general areas.  First, many management companies lack adequate Fair Housing policies.  Second, Fair Housing policies are not consistently or adequately followed by onsite personnel.  This second problem is caused by a lack of knowledge, training, or both.  Onsite management would carry out the policies, but often aren’t aware of the policies, or if aware, lack the specific training necessary to carry out the company’s policies.  Comprehensive Fair Housing policies should be designed to promote many goals simultaneously. Policies should inform employees of their legal obligation to comply with all Fair Housing laws.  Policies should serve to educate and provide proper guidance.  Policies should form a solid training foundation.

Policies can and should be used to successfully rebut charges of discrimination.  Fair Housing policies can be presented as strong circumstantial evidence that you are committed to Fair Housing compliance, and your commitment is illustrated by your ongoing training and zero-tolerance policies.  Policies by themselves do not win housing discrimination charges.  However, the policies can significantly bolster the defense when coupled with other evidence, and prevent punitive damage claims.  Specifically, in the typical “he said, she said” type of case, we have successfully argued to the Colorado Civil Rights Division that the alleged discrimination could not have happened because not only is it against company policy, but all onsite team members regularly receive training not to commit the alleged act of discrimination.  In other words, given our client’s policy and continuing training, it is much more likely that the alleged act of discrimination never occurred.

Fair Housing policies should always have a strong general policy statement including the following components.  The company is a Fair Housing provider and is dedicated to complying with all Fair Housing laws at all times. Discriminatory housing practices are illegal.  Discriminatory housing practices violate federal, state, and local law and the company’s Fair Housing policy. As a condition of employment, all employees are required to fully understand their responsibilities regarding Fair Housing laws, the company’s Fair Housing policies, and to comply with those laws and policies at all times.  All company employees from the top down should be required to acknowledge that they have read the company’s Fair Housing policies and agree to comply with them.

Fair Housing issues can be complex.  Based on the number and nature of requests for advice received by the Firm, even experienced property managers may not know how to properly handle particular Fair Housing situations.  A Fair Housing policy should have the following or similar language.  If at any time, you are uncertain, have questions, or need clarification regarding any Fair Housing issue or policy, immediately contact your supervisor for direction.  Advise the applicant or resident that Management Co. is a dedicated Fair Housing provider, but you need to consult your supervisor on this issue.  You will discuss the issue with your supervisor, and promptly get back with them.  If you are uncertain, never take any Fair Housing related action on your own, or commit either yourself or your company.

All well thought out Fair Housing policies should address continuing and ongoing training and education.  Ongoing training and education should be mandatory.  Fair Housing training for new hires should be mandatory.  Based on our experience with some clients, usually lack of training and education is not the problem.  The client’s onsite personnel have received plenty of Fair Housing training.  The problem is that onsite personnel lack the ability to apply the training to real world applicant and resident Fair Housing situations.  As discussed further below, this problem is particularly acute when it comes to handling complex requests for either reasonable modifications or accommodations.  Problems caused by the inability to apply training can only be evaluated by testing.  For this reason, policies should mandate some testing. Fair Housing testing should also be used to evaluate the effectiveness of your training.  If testing reveals the majority of your company can’t apply Fair Housing concepts, you need to get a new training program.

Fair Housing policies should address in detail how to handle reasonable modification and accommodation requests made by disabled residents.  Requests made by disabled applicants or residents are by far the biggest Fair Housing land mine today. Fair Housing complaints based on disability were greater than all other grounds.  In the last reporting period, HUD reported that forty percent (40%) of all Fair Housing complaints are based on disability discrimination.  The disability based complaints continue to roll in for two reasons.  First, policies do not adequately address disability issues.  Second, onsite personnel have not been properly trained to apply adequate policies, resulting in improper evaluations, or even worse, improper denials of reasonable modification and accommodation requests.

The most critical rule for any solid disability Fair Housing policy is simple. Never deny a request for a reasonable modification or accommodation until the request has been fully and properly evaluated.  If this is not part of your company’s Fair Housing policy statement, you are asking for trouble.  The Fair Housing landscape is full of disability based requests that could easily be wrongfully denied without this policy.  For example, a novice leasing agent may wrongfully deny a blind applicant’s request for a close up reserved parking space.  The resident may or may not be entitled to this request, See April 2007, Landlord News at htspc.com.  However, the request needs to be properly evaluated.  To further eliminate the possibility of a wrongful denial, your policy should limit the authority to deny reasonable modification or accommodation requests to only district or regional managers.  If the regional or district manger isn’t required to be in the loop, the greater the chances are that a reasonable modification or accommodation request will not be properly evaluated before being denied.

We regularly deal with inquiries from onsite management regarding reasonable modification or accommodation requests.  Based on our constant interaction with onsite team members, the industry as a whole needs to improve both its policies and training.  While day to day examples of these two points are numerous, two examples illustrate that both policies and training need to be improved.

Residents frequently make oral requests for reasonable accommodations.  But policies require requests for reasonable accommodations to be in writing.  Obviously, the policy should be that you prefer to have such requests in writing.  However, the law is clear.  Pursuant to the May 2004 HUD/DOJ guidelines, you cannot insist or force the resident to make such requests in writing.  Unfortunately, many policies we have reviewed require the resident to make reasonable accommodation requests in writing.  If your policy requires all reasonable modification and accommodation requests to be in writing, your onsite team members may eventually commit housing discrimination by wrongfully denying an oral request for an accommodation.

Many policies require verification from a medical health provider (the proverbial doctor’s note) as a condition to considering a request.  Based upon our experience, the vast majority of onsites labor under the false impression that the resident must produce a doctor’s note as a condition to being granted a reasonable modification or accommodation.  In some cases, you can require a verification of both the resident’s disability and need (a doctor’s note).  However, again the law is clear. Pursuant to the May 2004 HUD/DOJ guidelines, you cannot insist or force every resident who makes a reasonable modification or accommodation request to provide a doctor’s note.  If the resident’s disability and need are obvious, the resident does not need a doctor’s note.  If your policies always require a doctor’s note, your onsite team members may eventually commit housing discrimination by requiring a doctor’s note when it is not required.

The two previous examples highlight policy failures.  But they also can just as easily demonstrate training failures.  Frequently, after receiving one of these types of requests from a client property (oral request or no doctor’s note), we discuss the situations with regional or district mangers, or upper management.  Often we are surprised to learn that the company’s policy addresses both oral requests and the circumstances in which the properties can require a doctor’s note.  Thus, the problem isn’t that the company has inadequate policies, the problem is that the policies are not being effectively carried out due to either a lack of knowledge or training.

The best Fair Housing policies won’t avoid problems if your team hasn’t been adequately trained to carry them out. At a minimum, onsite managers need to be able to handle the front end process of reasonable modification and accommodation requests.  Your onsite team must be trained to properly take, gather, and compile reasonable modification and accommodation information and to make sure that no request is denied before thorough evaluation.  Reasonable modification and accommodation requests will only continue to increase.  Given the complexity of some requests, no onsite team member can reasonably be expected to know how to evaluate every request.  However, you should be confident that your onsite team can at least gather the necessary information to evaluate the request, let the resident know that the request is being considered, and not arbitrarily deny a request until it has been properly evaluated.  If your onsite team can’t accomplish these tasks, Fair Housing problems are likely.

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