TWO NEW CATEGORIES ADDED TO PROTECTED CLASS DESIGNATION

The City of Boulder and properties in Denver County (Denver) in Colorado have now expanded what is considered a “protected class” for the purposes of discrimination in housing, employment, and public accommodations.

In Denver, starting January 1, 2019, it will be unlawful for housing providers to discriminate against applicants or residents based on their source of income (SOI). In the city of Boulder, the ordinance has already gone into effect as of August 23, 2018. It prohibits housing providers from discriminating against applicants and residents based on their source of income as well as their immigration status (IS).

This expansion will have major fair housing implications on housing providers and can affect you whether you have properties in those cities or not. So far only Boulder and Denver have enacted ordinances, but 14 states and 65 cities across the US have similar laws, which means there is a good chance Colorado, or even the federal government as a whole, may enact the same anti-discrimination laws based on SOI and/or IS.

This article goes over the basics of the new law, ways to stay in compliance, and what the penalties are for violators. Even if you don’t have properties in Denver County or the City of Boulder, it’s important for you to understand the implications of SOI and IS because even if your local laws don’t ban SOI or IS discrimination, if you deny applicants based on their SOI or IS, you could be inadvertently discriminating against one of the protected classes defined by your local, state, and/or federal laws. For example, refusing to accept applicants who receive disability benefits could trigger a fair housing violation based on disability. Likewise, falsely representing to an undocumented applicant that a property is not available based on the applicant’s IS could be construed as discriminating against the applicant’s nationality.

Source of income means: where applicants and residents get their money or financial support. The income has to be verifiable, which means legally obtained. Examples of verifiable income are wages, inheritances, grants, retirement benefits, spousal support, child support, unemployment benefits, veterans’ benefits, disability benefits, and government or private assistance. This includes housing assistance paid to or on behalf of renters such as section 8 housing choice vouchers.

Immigration status is an individuals’ classification status related to citizenship, alienage, and residency. This includes, but is not limited to: undocumented individuals, lawful permanent residents, asylees, refugees, non-immigrants, native-born citizens, naturalized citizens, or individuals with temporary protected status (such as victims or witnesses to serious crimes).

There are exemptions in Denver if the landlord owns and makes available for rent only a single unit of housing; if the landlord owns and rents a duplex and occupies one of the units; if the housing is restricted to the elderly or disabled; religious organizations and associations; or where it’s prohibited by law, zoning codes, or pre-existing program requirements.

In Boulder, the exemptions are not as clear as they are in Denver. Currently, the ordinance does not prohibit an owner from limiting occupancy of a single dwelling unit occupied by the owner as his or her residence; an owner limiting occupancy of rooms or dwelling units in buildings occupied by no more than two families living independently if the owner occupies one such room or dwelling as his or her residence; or an owner of a housing facility devoted entirely to housing individuals of one sex. As with Denver, it does not apply to religious/ denominational organizations, housing intended for the disabled, or to comply with zoning and occupancy codes.

Discriminatory practices based on SOI and IS may not be as obvious as it seems. It would be patently discriminatory for a landlord to refuse to rent to an applicant simply because they are on unemployment, receive social security benefits, or live entirely off the child support they receive. But it can also be found if the landlord discriminates in the terms, conditions, or privileges of tenancy/occupancy, how landlords market their properties, and what criteria landlords require for application and tenancy. In order to be on the right side of the law, there are three important things rules to remember.

First, you should be careful how you advertise or promote your properties. Gone are the days of a blanket disclaimer “Section 8 Not Accepted.” If you have properties located in Boulder or Denver, you can no longer refuse to accept housing assistance. Therefore, if you receive online or phone inquiries as to whether your community accepts Section 8 vouchers, your answer should be yes. If you disseminate advertising that indicates a preference or limitation based on an applicant’s source of income, you could not only catch the attention of fair housing enforcement organizations (AKA testers), you could subject your community to a fair housing complaint filed against you by every prospective tenant on housing assistance who was deterred from applying due to your discriminatory advertising.

Second, you should apply the same screening policies for applicants regardless of SOI or IS. Your company’s standard procedure should be utilized to ensure that all applicants and prospects are treated the same across the board. Be consistent in applying your screening criteria including credit history, rental history, and criminal background. It is no longer permissible to ask that applicants provide proof of lawful status in the country. You can, however, ask for identifying information so that you can obtain criminal, rental, and credit reports as long as you ask the same of all applicants. You should not impose any additional steps on someone simply because they do not have a social security card. However, if they cannot provide information to meet rental criteria, that would be a nondiscriminatory reason for denying application.

Moreover, SOI laws ban discrimination against applicants because of where they get their income, not the amount of their income. You may still ask an applicant about their income but not for the purpose of imposing different screening policies and procedures based on that information. Communities may require that all applicants demonstrate an ability to pay their rent, such as satisfying minimum income requirements. If you require that an applicants’ income be two or three times the monthly rent, then the source of that income cannot be grounds for a denial. For example, if you’re screening an applicant with a housing choice voucher, either consider the amount of the voucher as income towards the entire amount of rent or you can use your standard formula to determine eligibility based on the tenant’s portion of the rent, the amount not covered by the voucher.

Third, follow standard procedures and policies of tenancy regardless of SOI or IS. When someone has been approved for tenancy and moves into your community, all residents should be treated equally in the terms, conditions, and privileges of tenancy regardless of their SOI or IS. Residents should move into the available unit that was advertised or toured when applying for tenancy. Placing all residents in a particular section of the community who have similar SOI or IS classifications would be unlawful steering. It would also be a discriminatory practice to refuse to service a residents’ unit or put them at the bottom of the list due to their SOI or IS.

If you find yourself on the receiving end of a discrimination complaint based on SOI or IS, it is a good thing you’re not located in Washington, D.C. In November 2017, a landlord D.C. landlord was ordered to pay $125,000 in attorneys’ fees, costs, and damages to settle a fair housing case alleging that the landlord refused to accept Section 8 vouchers as lawful income. He was also ordered to affirmatively market units to voucher holders by providing timely vacancy information to a list of service providers who assist voucher holders in locating and securing housing as well as hold open for 30 days any units for which a voucher holder was the first applicant to allow sufficient time for processing through the local housing authority.

In Denver, enforcement of the new law falls on the tenants to bring the complaints. Complaints can be made to the city’s agency for human rights and community relations and must be filed within 180 days of the discriminatory practice. Landlords will have 30 days to respond and can request an informal administrative hearing before the agency. The agency will have up to 60 days to investigate and conduct the informal hearing if one was requested. If discrimination is found, the landlord will have 30 days to remediate with orders which may include making the unit or a comparable one available and/or cease the discriminatory practice. If the landlord fails to comply with the agency directive, he or she can be assessed a fine of no more than $5,000 which may be paid to the complainant (tenant).

In Boulder, tenants have one year to file complaints to the city manager. The city manager may attempt to negotiate a settlement prior to an investigation. If after an investigation, the city manager finds there is probable cause to believe discrimination has occurred, the city manager can order a conciliation agreement and order that the violation be eliminated and the complainant (tenant) be made whole to the greatest extent practicable including making the unit or a comparable unit available or actual damages. There can also be judicial enforcement of the new ordinance, not just an administrative process. The city manager may file a criminal complaint in the municipal court seeking imposition of criminal penalties which include a fine of not more than $1,000, incarceration for not more than 90 days, or both.

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