ENSURING FAIR HOUSING
COMPLIANCE IN
OPERATION OF
MULTIFAMILY HOUSING
Paul Holtzman, Esquire
Krokidas & Bluestein LLP
600 Atlantic Avenue
Boston, MA 02210
(617) 482-7211
(617) 482-7212 (fax)
Copyright November, 2011
HALLKEEN MANAGEMENT
Manager Training
November, 2011
TOPICS
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Legal Obligations
Refusal to Rent
Discrimination in Terms, Conditions, or Privileges
Discriminatory Inquiries About Protected Class
Membership
• Handicap Accessibility and Nondiscrimination
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KROKIDAS & BLUESTEIN
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Defining Terms
Protected Classes
Disability or Handicap
Equal Access
Fair and Equal Treatment
Reasonable Accommodation
Undue Hardship
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KROKIDAS & BLUESTEIN
• Enforcing Policies and Rules of Conduct in
Nondiscriminatory Manner
• Responding to Reasonable Accommodation Requests
• Responding to Maintenance Requests
• Families with Children
• Advertisements and Notices
• Identifying Illegal Discrimination
• Non-Discrimination Policy and Complaint Procedure
• Personal, Individual Liability
• Other Kinds of Unlawful Discrimination
• Sexual Harassment
• Harassment on the basis of race, sexual orientation,
gender, nationality/origin, etc.
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KROKIDAS & BLUESTEIN
MASSACHUSETTS LAW
FAIR HOUSING
• CHAPTER 151B. PROHIBITS
DISCRIMINATION IN HOUSING AND
RELATED TRANSACTIONS ON THE
BASIS OF RACE, COLOR, RELIGION,
SEX, FAMILIAL STATUS, HANDICAP
AND NATIONAL ORIGIN
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CHAPTER 151B: SECTION 4
UNLAWFUL PRACTICES
Section 4. It shall be an unlawful practice:
6. For the owner, lessee, sublessee, licensed real estate
broker, assignee or managing agent of publicly assisted or
multiple dwelling or contiguously located housing
accommodations...or any agent or employee of such a
person [to]...
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REFUSAL TO RENT
To refuse to rent or lease or sell or negotiate for sale or
otherwise to deny to or withhold from any person or
group of persons such accommodations because of the
race, religious creed, color, national origin, sex, sexual
orientation, which shall not include persons whose sexual
orientation involves minor children as the sex object, age,
genetic information, ancestry, or marital status of such
person or persons or because such person is a veteran or
member of the armed forces, or because such person is
blind, or hearing impaired or has any other handicap.
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DISCRIMINATION IN TERMS,
CONDITIONS, OR PRIVILEGES
To discriminate against any person because of his race,
religious creed, color, national origin, sex, sexual
orientation, which shall not include persons whose sexual
orientation involves minor children as the sex object, age,
ancestry, or marital status or because such person is a
veteran or member of the armed forces,, or because such
person is blind, or hearing impaired or has any other
handicap in the terms, conditions or privileges of such
accommodations or the acquisitions thereof, or in the
furnishings of facilities and services in connection
therewith, or because such a person possesses a trained
dog guide as a consequence of blindness, or hearing
impairment.
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DISCRIMINATORY INQUIRIES ABOUT
PROTECTED CLASS MEMBERSHIP
To cause to be made any written or oral inquiry or record
concerning the race, religious creed, color, national origin,
sex, sexual orientation, which shall not include persons
whose sexual orientation involves minor children as the
sex object, age, genetic information, ancestry or marital
status of the person seeking to rent or lease or buy any
such accommodation, or concerning the fact that such
person is a veteran or a member of the armed forces or
because such person is blind or hearing impaired or has
any other handicap.
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REASONABLE ACCOMMODATIONS
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For purposes of subsections 6 and 7 discrimination on
the basis of handicap shall include but not be limited to:
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(1)
a refusal to permit or to make, at the expense
of the handicapped person, reasonable modification of
existing premises occupied or to be occupied by such
person if such modification is necessary to afford such
person full enjoyment of such premises; provided,
however, that, in the case of publicly assisted housing,
multiple dwelling housing consisting of ten or more units,
or contiguously located housing consisting of ten or more
units, reasonable modification shall be at the expense of
the owner or other person having the right of ownership;
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• provided, further, that, in the case of public ownership of
such housing units the cost of such reasonable
modification shall be subject to appropriation; and
provided, further, that, in the case of a rental, the landlord
may, where the modification to be paid for by the
handicapped person will materially alter the marketability
of the housing, condition permission for a modification on
the tenant agreeing to restore or pay for the cost of
restoring, the interior of the premises to the condition that
existed prior to such modification, reasonable wear and
tear excepted;
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•
(2)
a refusal to make reasonable accommodations
in rules, policies, practices, or services, when such
accommodations may be necessary to afford a handicapped
person equal opportunity to use and enjoy a dwelling; and
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(3)
discrimination against or a refusal to rent to a
person because of such person's need for reasonable
modification or accommodation.
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•
Reasonable modification shall include, but not be
limited to, making the housing accessible to mobilityimpaired, hearing-impaired and sight-impaired persons
including installing raised numbers which may be read by
a sight-impaired person, installing a door bell which
flashes a light for a hearing-impaired person, lowering a
cabinet, ramping a front entrance of five or fewer vertical
steps, widening a doorway, and installing a grab bar;
provided, however, that for purposes of this subsection, the
owner or other person having the right of ownership shall
not be required to pay for ramping a front entrance of more
than five steps or for installing a wheelchair lift.
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UNDUE HARDSHIP
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Notwithstanding any other provisions of this
subsection, an accommodation or modification which is
paid for by the owner or other person having the right of
ownership is not considered to be reasonable if it would
impose an undue hardship upon the owner or other person
having the right of ownership and shall therefore not be
required. Factors to be considered shall include, but not be
limited to, the nature and cost of the accommodation or
modification needed, the extent to which the
accommodation or modification would materially alter the
marketability of the housing, the overall size of the
housing business of the owner or other person having the
right of ownership, including but not limited to, the
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• number and type of housing units, size of budget and
available assets, and the ability of the owner or other
person having the right of ownership to recover the cost of
the accommodation or modification through a federal tax
deduction. Ten percent shall be the maximum number of
units for which an owner or other person having the right
of ownership shall be required to pay for a modification in
order to make units fully accessible to persons using a
wheelchair pursuant to the requirements of this subsection.
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DISCRIMINATORY
ADVERTISEMENTS OR STATEMENTS
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For any person to make print, or publish, or cause to
be made, printed, or published any notice, statement or
advertisement, with respect to the sale or rental of multiple
dwelling, contiguously located, publicly assisted or other
covered housing accommodations that indicates any
preference, limitation, or discrimination based on race,
color, religion, sex, sexual orientation which shall not
include persons whose sexual orientation involves minor
children as the sex object, national origin, genetic
information, ancestry, children, marital status, public
assistance recipiency, or handicap or an intention to make
any such preference, limitation or discrimination except
where otherwise legally permitted.
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For What Acts May A Discrimination
Complaint Be Filed:
 Refusing to rent, sell, or deal with a person, or otherwise
denying a unit or making it unavailable on notice;
 Falsely representing that a unit is not available;
 Discriminating in the terms, conditions or privileges of
sale, rental, occupancy, or in services or facilities in
connection with a dwelling;
 Advertising or otherwise stating a preference or limitation
related to a protected class
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 Attempting to intimidate, coerce or deter a person from
filing a complaint or lawsuit alleging discrimination, or
retaliating against a person for doing so;
 Threatening, intimidating, or interfering with a person’s
enjoyment of a dwelling because the resident is a member
of a protected class;
 Retaliating against a tenant or prospective tenant for
having asserted rights to be free from housing
discrimination; and
 Retaliating against a tenant or prospective tenant for
having assisted another person to assert right to be free
from housing discrimination.
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Practical Tips To Ensure Compliance
With The Law
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Treat everyone alike.
Provide consistent and complete information to everyone.
Make decisions based only on objective criteria.
Do not make credit assumptions based on non-credit
factors.
• Know the law.
• Be familiar with and act consistently with the HallKeen
Non-Discrimination Policy.
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The Fair Housing Act
• The Fair Housing Act prohibits discrimination in housing
because of:
• Race or color
• National origin
• Religion
• Sex
• Familial status (including children under the age of 18
living with parents or legal custodians; pregnant women
and people securing custody of children under 18)
• Handicap (Disability)
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What is Prohibited?
• In the Sale and Rental of Housing: No one may take any
of the following actions based on race, color, national
origin, religion, sex, familial status or handicap
(disability):
– Refuse to rent or sell housing
– Refuse to negotiate for housing
– Make housing unavailable
– Deny a dwelling
– Set different terms, conditions or privileges for sale or
rental of a dwelling
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– Provide different housing services or facilities
– Falsely deny that housing is available for inspection,
sale or rental
– For profit, persuade owners to sell or rent
(blockbusting) or
– Deny anyone access to or membership in a facility or
service (such as a multiple listing service) related to the
sale or rental of housing.
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• It is illegal for anyone to:
• Threaten, coerce, intimidate or interfere with anyone
exercising a fair housing right or assisting others who
exercise that right
• Advertise or make any statement that indicates a
limitation or preference based on race, color, national
origin, religion, sex, familial status or handicap
(disability). This prohibition against discriminatory
advertising applies to single-family and owneroccupied housing that is otherwise exempt from the
Fair Housing Act.
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Disability Discrimination
• The law protects an applicant or tenant or someone
associated with who:
– Has a physical or mental disability (including hearing,
mobility and visual impairments, cancer, chronic
mental illness, AIDS, AIDS Related Complex and
mental retardation) that substantially limits one or more
major life activities
– Has a record of such a disability or
– Is regarded as having such a disability
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However, housing need not be made available
to a person who is a direct threat to the health
or safety of others or who currently abuses
illegal drugs or alcohol.
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How Can Fair Housing Act Issues
Affect Me Personally?
• If you participated in an act of unlawful
discrimination, even at the direction of someone
else, you can face personal liability. This could
mean that you have to pay real money as damages
if a plaintiff is successful.
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What is the most common form of
discrimination based on race or color?
• Intentionally grouping individuals by race or
national origin in a particular buildings or part of a
building constitutes illegal segregation.
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What is “Steering?”
• “Steering” is when you try to discourage someone
from applying for tenancy at a development by
suggesting that they “might be happier” or “more
comfortable” somewhere else. Any statement or
conduct that conveys to an individual that his/her
application is less than welcome can be unlawful.
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What are other examples of discrimination
on the basis of race or color?
• Establishing separate screening criteria based on race (e.g.
criminal background checks)
• Taking action for lease violations against non-white
residents (e.g., non-payment of rent or interference with
right to quiet enjoyment), but being more lenient with
white residents who commit similar violations
• Prioritizing maintenance work orders based on the person,
rather than the job, and giving first preference to residents
of one race over another
• Providing a lesser standard of maintenance service for one
race
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ADVERTISING
How can an advertisement constitute discrimination?
How about an ad portraying only white residents?
• Any advertisement which gives the impression that the
housing is for members of a certain race can be regarded as
discriminatory. While you may not intend discrimination,
such an ad can be construed as discriminatory. Essentially,
all advertising campaigns using human models should
depict the majority and minority population in your
metropolitan area (this is not the neighborhood or area of
town, but the entire area) and children as well.
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• Human models should be depicted in similar size
and social standing (not residents who are white
and service personnel who are not). If you
envision an ad with a single resident portrayed,
rotate the various groups (racial, ethnic, etc.)
during the course of the advertisement publication.
And have your rotation plan in writing before you
start.
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What about the Equal Housing
Opportunity Logo?
• While the regulations do not require the use of the
logo, they strongly recommend it. Using it not
only in ads, but on business cards, letterhead,
bulletin board notices and brochures is wise.
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What about discrimination
on the basis of gender?
• First, the gender of children and their parents or
guardians is a non-issue for you. That means that
brothers and sisters of any age can share
bedrooms, as can fathers and daughters, mothers
and sons. So don’t suggest, for example, that a
single mom with a teenage son and teenage
daughter would be happier in a 3 bedroom than in
the 2 bedroom apartment she has asked about.
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What is the definition of
sexual harassment?
• The federal statute defines sexual harassment as
“repeated, pervasive, offensive conduct or
behavior of a sexual nature.”
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So how is sexual harassment prohibited
in the Fair Housing Act?
There are two types of sexual harassment prohibited
by the Act:
1. Quid Pro Quo. This is a Latin term which,
loosely translated means “this for that.” It is
the most overt form of sexual harassment.
2. Hostile Housing Environment. This is more
subtle and is similar to “hostile work
environment” in the employment setting.
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• Examples
• Management agent to a prospective
resident: “Honey, if you go out with me,
you’re going to get a nice discount on your
rent.”
• In this example, based on an actual case, the
individual alleged to have sexually harassed
is offering something (a break in the rent) in
exchange for sexual favors.
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• A resident goes to her apartment. She passes a
couple of maintenance employees for the property
who leer and whistle at her. She complains to
management, which takes no action except to
assure her not to worry.
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How was management wrong to
respond in that way?
• In the second example, the resident felt threatened
and unsafe. The maintenance employees may
have had pass keys (they did). She also felt
dehumanized and objectified. Management did
not seem to take the matter seriously, and she felt
further humiliated by their response.
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Does the Fair Housing Act prohibit
discrimination on the basis of religion?
• The same way it prohibits other types of
discrimination. You cannot have different
conditions in the sale, rental or conditions of
occupancy based on someone’s religious belief (or
non-belief).
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Can we allow residents to hold a religious
service in the community room?
• Yes, that is okay. But you must be aware that if
you allow the use of a community room for one
religion’s observance, you must also allow it for
others’.
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What is national origin discrimination?
• Treating an individual differently in the terms of
rental, conditions of occupancy or other areas of
policy, practice or procedure based on their
country of origin, presumably outside of the
United States.
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Does the Fair Housing Act provide a
definition of who is disabled?
• Yes. An individual is considered to be disabled if:
(1) They have a physical or mental impairment
that substantially limits one or more major life
activities; or (2) They have a record of such
impairment; or (3) They have a record of such
impairment. The definition is identical to the
definition in Section 504 and the Americans with
Disabilities Act.
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• So, under this definition, many people
can be protected as disabled even if they
would not be eligible for Social Security
Disability payments?
• That’s correct.
• Is there anyone who would not be
considered disabled under the Fair
Housing Act?
• Yes. Individuals who currently abuse alcohol or
narcotics are not considered to be disabled.
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What is the definition of
“reasonable accommodation?”
The definition of reasonable accommodation is the following:
An alteration to a policy, practice or procedure that is
both reasonable and necessary to enable a person with
a disability to benefit from and enjoy housing. The
regulations state the following:
It shall be unlawful for any person to refuse to make
reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to
afford a handicapped person equal opportunity to use and
enjoy a dwelling unit, including public and common use
areas.
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What is “reasonable?”
A request for an accommodation would be unreasonable if:
(1) it would create an undue financial and administrative
burden; or
(2) a fundamental alteration of the program or operation..
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What’s an Undue Financial Burden
It means that the cost of the requested accommodation would
not result in financial impairment to the property or a loss
of services to other residents; or that the staff time
involved in making the accommodation would not result in
a loss of services to other residents.
HUD advises that federally assisted properties must look at
their operating accounts and their replacement reserve
accounts, as well as residual receipts.
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What is a fundamental alteration of program?
A fundamental alteration of program occurs when the resident
requests a service that is not routinely available or
provided by the property.
For example, an individual who cannot cook for himself due
to a disability asks the property to provide him with meal
service. If the property has no meals program for
residents, the request would be a fundamental alteration of
program
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So if we determine a request isn’t reasonable, we
can deny it?
The answer is yes, and no.
Your view of what is not reasonable is subject to review by a
Court.
Plus, even if you are justified in denying a request, you would
still be required to work with the individual requesting the
accommodation to find an equally effective
accommodation. For example, helping the resident to
arrange for “Meals on Wheels.”
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HallKeen Process for Reasonable
Accommodation Requests
A formal request for accommodation requires that
(1) The resident sign a verification authorization to be sent to
a physician or other qualified individual in order to verify
(a) The individual meets the definition of disabled in the
Fair Housing Act;
(b) There is a need for the requested accommodation
because of the disability.
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What is a reasonable modification?
Unlike a reasonable accommodation which usually means a
change in policies, practices and procedures, a reasonable
modification covers changes in physical structure.
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HUD regulations state:
It shall be unlawful for any person to refuse to permit, at the
expense of a handicapped person, reasonable modifications
of existing premises, occupied or to be occupied by a
handicapped person, if the proposed modifications may be
necessary to afford the handicapped person full enjoyment
of the premises of a dwelling.
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In the case of a rental, the landlord may, where it is
reasonable to do so, condition a modification to the
condition that existed before the modification, reasonable
wear and tear excepted. The landlord may not increase for
handicapped persons any customarily required security
deposit. However, where it is necessary in order to ensure
with reasonable certainty that funds will be available to
pay for the restorations at the end of the tenancy, the
landlord may negotiate as part of such a restoration
agreement a provision requiring that the tenant pay into an
interest bearing escrow account, over a reasonable period,
a reasonable amount of money not to exceed the cost of the
restorations. The interest in any such account shall accrue
to the benefit of the tenant.
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A landlord may condition permission for a modification on
the renter providing a reasonable description of the
proposed modifications as well as reasonable assurances
that the work will be done in a workmanlike manner and
that any required building permits will be obtained.
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EXAMPLES FROM REGULATIONS
A tenant with a handicap asks his or her landlord for
permission to install grab bars in the bathroom at his or her
own expense. It is necessary to reinforce the walls with
blocking between studs in order to affix the grab bars. It is
unlawful for the landlord to refuse to permit the tenant, at
the tenant’s own expense, from making the modifications
necessary to add the grab bars.
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However, the landlord may condition permission for the
modification on the tenant agreeing to restore the bathroom
to the condition that existed before the modification,
reasonable wear and tear excepted. It would be reasonable
for the landlord to require the tenant to remove the grab
bars at the end of the tenancy. The landlord may also
reasonably require that the wall to which the grab bars are
to be attached be repaired and restored to its original
condition, reasonable wear and tear excepted. However, it
would be unreasonable for the landlord to require the
tenant to remove the blocking, since the reinforced walls
will not interfere in any way with the landlord’s or the next
tenant’s use and enjoyment of the premises and may be
needed by some future tenant.
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Example (2): An applicant for rental housing has a child who
uses a wheelchair. The bathroom door in the dwelling unit
is too narrow to permit the wheelchair to pass. The
applicant asks the landlord for permission to widen the
doorway at the applicant’s own expense. It is unlawful for
the landlord to refuse to permit the applicant to make the
modification. Further, the landlord may not, in usual
circumstances, condition permission for the modification
on the applicant paying for the doorway to be narrowed at
the end of the lease because a wider doorway will not
interfere with the landlord’s or the next tenant’s use and
enjoyment of the premises.
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What are some limitations to the requirement to make
reasonable modifications?
You do not have to install an elevator in a building that
doesn’t have an elevator.
Likewise, you do not have to make or allow any
modifications that would involve removing or altering a
load bearing structural support.
You do not have to make or allow any modifications that
would involve a replacement cost of 50% or more of the
element of the building being modified.
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What is familial status discrimination?
Familial status discrimination protects families with children
in matters pertaining to housing. A child is defined as
someone younger than age 18 – whether or not a blood
relative of the primary tenants.
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Examples of familial status discrimination
Requiring a family with children to occupy an
apartment on a lower floor. This would be
considered a policy that restricts housing choice.
Requiring a single mother with a child to occupy (or
be eligible for) a two bedroom unit. A parent or
grandparent can share a bedroom with a child at
their option, no matter whether the child is a boy or
a girl.
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Having rules that target children, such as a policy that
states children shall not play in the hallways. In
fact, any policy that mentions the words “child” or
“children” needs to be reviewed for compliance with
the Fair Housing Act.
There was a case challenging such a policy where the
property was found liable for familial status
discrimination. The judge noted that children playing
checkers in the hallway would not disturb anyone, and
that if the company’s intent was to have zero tolerance
for noise or disruptions in the hallways, that policy
should be addressed to all residents and not just to
those with children.
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There are, of course, valid ways to have rules related to
children for swimming pools, exercise facilities and other
equipment.
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RECAP
- Takeaway Points
- Practical Tips
QUESTIONS FROM PARTICIPANTS
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