How fair housing laws impact your business, and why you should care
Fair Housing implies that rental history, character and ability to pay are important when you rent your property. Race, color, national origin, religion, sex, familial status, handicap are to be of no con- sequence whatsoever. Other things may be of major consequence and overlap with the fact that someone can be identified by race, color, national origin, reli- gion, sex, familial status, or handicap, but those are not deciding factors.
The reason for the Fair Housing Act was that too many landlords gave the impression, and sometimes actually believed, that the color of an applicant’s skin, his religion or national origin was more important than if he would be a good ten- ant or not, that is whether he would pay the rent, take care of the property and be a good neighbor.
We will look at three important issues here:
1. some general Fair Housing concepts
2. what landlords may and may not do
3. how to write an ad that is consistent with the provisions of the Fair Housing Act
One sure-fire way to avoid even the appearance of impropriety and illegal dis- crimination is to treat every person who shows an interest in your rental property, and who rents from you, the way you would like to be treated; that’s the best we can do. We have no way of knowing how each individual would like to be treated, only how we would.
There is an important distinction between treating people the way they would like to be treated and treating them the way you would like to be treated that we should be aware of, though. Slight cultural differences result in feelings of dis- trust and/or skepticism when you say or do something in a way that causes offense in your applicant’s or tenant’s culture.
For example, using a nickname rather than the name they want to be called by may be considered bad form. So, if a prospective tenant says his name is “Jonathan,” call him Jonathan, not “Jon.” It is a major cultural faux pas in the African-American community as it happens (and is rude in any culture) to decide someone has a nickname that he or she doesn’t use and doesn’t want to be called. Rudeness and tactlessness could be interpreted as your having a bias against a particular race or culture. Things such as that are important to keep in mind, but we have no way of knowing what is considered “bad form” in each culture.
If you aren’t sure or simply don’t know how an applicant would like to be treated, your best bet is to treat him or her the way you would like to be treated. In the case of a name, simply ask how to address your applicant.
If you can’t do either of those, at least treat everyone the same way.
No matter how you treat your prospective and current tenants, always use rental standards and house rules for your rental properties that have nothing whatsoever to do with race or color, national origin, religion, sex, familial status, or handicap. Those are standards that re- late to how an individual will do as a ten- ant and how they are supposed to act in order to be good tenants and neighbors. Apply them equally to everyone.
But even “objective standards” might be considered discriminatory. They might have a “disparate impact” on one protected class of people. The Fair Housing enforcers created the concept of “disparate impact” because they discovered, sometimes logically, that some rental standards had a different impact on some classes of renters than they did on others. For example, if one of the house rules is that “no toys may be left in common hallways,” that would have a disparate impact on people with children. That rule implies that it is all right to leave motor- cycles in common hallways because those are not “toys.” The impact of a rule such as that would be to discourage families with children from living in that apartment complex.
Another method of avoiding even the hint of illegal discrimination is to think or every potential tenant as a potential customer and every tenant as a customer. Current tenants are paying thousands of dollars a year, paying the mortgage, property taxes and insurance for the landlord. And potential tenants are eager to do the same thing. Thinking of tenants that way could result in an entirely different slant on the landlord-tenant relationship.
Fair housing is the right thing to do. It doesn’t require treating any one class “specially,” except in a few isolated situations, just that you treat everyone equally and judge each person on the basis of his or her character.
Meet Barney the Bigot. He owns the apartment complex at 123 Elm St. and doesn’t like anybody who isn’t white. And even white folks are kind of suspect. He also doesn’t like “a bunch of kids screaming around the apartment complex.” Plus, he doesn’t much like Jews, Catholics or members of those “weird religions.” You’ve probably met Barney sometime or other, though he may have called himself something different.
Barney is too clever by half, and thinks he has figured out how to slide by all those requirements of the Fair Housing Law.
The Fair Housing Act has the bases covered, though. Many landlords, just as does Barney, believe that minority appli- cants and tenants are somehow automatically less qualified than non-minorities and think they can outsmart the Fair Housing Act. They can’t. The drafters of the law thought of just about every per- mutation and combination anyone would or could try.
We’ll look at these one by one to show just how brainless some biased landlords can be when they think they can make an end run around the Fair Housing Law.
Refuse to deal with someone
This is the most obvious one. A prospective tenant walks into an open house. “Oh no,” Barney says to himself, “this per- son is BLACK!” He immediately turns around and ignores his prospective customer. When the prospective tenant asks about a rental application, Barney says, “I don’t have any right now,” then says, “I’m too busy to talk to you, give me your number and I’ll call you.”
Then in walks a white couple. Barney, discerning with his steel-trap, super-computer brain that they are neither Jewish, Catholic nor Hindus, gushes all over them offering a rental application and singing the praises of the property.
If the white couple had met the same response as the black prospective tenant, it would just have meant that Barney is a jerk and an idiot. But when he treated a minority differently, meaning worse, than a non-minority applicant, the trouble will begin for Barney.
We’d almost hope that Barney would end up choosing a white couple over the black applicant and the white couple would deal drugs, trash the place and never pay the rent. Almost. We do have to consider Barney’s other tenants.
Meanwhile we would hope that Barney was ignoring the black applicant who would have been the picture in the dictionary next to the definition of “ideal tenant.”
Demand different conditions or higher standards
Barney has rental standards. The trouble is, they are different depending on whom he is talking to. “You have children, and they just tear up the place, so I won’t rent to you unless you pay me a higher deposit for the little brats.” “You are black so I won’t rent to you unless you pay higher rent than a white tenant.” “You have AIDS, so you may not come in physical contact with any other person in the complex.” “You have to have a higher income than a white tenant.” Barney thinks these requirements will make an end run around the Fair Housing Law. They won’t.
We need to treat everyone the same way. When we set rental policies and standards we must pretend we don’t know if the applicant is a member of a protected class. If the applicant meets the standards, we rent to him, her or them.
Say a property not available
That is where most landlords get themselves in trouble. The caller, not born in the United States, obvious from the accent, calls and Barney tells her, “The apartment’s rented.” My, isn’t he clever! Trouble is a half hour later another call comes in from a white person, who also happens to be a Fair Housing tester. This time Barney the Bigot tells the caller to come right over and see the “beautiful apartment.”
Do something which makes it more difficult to rent
Barney truly believes he is clever. Someone would call, obviously one of those people he doesn’t want to rent to, and say “I’d like to look at the apartment you have advertised.”
Barney replies, “Great. Come over at two o’clock.”
At two o’clock, Barney is nowhere to be found, disappeared. This prospective tenant is persistent, though, and just didn’t take the hint. She calls back and says “I really want to see the apartment. I did everything humanly possible to come over and look at it. (Which is true, she did.) Could I come back at four?”
Barney says “Sure, come on over.”
The prospective tenant comes back at four, as agreed, and Barney manages to elude her again.
But this woman is nothing if not persistent and she calls again. Barney agrees to another appointment at two the next day. This time he shows up, because he had rented the unit that morning.
My, isn’t Barney clever!
Advertise indicating protected classes not welcome
There is a litany of words and phrases that violate the letter or spirit of the Fair Housing law and tell members of protected classes they aren’t welcome. (See more about bad words below.)
Somehow a persistent minority tenant got in Barney’s property. She must have scared Barney the Bigot like you wouldn’t believe. She complained to the Fair Housing enforcers and they called Barney. So he rented to her. However, Barney was not going to forget this slap in the face and from day one he started looking for lease violations.
Barney had some kindred minds among the tenants living his apartment complex and he encouraged them to complain about this tenant. She walked “noisily” down the stairs a couple of times. The TV was “too loud” two nights in a row. Her rent was one day late, once, because she got stuck out of town and couldn’t get to the office on the first to pay the rent.
Of course Barney never required those same standards from his other tenants. Even so, Barney filed an eviction against Ms. Persistent. That is illegal discrimination. We have to treat everyone the same way, apply the same rules and requirements to all tenants, regardless of their protected-class status.
Guaranteed, she will complain again and Barney won’t get off so easy this time.
Attempt to do any of those things So even if Barney didn’t get away with keeping this persistent applicant from seeing the unit, even if she decided she really didn’t want the apartment after all, and especially when Barney lost the eviction in court because he treated his minority tenant differently, Barney could still be in a world of hurt. Simply because a landlord tried to make it hard or impossible for a tenant to rent from him, or tried to evict because of her race, amounts to the same thing as if he had succeeded. The landlord treated the applicant or tenant differently because she was a member of a protected class.
Treat all applicants and tenants the same way, completely ignoring whether they are minorities, handicapped or have children. It is the actions of tenants that mat- ter, not their status. Judge applicants and tenants on the basis of what they do, their rental history and income, not what they are, and accept or reject because for those reasons.
Under the Fair Housing Act advertising refers not just to published ads in news- papers, but also to any other statements that are written, verbal, or nonverbal. Discriminatory advertisements include but are not limited to applications, brochures, signs, banners, photographs, symbols, human models, and spoken words and phrases which might imply that housing is available or not available to a particular group of persons because of race, color, religion, sex, disability, age, familial status, national origin, or status with respect to marriage or public assistance.
When determining whether advertising constitutes a discriminatory housing practice, courts have generally applied a “reasonable person” standard. But it means we could be held liable if we advertise in a way that indicates a preference and that preference is readily ap- parent to an ordinary reader. Of course, no one can define exactly whom a “reasonable person” is.
An obvious example of the “reasonable person” standard is an ad that said “whites only,” or “no Polish.” Less obvious are things such as “near the Catholic Church.” While the Catholic Church may be a local landmark, and the neighborhood may be predominantly Buddhist, the implication to a “reasonable person” could be that Catholics are more welcome than are other religions.
Another example: “No more than two children” discriminates on its face against families with children. You can limit the number of occupants based on the size of the unit, but you may not specifically limit the number of children.
After that, it could be anyone’s guess. In fact, newspapers are so gun-shy that they refuse to accept ads that someone, somewhere might conceivably think of as indicating is some obtuse way that a landlord intends to discriminate. Those must be the “reasonable people.”
Even so, with all its quirks and inconsistencies, Fair Housing is not an inconvenience or an attack on landlords; it is the right thing to do. Good tenants come in all races, religions, creeds, colors, families, and disabilities. So do bad tenants. A businesslike landlord sets reasonable rental standards and rents to the first applicant who meets those standards.