by Jessica S. Weisman, Managing Partner of Client Education | Revised from a previous KTS article prepared by D. J. Ryan, former Director of Education (Retired)
One of the most common questions asked by managers, leasing professionals, and owners during our fair housing trainings is, “What can I, or can’t I say, so I won’t get in trouble with fair housing?”
It should come as no surprise that what you say, type, text or post on social media could increase your potential for a fair housing complaint or lawsuit. By way of example:
- In October 2017, the U.S. Department of Housing and Urban Development (HUD) announced charges against a Pennsylvania landlord. As part of the underlying complaint, the landlord is alleged to have advertised a 2-bedroom unit as “not suitable for children/pets.”
- In July 2017, the California Department of Fair Employment and Housing (DFEH) announced a settlement with an Airbnb host who was alleged to have cancelled an incoming guest’s reservation, and messaged the renter, “I wouldn’t rent to you if you were the last person on earth.” “One word says it all. Asian.”
The answer is simple, “Don’t say or ask anything that could be construed as discriminatory.” However, the implementation of this advice can be more complicated than it seems. Practically applying this principle in one’s day-to-day interactions requires housing providers to be familiar with fair housing laws, and to think before they speak.
The list that follows contains some practical examples of questions, comments, and statements that, even when asked innocently, could increase your potential for a fair housing complaint or lawsuit.
Referring to a person’s protected class
Gosh, that’s an interesting last name/accent. Where are you from? (National Origin/Ancestry)
So is he your husband? (Marital status)
Do you have children? (Familial status)
You look so frail. What if you hurt yourself? (Age/Disability)
Are you sure you can live alone? (Age/Disability)
Where do you work? (Source of Income/Disability)
Comments that could discourage the person from living there
We have a very quiet property, mostly older people, but we will consider children.
This property isn’t very safe for children because of the (fill in the blanks) balconies, creek, fountain, busy street, cliff, stairs . . .
You know, we don’t have a playground or any place for children to play here.
This is an older property – we don’t have any units that are wheelchair accessible.
Comments that indicate the presence of “steering” practices
We prefer to have our families with children live in ground floor units (or near the playground).
You would probably be more comfortable in a downstairs unit since we don’t have an elevator.
Comments that indicate the presence of other discriminatory practices
We’ll have to charge you a higher security deposit because of your assistive animal (or because your wheelchair might damage the door frames).
We can’t accept your assistive animal because we have a “no pet” policy here.
Other comments to avoid
Housing providers are commonly asked discriminatory questions by applicants. There can be a fine line between what information is acceptable to provide and what might be discriminatory. When asked by a prospective resident, “What kind of people live here?” or “Are there many children living here?” or a similar inquiry about the make-up of the residents, respond with, “We are an equal opportunity housing provider and anyone who meets our qualifications is welcome to live here.” If pushed further, say, “I’m sorry, but responding to that kind of question is a violation of fair housing law.”
Other common, loaded questions from prospects are “Who lives next door?” to the vacant unit, or a request to live in a unit that is “not next to” someone from a protected class. With the first question, rather than responding, “Oh, a family with a new baby,” or with a similarly direct answer, you should simply point out that all the apartments are occupied by fully qualified residents. Some managers add the reminder, “Besides, whoever is living there today may move tomorrow.” If pressed, remind the applicant that because of fair housing laws, you are not able to respond to their request.
Why can’t I say that?
If you don’t understand why some of these comments are discriminatory, or the fair housing laws that underlie them, it’s time to give your fair housing IQ an educational boost — or you may find yourself on the receiving end of a complaint.
Kimball, Tirey and St. John LLP is a full service real estate law firm representing residential and commercial property owners and managers. This article is for general information purposes only. Laws may have changed since this article was published. Before acting, be sure to receive independent legal advice. For information about our services, please visit our website: www.kts-law.com.