Presented by: Heidi O’Day Washington State Human Rights Commission FAIR HOUSING BASICS Presented by: Heidi O’Day Washington State Human Rights Commission

Federal protected bases Illegal Discrimination Fair Housing Basics What is Fair Housing? Federal protected bases State Laws RCW 49.60 Protected Bases Covered issues Illegal Discrimination Who must comply?

What is Fair Housing? Fair housing is the right of all people to be free from discrimination in the rental, sale, or financing of housing. Fair Housing means Equal Access

Types of Fair Housing Agencies Governmental Agencies Federal State / County / Municipal Private, Non-profit Organizations

The Federal Fair Housing Act Prohibits discrimination in public and private housing on the bases of: Race Color National Origin Religion Sex (Gender) Disability Familial Status (Presence of children under 18, pregnant female, securing custody, and designee of custodian)

The Federal Fair Housing Act The FHA applies to all states; Nearly every housing provider must comply with the FHA (exemptions are nearly always covered by the area’s state law or local law); Understanding the FHA and its seven protected classes is foundational; Learning about any additional protected classes in your state or locality, and understanding the universal application of non-discrimination practices, will aid all housing providers in complying with relevant laws

Coverage by State Laws Idaho Washington

Idaho Idaho Human Rights Act prohibits discrimination in real estate transactions which is based on the following protected classes: Race Color Sex Religion National origin Disability These protected classes are all included in the Fair Housing Act. *Taken from Idaho Commission on Human Rights website: http://humanrights.idaho.gov/discrimination/housing.html

Idaho Idaho Law covers all real estate transactions, including advertising, showing, renting, leasing, buying, selling, and financing Exemption for owner-occupied duplexes For more information, contact the Idaho Commission on Human Rights at (888) 249-7025 *Taken from Idaho Commission on Human Rights website: http://humanrights.idaho.gov/discrimination/housing.html

Washington In addition to the protected classes covered under the Fair Housing Act, the following bases are covered by Washington State: Creed Marital Status Sexual Orientation / Gender Identity Military Status or Honorably Discharged Veteran Disability – includes most disabilities, even those not covered by the Federal Fair Housing Act (temporary or mitigated)

Creed A personally held belief Does not include politics Much broader than federal definition of established religions Includes varying denominations or deviations from specific religious teachings

Marital Status The legal status of being: Married Single Divorced Widowed

Sexual Orientation/Gender Identity Heterosexuality Homosexuality Bisexuality Gender Expression Gender Identity

Sexual Orientation/Gender Identity (continued) Things to Consider: Driver’s license may reflect different name/ gender than person is currently presenting Rental/credit history may be listed under different name The person may not consistently present as the same gender, especially if their circumstances sometimes dictate that they present as their original gender Addressing an applicant / tenant

Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity-Effective March 5, 2012 Defines sexual orientation and gender identity Adds general equal access provision Clarifies HUD “family” definition Prohibits inquiries in certain contexts Adds sexual orientation and gender identity to existing FHA equal access provision LGBT” refers to people who are Lesbian, Gay, Bisexual, or Transgender. Sexual orientation, gender identity, and transgender are distinct terms. The LBGT rule defines Sexual orientation as homosexuality, heterosexuality, or bisexuality. The LGBT rule defines Gender identity as actual or perceived gender-related characteristics. Equal Access: The provision states that a determination of eligibility for housing that is assisted by HUD or subject to a mortgage insured by Federal Housing Administration (FHA) shall be made in accordance with the eligibility requirements for such program by HUD, and such housing shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status. Family Definition: The second main substantive provision of the rule is a clarification of the definition of “family” and “household” in HUD regulations. Section 8, public housing, FHA, Community Development Block Grants, HOPWA, 202/811 are all covered by this definition Inquiries: The third component of the rule is related to inquiries. The LGBT rule prohibits inquiries regarding the sexual orientation or gender identity of an applicant or occupant for the purpose of determining eligibility or otherwise making housing available. This prohibition has broad coverage – it applies to owners or administrators of HUD-assisted or HUD-insured housing, approved lenders in an FHA mortgage insurance program, and any or any other recipient or sub-recipient of HUD funds. Finally, the rule prohibits FHA-approved lenders from basing eligibility for an FHA-insured loan on unrelated factors such as actual or perceived sexual orientation or gender identity. The prior regulation lists race, color, religion, sex, national origin, familial status, handicap, marital status, source of income. The LGBT rule adds sexual orientation and gender identity as prohibited grounds.

Military Status Honorably discharged veterans Current active duty Current reserved duty Any branch of the US military

Disability (under Washington State Law) Temporary or permanent Common or uncommon Mitigated or unmitigated Examples: Diabetes Broken Leg Pneumonia

What issues are covered under the Fair Housing laws? Virtually ALL housing related transactions are covered, including: Renting or buying a house, an apartment, condo, or mobile home The terms or conditions of a rental, such as rules and policies Reasonable accommodations or modifications for a person with a disability Mortgage lending, appraisals, and insurance Advertising Etc.

Illegal Discrimination Prohibitions under Federal Law: Refusal to sell or rent a dwelling (Section 804(a)) Discriminatory terms, conditions, or privileges of sale or rental of a dwelling (Section 804(b)) Discriminatory advertisement with respect to the sale or rental of a dwelling (Section 804(c))

Illegal Discrimination Misrepresentation of the availability of a dwelling for inspection, sale, or rental (Section 804(d)) Blockbusting (Section 804(e)) Discrimination in lending and residential real estate-related transactions (Section 805) Prohibition against threats and discrimination (Section 818)

What makes discrimination illegal? Discrimination means being treated differently than others Not all discrimination is illegal Illegal Discrimination = Covered Issue + Covered Basis Refusing to make repairs for someone (Issue) because he is Muslim (Basis)

What makes discrimination illegal? Discrimination can also mean a failure to reasonably accommodate a person’s disability A person who is disabled may need the landlord to waive or change their rules to afford the disabled person equal access to the dwelling or public & common use areas

What makes discrimination illegal? Discrimination can also mean a landlord’s neutral policy, when put into practice, has a greater negative effect on one group of people of a certain protected class more than another group of people For example, an overly restrictive occupancy policy has the effect of discouraging families with children more than any other type of household

Illegal Discrimination Can Be… Charging a higher rent amount for tenants with children Making a tenant follow stricter rules because he is from Somalia Requiring a qualified applicant to meet higher standards because he is Native American Telling applicants that an available apartment has been rented once it is known they are Russian Evicting a group of tenants because they are all non-Caucasian

Illegal Discrimination Can Be… Refusing to transact business with a male-to-female transgender tenant because she is not dressed as her birth gender Evicting a disabled tenant because she requires a reasonable accommodation for her disability Retaliating against a tenant who has filed a Fair Housing complaint by taking any unwarranted, negative action against them Failing to take action if a tenant complains that another tenant is sexually harassing them

Illegal Discrimination Can Be… Steering a home buyer to a particular neighborhood based on racial characteristics of the neighborhood Basing terms of a mortgage loan on someone’s protected class (pregnancy/maternity leave) and charging a higher interest rate Requiring a person with a disability to prove that their disability and/or disability-related income will last at least three years Refusing to offer homeowner’s insurance in a particular area based on racial characteristics of the neighborhood

Who must comply with Fair Housing laws? Can include, but is not limited to: Any person and/or entity involved in the rental or sale of a dwelling or the advertisement of a dwelling Any person and/or entity involved in the design and construction of new dwellings Any person and/or entity involved in other real estate related transactions such as mortgage lending, property/hazard insurance, zoning, municipal services

This Means… Property Owners Property Managers Property Maintenance Staff Real Estate Brokers or Agents Homeowners/Condominium Associations Housing Authority Staff Housing Developers and Contractors Mortgage Lenders and Financial Institutions Advertising Media Etc.

Are there other applicable Fair Housing laws? Some cities and counties in Washington have their own anti-discrimination laws Seattle Office for Civil Rights King County Office of Civil Rights Tacoma Human Rights & Human Services Department City of Bellevue City of Spokane

Which Law Applies? Between the FHA and RCW 49.60, nearly every housing transaction is covered When in doubt, following the most stringent law is a way to ensure compliance Still have questions? Call us!

Questions?

Specific Fair Housing Issues Disability Family Status Domestic Violence Advertising Tenant on Tenant Harassment Criminal History

The Fair Housing Act and Disability Who is disabled? Reasonable Modification Reasonable Accommodation What can a landlord ask? http://portal.hud.gov/portal/page/portal/HUD/topics/information_for_disabled_persons

Who is Disabled? Definition of disability under Federal Law: “A physical or mental impairment which substantially limits one or more major life activities”; or A record of such an impairment; or Being regarded as having such an impairment

Who is Disabled? Physical or Mental impairments include, but are not limited to: Visual, speech, mobility or hearing impairments AIDS Mental/Emotional illness Drug addiction (other than addiction caused by current, illegal use of controlled substances) Alcoholism

Who is Disabled under RCW 49.60? Remember, under RCW 49.60, the definition of disability is much more broad than under the Fair Housing Act, and includes uncommon, temporary, and mitigated disabilities. Medical professionals are responsible for a diagnosis, not housing providers or investigators.

COMMON DISABILITY ISSUES Reasonable Accommodation Reasonable Modification

Why Reasonable Accommodations and Modifications? Balancing the Scales People with disabilities may require special needs to ensure that they have equal access and equal opportunity to use and enjoy a dwelling and common/public use areas

Reasonable Modification A reasonable modification is a structural change that allows a person with a disability equal access and equal opportunity to use and enjoy a dwelling and common/public use areas. Reasonable modifications are usually made at the resident's expense.* *Exception: In Federally Funded housing facilities, the landlord would be responsible for the cost and the installation of the modifications, unless the modifications are unreasonable (Section 504) If it’s a rental, landlord may condition permission of an RM on: -renter’s agreement to restore the INTERIOR of the premises to the condition that existed before if the modification interferes with the next tenant’s use and enjoyment of the unit (this does not apply to ownership properties like CONDOS and does not apply to the EXTERIOR, even in rentals)-can negotiate with tenant to pay into an interest bearing escrow account to insure funds will be available for restoration -reasonable description of proposed modifiication -reasonable assurance that work will be done in workmanlike manner and that nay required building permits will be obtained http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf

Reasonable Modification Examples Ramps Grab Bars Roll In Shower

Reasonable Accommodation A reasonable accommodation is a change in rules, policies, practices, or services that allows a person with a disability equal access and equal opportunity to use and enjoy a dwelling and common/public use areas. http://www.hud.gov/offices/fheo/library/huddojstatement.pdf

Reasonable Accommodation Examples Reserved Parking Caregivers Assistance Animals

Assistance Animals An animal needed because of a person’s disability that allows that person to have equal access and equal opportunity to use and enjoy a dwelling and common/public use areas

Assistance Animals The animal does not have to be limited to a dog The animal does not have to be trained or certified under FHA* Landlord cannot impose pet rules on assistance animals No pet deposits No weight, size or breed restrictions *WSHRC not currently investigating

Assistance Animals A landlord may impose rules on assistance animals related to the health and safety of other tenants, such as: Animal should not jump or bite at people Animal’s waste must be picked up and removed Tenant is responsible for any damage caused by animal

Assistance Animals Assistance Animals are another form of Reasonable Accommodation under FHA Property Insurance and Breed Restrictions are a problem that a rental manager or property owner may need to deal with Rental history and/or animal control agency history can be screened Follow local ordinances regarding animals

Reasonable Accommodations: A Landlord Can Ask… A landlord CAN ask for verification that the person is disabled and needs the accommodation or modification because of the disability This can be verified from a: Doctor Medical professional Peer support group Non-medical service agency A reliable third party who is in a position to know about the individual's disability

A Landlord CANNOT ask… What is the nature and severity of your disability? Why do you need this accommodation or modification? Do you take medication? How severe is your disability? Why are you getting SSI? Can I see your medical records? Have you ever been hospitalized?

When Must a Reasonable Accommodation Request Be Granted? The person is disabled; There is a nexus between the disability and the accommodation; and It is reasonable.

Reasonable vs. Unreasonable? Undue financial or administrative burden Fundamental Alteration to the Business

Undue Financial/Administrative Burden Evaluate the financial impact the modification would have on your budget Example: Can you afford to install a $70,000 elevator?

Fundamental Alteration Evaluate whether you are being asked to provide a service not normally provided in your business Examples: Distributing Medications? Providing Care Giver Services?

What to do next? Reasonable Not Reasonable Provide Accommodation or Modification Not Reasonable Implement other alternatives to accommodate the disabled person

Facility Access Requirements FHA accessible design standards for multi-family housing of 4+ units, built and ready for first occupancy on/after March 13, 1991 Washington state building code includes FHA & ADA access standards See http://www.fairhousingfirst.org The Fair Housing Act established seven design standards for all newly constructed, multi-family housing of four or more units, ready for first occupancy on or after March 13, 1991. Rental properties built before March 1991 are not subject to the FHA design standards, but if any new construction is done or if you do substantial remodeling, it must be up to the current code. The FHA and ADA access guidelines are incorporated into the Washington state building code, so if your construction or remodel meets the state code, it will also meet FHA and ADA. HUD’s Fair Housing Act Design Manual is online and on the FH CD. You can find more info at the Fair Housing First website.

What is familial status? Do’s and Don’ts Occupancy HOPA

Defining Familial Status The presence of one or more children under the age of 18 in the household Parent, step-parent, adoptive parent, guardian, foster parent or custodian of a minor child Pregnant woman or someone in the process of acquiring legal custody of a child

Do’s and Don’ts: Do not refuse to rent to qualified families with children unless you are a Housing for Older Persons property Do not refuse to rent to qualified families with children because of safety hazards -provide a safe environment for all tenants Do not limit families with children to certain floors of buildings or to certain areas within housing complexes – integrate families with children throughout the complex

Do’s and Don’ts: Do not establish rules that target children - set rules that cover everyone Follow existing health and safety laws when setting age limits for pool use Follow existing industry standards when setting age limits for use of spa equipment

Occupancy Under some circumstances, a housing provider’s occupancy policy may have an unfair and larger negative impact on families with children and may, therefore, constitute a violation of the Fair Housing Act

Occupancy – The Keating Memo Keating Memo discusses reasonable occupancy policies Two persons per bedroom, as a general rule, is reasonable HOWEVER, reasonableness is not solely determined by the number of people permitted in each bedroom http://www.hud.gov/offices/fheo/library/occupancystds.pdf

The Keating Memo - Continued Reasonableness of an occupancy policy is also determined by: Size of bedrooms and unit Age of children Configuration of unit Other physical limitations of housing State and local law

Housing for Older Persons Act (HOPA) The Fair Housing Act prohibits discrimination in housing based on family status (presence of children) There are three exceptions to this rule found in the Housing for Older Persons Act: State or Federal housing programs designated by HUD Secretary to be specifically for the elderly 62+ Housing 55+ Housing http://www.hud.gov/offices/fheo/seniors/index.cfm

HOPA - Continued 62+ Housing Housing facility or community intended for and solely occupied by persons 62 years and older

HOPA-Continued 55+ Housing-criteria to qualify: Housing facility or community where at least 80% of its occupied units is occupied by at least one person aged 55 or older Intent to operate as housing designed for persons 55 and older Process to verify age of occupants

Domestic Violence and Fair Housing http://www.hud.gov/offices/fheo/library/11-domestic-violence-memo-with-attachment.pdf

Domestic Violence and the Fair Housing Act Some times, adverse housing actions against victims of domestic violence punish the victims for the violence inflicted upon them, causing "double victimization”, which may amount to illegal housing discrimination under the Fair Housing Act.

Illegal Discrimination under the Fair Housing Act in Domestic Violence Situations DISCRIMINATORY POLICIES Policies that explicitly treat women differently from men Example: A landlord tells a female DV victim that he does not accept women with a history of domestic violence because they always go back to the men who abuse them

Illegal Discrimination under the Fair Housing Act in Domestic Violence Situations UNEQUAL TREATMENT Treating DV victims differently than victims of other crimes Applying a policy to evict households for criminal activity selectively against women who have been abused by their partners Applying the policy “Not to Evict DV victims” differently between female victims and male victims Point on that LGBT partners can be victims as well

Housing Provider Zero-Tolerance Crime Policies Under these policies, domestic violence victims have been evicted because of: violence caused by a household member, guest, or other person under the victim's "control" repeated calls to the police for disturbing other tenants caused by domestic violence property damage caused by their abusers

The Statistical Impact Statistics show that women are overwhelmingly the victims of domestic violence: An estimated 1.3 million women are the victims of assault by an intimate partner each year About 1 in 4 women will experience intimate partner violence in their lifetimes 85% of victims of domestic violence are women

Domestic Violence and Sex Discrimination under the Fair Housing Act Based on the statistics, negative actions against victims of domestic violence, such as denial of housing and eviction based on the violence in their homes, is almost always discrimination against women, thereby creating a disparate impact (unfair impact) based on gender, constituting a case of sex discrimination under the Fair Housing Act.

Advertising The Fair Housing Act prohibits the making, printing, and publishing of any notices, statements or advertisements with respect to the sale or rental of a dwelling which indicates any preference, limitation or discrimination because of a protected class covered under the Act

Advertising Guidelines Examples of Permissible phrases Master bedroom Desirable Neighborhood Kosher Meals Available Female roommate wanted Mother-in-law suite No smoking Family room http://www.hud.gov/offices/fheo/library/part109.pdf

Advertising Guidelines Examples of Phrases to Avoid White family home Adult Community Roselawn Catholic Home (without a non-discrimination statement) What about “no pets”?

Advertising - Continued THE KEY: DESCRIBE THE PROPERTY NOT THE TENANTS!

Protected Classes that CAN be mentioned in advertisements Familial status Disabilities Military/Veteran status Section 8 Vouchers

Application & Screening Set useful qualification standards Establish reasonable application/screening process and apply selection procedures consistently. Avoid off-the-cuff judgment calls or stereotyping of applicants. Document! Keep a clear paper trail to justify rental decisions. These suggestions are good general business guidelines that will also help limit your chances of getting a discrimination complaint. First, set clear standards for who you’ll accept, and think about why each standard is necessary. Use application forms that gather the information needed to ensure an applicant meets your qualifications, and don’t request protected class information. Avoid questions or statements that imply a preference for certain protected class groups. You’ll be in a better position to choose a qualified applicant if you use the same application questions and screening process for everyone. Even if you’ve been in the business for a long time and trust your instincts, it’s best to avoid making off-the-cuff judgments about applicants. Some who “look bad” might turn out to be great residents, while someone who “looks good” may be your worst nightmare. Document your selection process. If you decide to make exceptions to your standard process, keep a record of that.

Application & Screening Represent availability accurately and avoid steering! Accept applications and negotiate, rent or sell to the first qualified individual. Apply deposits, fees, and rents to all applicants, regardless of their protected class. Every prospect has different needs and preferences. Let them see the range of what you have available, so they can choose a rental that’s right for them. Don’t misrepresent that a rental is not available when it actually is. If you use a waiting list, add every interested applicant to it. Fair housing laws prohibit steering -- directing someone only to certain areas or to other rentals. For example, a manager cannot tell families with children that they can only rent apartments on the first floor. Likewise, don’t refer people to other communities because of their protected class. Accept applications from anyone who’s interested. Screen applicants on a first-come, first-served basis, then stop screening when one of them meets your criteria, and offer rental to that applicant. It’s helpful to date and time stamp the applications, so you know the order they were received. The best practice is to set reasonable deposits and rent, and apply them to everyone. If you charge different fees or deposits to some applicants but not others, that could open you up to possible allegations of different treatment. WHAT QUESTIONS DO YOU HAVE ABOUT ADVERTISING, OR APPLICATION AND SCREENING?

Tenant on Tenant Harassment: A Housing Provider’s Responsibility

Fair Housing Laws Prohibit Harassment and Retaliation Federal Fair Housing Act (FHA) Sec. 818. [42 U.S.C. 3617] Interference, coercion, or intimidation; enforcement by civil action: It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 803, 804, 805, or 806 of this title.

Housing Provider’s Duty Providing an environment that allows quiet enjoyment of the rental property Investigate allegation; prompt, remedial action Interview both parties* Determine if basis for problem is protected class Seek and interview witnesses Document thoroughly *If talking to alleged perpetrator could cause additional problem, contact local law enforcement

Next Steps… If evidence is found: Use remedies in Landlord-Tenant Law Keep an eye out for retaliation If no evidence is found: Issue to all tenants a notice regarding your policy on non-discrimination

Criminal History Guidance

New HUD Guidance Issued April 4, 2016 HUD’s Office of General Counsel Provides guidance on use of criminal records in housing and real estate transactions Addresses Fair Housing implications of using such records

New HUD Guidance - Background Nearly one third of the U.S. population has a criminal record of some sort An average of 650,000 people released annually from prison in the U.S. Over 95% of current inmates will be released at some point Criminal history and even arrest records interfere with the ability to find housing

New HUD Guidance – Discriminatory Impact Neutral policies that have a disparate impact are discriminatory Racial and ethnic minorities face disproportionally high rates of arrest and incarceration 2014 – African Americans were: 12% of the U.S. population 36% of the total prison population in the U.S.

New HUD Guidance – Discriminatory Impact Evaluate whether the current criminal history policy has a discriminatory effect Evaluate whether the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest Evaluate whether there is a less discriminatory alternative

QUESTIONS????