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

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

3. 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

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

5. 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)

6. 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

7. Coverage by State Laws
Idaho
Washington

8. 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:

9. 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)
*Taken from Idaho Commission on Human Rights website:

10. 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)

11. 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

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

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

14. 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

15. 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.

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

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

18. 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.

19. 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))

20. 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)

21. 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)

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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.

29. 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

30. 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!

31. Questions?

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

33. The Fair Housing Act and Disability
Who is disabled?
Reasonable Modification
Reasonable Accommodation
What can a landlord ask?

34. 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

35. 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

36. 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.

37. COMMON DISABILITY ISSUES
Reasonable Accommodation
Reasonable Modification

38. 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

39. 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

40. Reasonable Modification Examples
Ramps Grab Bars Roll In Shower

41. 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.

42. Reasonable Accommodation Examples
Reserved Parking Caregivers Assistance Animals

43. 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

44. 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

45. 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

46. 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

47. 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

48. 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?

49. 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.

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

51. 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?

52. 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?

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

54. 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
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, 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.

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

56. 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

57. 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

58. 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

59. 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

60. 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

61. 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

62. 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

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

64. 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

65. Domestic Violence and Fair Housing

66. 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.

67. 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

68. 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

69. 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

70. 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

71. 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.

72. 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

73. Advertising Guidelines
Examples of Permissible phrases
Master bedroom
Desirable Neighborhood
Kosher Meals Available
Female roommate wanted
Mother-in-law suite
No smoking
Family room

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

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

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

77. 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.

78. 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?

79. Tenant on Tenant Harassment: A Housing Provider’s Responsibility

80. Fair Housing Laws Prohibit Harassment and Retaliation
Federal Fair Housing Act (FHA)
Sec [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.

81. 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

82. 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

83. Criminal History Guidance

84. 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

85. 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

86. 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.

87. 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

88. QUESTIONS????