Nadeen Green,is Senior Counsel with For Rent Magazine, which publishes its apartment magazines in cities throughout the country and provides Nadeen as a speaker to apartment associations and valued clients. She has been an attorney since 1979, has been teaching Fair Housing since 1989 and has taught more than 600 programs on Fair Housing issues including ones for the National Apartment Association and Multi Housing World annual conventions.





A look at potential post-settlement issues in fair housing cases

Build It and They Will Come

"Doggone"¯ Discrimination

"Target Marketing"¯ - Don't You Become the Target!

"Beware the (Almost) Ides of March"¯

"Immigrant by Choice; Native by Chance"¯

"34 Years and Counting"¦Let's Celebrate with Caution"¯

"Do You Hear What I Hear?"¯ - Some Thoughts on Linguistic Profiling

"Did You Know That Was Going to Be on the Test?"¯

"Could This Possibly Mean"¦?"¯

Two Sides to Every Coin"¦Sexual Harassment

"Take the Time or Discover the Time"¯





"It's Not Over Until the Fat Lady Sings"¦"¯ (or maybe not at least for years!)

[A look at potential post-settlement issues in fair housing cases]"¯


Fair Housing"¦it's the right thing to do!  This is the would-be mantra for many of the fair housing instructors in the industry.  But sometimes we cannot get everyone's attention just by trying to convince them that it is legally wrong (and morally wrong, of course) to make housing decisions based on the race, color, religion, national origin, sex (gender), disability or children of their prospects, applicants, residents and guests.  Sometimes we have to capture industry attention by pointing out that the consequence of unlawful housing discrimination is just plain costly (and it is, with civil penalties potentially ranging from $11,000 to $55,000 and no cap on punitive damages) and risky (and it is, since everyone and anyone, no matter the title or position held in an apartment organization or community, can be held personally liable for acts of housing discrimination).  "Personally liable"¯ means one pays out of one's very own pocket, by the way.  So there are many articles out there offering advice and suggestions about policies and procedures that are best practices when it comes to dealing with fair housing issues.  There are also articles out there that deal with the real world administrative burdens of a complaint or lawsuit (including this author's "Take the Time or Discover the Time"¯ 2004 article on the discovery process in a fair housing case). 


But there are fewer articles dealing with what may happen after a fair housing case is settled, even after the check that resolved the matter has been cashed by the complainant or the plaintiff.   Because a landlord's deciding to settle (which does not in and of itself represent an admission of wrongdoing or liability) doesn't mean that matter is over"¦oh, no, it doesn't.  It is likely that the settlement will require a lot more than money.  More than money, you ask?  What could that possibly be?  Well, read on, dear reader"¦a fair housing case is likely to continue for years, and this article for at least a few more paragraphs"¦


The bad news is that there continues to be widespread housing discrimination.  The good news (at least for fair housing instructors and authors) is that we don't have to make things up for our teaching and writing endeavors.  An example of this good news/ bad news theory is a 2002 federal court case brought by the United States ("the government"¯) that settled through a 2004 Consent Decree.  The basis of the case was the allegation of racial discrimination in the offering of apartments to white prospects and testers, but not to black prospects and testers (certainly nothing original here!).  Now this article is not going to focus on the financial compensation ($180,000! - and we can only wonder about the attorney fees paid by the Defendants).  Nor we will spend time discussing the Defendants, but keep in mind they included the owner of the community where the alleged acts of discrimination took place, the management company, and the rental agent.  And there will not be discussion of the routine requirements (such as an injunction against future racial discrimination and the preparation and implementation of non-discriminatory policies and procedures).   No, the purpose of this article is to look at the conditions under which the community must be operated for the next three years (until 2007!).  We won't be hearing the fat lady sing for a long time.


Here is a partial list of the conditions of settlement:


  1. Advertising:  Whenever the apartment community is advertised in any newspaper, the same advertisement must appear in a specifically named publication that is the largest audited and circulated newspaper reaching the most diverse African American market in the metropolitan area.  [This means increased advertising costs.]
  2. Mandatory Training:  Each year all of the Defendants (and the agents and employees involved in management, administration, and/or the showing, renting and managing of apartments) must have live training.  There are various conditions imposed on the program, and all costs are borne by the Defendants.
  3. Rental Applications and Record Keeping:  The day-to-day operations must now be run under conditions approved in advance by the government.  Records must be kept in accordance with standards set by the government.
  4. Compliance Testing: The government may take steps to monitor the Defendants' compliance, which may include fair housing tests.  For years to come someone will always be looking over the shoulders of these Defendants.
  5. Reporting Requirements:  Every 6 months a report is due to the government, with copies of mandatory education documentation, availability lists, guest cards, rental application logs, and waiting lists.  The reports must also include lists setting forth the occupancy of each apartment with the name and race of each resident (as based on the good faith observation of the appropriate employee or leasing agent) and photographs of leasing offices showing the fair housing signs and any other "For Rent"¯ or vacancy signs.  In the meantime, all rental applications, leases and occupancy lists must be kept in case the government at any time chooses to give notice to inspect such.
  6. Discrimination Complaints: Until 2007 the Defendants must let the government know if anyone complains verbally or in writing about racial discrimination in housing.
  7. Notice to Potential Victims:  The Defendants must publish in certain newspapers and in certain-sized ads, on as many as 5 occasions, a notice summarizing the legal contentions of the government, and a statement that the government seeks information from any person who claims having faced racial discrimination at the community in the past.  This is certainly not a marketing strategy that most landlords would choose to implement!  And the cost of such advertising, estimated to be in the thousands of dollars, will of course be paid by the Defendants.
  8. Notice of Potential Victims:  The Defendants must advise the government of any people who the Defendant may know or believe have been wrongly turned away from the community because of racial discrimination.
  9. Selling or Transferring the Property: If the Owner wishes to sell or transfer the apartment community, that can happen, but only if the buyer agrees to do the things the Defendants are required to do post-settlement.
  10. Changing the Management Company:  If the Owner wishes to change management companies, that can happen, but only if the new company agrees to do the things the Defendants are required to do post-settlement.


So keep in mind the possible result of housing discrimination"¦a charge or complaint or lawsuit.  And if the case settles, as this one did, then it isn't just about paying a settlement (and perhaps a hefty one at that).  It is also about having restrictions and requirements on the operation of the business, and even the sale of the community or business, for years to come.  The fat lady will not be singing until 2007, three years from the signing of the Consent Order in this case.  And if the Defendants violate the Consent Order, such a violation may result in an extension of the terms that have been imposed.  Encore!


"Fair Housing Focus"¯ is written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.  The information contained in this article is not to be considered legal advice, and the author and FRM strongly suggest that you consult with your own counsel as to any fair housing questions or problems you may have."¯




"Build It and They Will Come"¯


The general theory in property management is that if you have done a good job with your homework and market studies, then when you build an apartment community or building (or purchase it from someone who has already built it), the prospects will come.  Then certain of those prospects will choose to become applicants, and certain of those applicants will become residents, preferably the kind of residents who by their actions treat their neighbors and your property well and pay the rent on time.


But when you build or buy an apartment community or building, it is not only the prospects that will come.  You are also likely to be visited by fair housing groups, testers hired by HUD, and advocates for the disabled community.   Their mission is to see just what it is that you have built (or bought) and to see whether you have complied with the accessibility requirements of the Fair Housing Amendments Act of 1988 ("FHAA"¯).  If any of these people believe that you have not so complied, then you may discover that who has come to your community or building is now a Plaintiff, and you are now a Defendant in a fair housing complaint or lawsuit.


More and more developers, owners, and property management companies are finding themselves in this unexpected and unenviable role of Defendant, often along with their architects and civil engineers.  The potential cumulative cost of these complaints and lawsuits is often in the six figures; occasionally the potential cost has been estimated in the millions of dollars.


The issue is this:  Under the Fair Housing Amendments Act (1988), for all new construction ("new"¯ is defined by being designed and constructed for "first occupancy"¯ - for any purpose - on or after March 13, 1991"¦a pivotal date), every (that's every) ground floor unit, or every (that's every) unit in a building with an elevator must (that's must) be built with certain required (that's required) design features.  Failure to have these required design features may result in a complaint or lawsuit which in turn can result in significant costs to the landlord.  Those basic design features are listed for you in sidebar.


These basic design issues are important in three phases in the "life"¯ of an apartment building or community:  (1) the design and construction phase; (2) when the property is being bought or sold; and (3) the day-to-day property management of an existing property which is "new"¯ for purposes of the FHAA.  Let's look at each of these in some detail:

Design and Construction


First and foremost, do not assume that your architect is knowledgeable about the FHAA accessibility requirements.  Recent cases have included architects among the named defendants, and some of these architects have been required to pay monies and even to notify all other architects in their state of the design and construction requirements.  You want your architect to demonstrate knowledge in this area, and if your architect says that they know about "ADA"¯ - the Americans with Disabilities Act - seriously consider finding someone else.  Why?  Because the ADA probably does not apply to your property, with the exception of your leasing office and the parking serving it.  So someone who is confusing ADA with fair housing law is not likely to do right with your design.  In fact, depending on a number of factors, including how the building is funded, there may be other federal accessibility requirements beyond even those in the FHAA.  We've outlined some of those other laws in the sidebar.


Assuming that your architect does in fact demonstrate considerable knowledge of fair housing law and its design and construction guidelines, now you should ask to see the architect's  Errors and Omissions insurance policy.  You want your architect to have coverage limits that are sufficient, and that means substantial, not a mere $250,000 as one architect involved in a recent fair housing legal matter had.  Recent lawsuits have resulted in potential monetary exposure of as much as $1.5 million. Depending on the size of the property, it might not be unreasonable for you to require at least $1 million in coverage.


Next, you want to see if you can secure an Indemnification Agreement by which your architect agrees to hold you harmless and indemnify you as to any and all claims that may arise due to the actions of the architect (that is fancy legal language that ultimately says that your architect will "stand in your shoes"¯ if you get into legal trouble because of your architect and the design plans).   That agreement should also say you will be named as an Additional Insured on the E & O insurance policy, and that you will get a Certificate of Insurance showing this.  You would be wise to get with an attorney to have this agreement drafted for you to be sure you are adequately protected.


Even with various legal protections in place a good business decision would be to have the plans and specs reviewed.  Fair housing issues are very specialized, and the investment in a review of your plans by someone dedicated to this area of law is wise.  In fact, it may prove (now and in the future should you wish to sell your property) to be one of the best proactive decisions that you can make for both legal and business reasons.


It is important that your architect and engineer work together, as any changes that the engineer might make, although structurally sound and quite logical (such as a re-grading due to topography) may actually run afoul of the fair housing laws.   There needs to be an orchestrated procedure whereby proposed changes are brought to the architect's attention before execution (no matter how minor they may be), with you being advised of the need for any such change and receiving confirmation that the change once again incorporates fair housing compliance.


You should also pay close attention in the field during construction.  The construction superintendent may know that thermostats are supposed to be mounted no higher than 48"¯ from the floor, but unless those thermostats are subject to frequent checks, the line construction workers may not pay attention to this kind of detail.  This is particularly true since many of the FHAA requirements involve variations from the way many construction workers have "always done"¯ their work in the past.  Consider having the architect of record's inspection and supervision duties include inspection for the FHAA requirements during construction.


Don't rely on the government!   Just because you receive a Certificate of Occupancy or some other official document, don't assume for a moment that your property has been evaluated and approved from a fair housing perspective.  Your C/O is based on compliance with a variety of building codes, fire codes and the like, but in fact, it is almost guaranteed that no fair housing issues have been addressed.  And having that C/O will not be a defense at all should you face a complaint or lawsuit; quite simply, in such a situation, your C/O has no value at all!


Buying or Selling a Property


Whichever side you may be on in the transaction to buy or sell a property, you must consider the fair housing FHAA accessibility requirements if that property was built for first occupancy on or after March 13, 1991.  If you are buying, it is important to know what you are buying; if you are selling, you need to be prepared to anticipate and address concerns about this issue that your buyer may have.


A review for fair housing construction compliance should be part of a Buyer's due diligence.   The property should be inspected (literally inside and out) by someone informed and knowledgeable about fair housing accessibility.   No matter the outcome of the inspection, you should ask for an Indemnification Agreement by which the Seller agrees to hold you harmless and indemnify you as to any and all claims that may arise based generally on the construction of the property but with specific reference to fair housing construction and design issues.  (This time the fancy legal language should ultimately say that the Seller will "stand in your shoes"¯ if you get into legal trouble because of design and construction issues; get with your lawyer on this).  If the inspection report shows satisfactory compliance and you have a well-crafted Indemnification Agreement, then you will likely consummate your purchase.  But keep in mind, even with an Indemnification Agreement, that a troublesome report can mean some serious trouble later on.  Know your risks so that the business decision you make is an informed one.  As a legal matter, there is still no final resolution as to whether a property built outside of compliance is a continuing violation of the FHAA (thus with no statute of limitations) or whether such a property is only in violation of the law for the first two years of its existence running from the date of Certificate of Occupancy.  As a practical matter you may wish to renegotiate the purchase price of the property to reflect the risk you might be taking.


What does this mean if you are a Seller of a property?  You need to know how you will respond to a possible request from your potential Buyer that you provide an Indemnification Agreement, and you need to understand your continuing risk if you do in fact provide one.  You need to be prepared for the selling price of the property to be adjusted downward to compensate the Buyer for the potential risk, and you even need to be prepared for the sale of your property to fall through because of a reluctant Buyer who is concerned about the fair housing issues.


Managing An Existing Property


So, today you are the owner of a property.  It was built for first occupancy on or after March 13, 1991, and you know there are problems with the design and construction requirements of the FHAA.  What do you do now?


If the design issues are relatively minor, consider fixing the problems.  A realistic cost-benefit analysis may indicate that the costs to remedy are worth the investment.  You may find that if you are served with a complaint or lawsuit, the associated costs may far outweigh what you would have spent on remedying the situation.


Pay particular attention to the common areas and routes to and from the apartment units.  Advocacy groups have been known to visit properties, note that there is a need for curb cuts or an accessible route to an outside door, and then file suit without ever having set foot in your leasing office or asking questions or making requests of your leasing staff.


Consider a privileged game plan to deal with the issue as scenarios arise.  If the remedies for design and construction problems are truly cost prohibitive, you might want to dialogue with your legal counsel on a "what if"¯ basis"¦"what if someone needs to have something we were supposed to provide, but didn't?"¯  Your plan might be to address such scenarios as they arise, with every effort made to make it possible for anyone to reside at your property despite their disabilities.  In such case you want to keep this information between you and your counsel (which is what is meant by "privileged"¯), because otherwise your well-intentioned plan can possibly be used against you as your admission of guilt and liability.  Any notes or memos or letters to your counsel should be labeled as "Privileged and Confidential"¯ and you should not let too many people in your company or organization see these.


Now you need to have a plan for requests from prospects, applicants or residents.  Your leasing staff should know what to do when someone says:  "There will need to be ramp to that doorway"¯ or "Can you put a levered door handle on that door?"¯ or "What about this curb?"¯  If you have sophisticated staff, they can be instructed on how to respond to such queries.  If you have a less sophisticated staff, or a lot of turnover of leasing professionals, then perhaps the best policy is to direct them to someone within your operations who is knowledgeable and empowered to advise as to how such a situation should be handled.  Should the inquiry be deferred, assure the person that their question will be directed to management and that an answer will be forthcoming soon.  And make it soon!  Forty-eight hours at the most for a response, with twenty-four hours being preferable whenever possible.



This area of fair housing law is an active one right now.  Fair housing groups and plaintiff's attorneys are given the opportunity to go to classes to learn how to investigate and file fair housing complaints based on accessibility issues.  In fact, most cases that are filed based on design and construction issues are brought not by individuals who may have visited or considered certain apartment properties, but rather by organizations that are acting on behalf of the disabled community as a whole.  And these cases hinge not on the traditional "he said - she said"¯ dialogues between prospects or residents with leasing or management personnel.  Rather, they are won or lost based on undisputed physical evidence (the width of a doorway, the slope of a grade) and its interpretation under the FHAA.


Build it that so that when they come, whoever they are, they do not have a basis to bring you into the courtroom.


 This Fair Housing Focus article has been co-authored by Teresa L. Kitay, Esquire, Coughlin & Kitay, P.C. who specializes in defense of Fair Housing Act accessibility cases and Nadeen Green, Senior Counsel with For Rent MagazineĀ®, who regularly teaches fair housing law to the apartment industry.  The information contained in this article is not to be considered legal advice, and the authors and their organizations strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have.






or the case of the Golden Retriever!


October 2000


There is an "urban legend"¯ that is beginning to take shape in the Georgia fair housing

arena, and like most such stories, there is little accuracy and much fabrication.  Because these stories can take on a life of their own, some clarification is in order. 


First of all, the First Amendment is still alive and well and has not gone to the dogs as some people would have you believe.  We must all be aware of some of the tactics some housing providers use to discourage people from seeking housing, or to indicate a preference for certain types of renters or home-buyers (such discouragement and preference is a civil rights violation).   One of those tactics is advertising, and the use of words and pictures that make up what can either be an open or closed invitation to the general public.  The relevant law is pretty easy to understand and has been in place for over 30 years (a dog's age, if you will).  If you violate this law in your use of words and pictures, you are likely to have interaction with the Georgia Commission on Equal Opportunity.  But please be aware that the GCEO does not have the power to impose fines because they believe an ad to be discriminatory.  Such an allegation can be refuted and anyone accused of unlawful advertising has the right to have the matter transferred to the federal court system and the right to a jury. The court system provides anyone and everyone with a "day in court"¯, a review subject to a "reasonable person"¯ standard by the finder-of-fact (judge or jury), and an appeal process to the highest court in Georgia.  Arguably, should someone believe that First Amendment rights have been trampled, there is recourse to the United States Supreme Court.


Furthermore, the GCEO is not dogging anyone on this matter. In fact, it has been responsive to the housing industry request for more education, rather than being  "taught in the courtroom"¯ which is the approach that other States sometimes take.   We have the opportunity to use them as a resource, take advantage of the many programs they offer, and engage in debate as needed on disputed matters.  


Finally, there has been no case whereby an Atlanta newspaper had to remove a Golden Retriever from an ad because the dog allegedly is associated with the white race.  So, please don't perpetuate that dogmatic rumor!


Making sure that all of your advertising complies with fair housing law will keep you out of the dog house and ensure that your housing is open to all"¦which is what Equal Housing Opportunity is all about!


"Fair Housing Focus"¯ is written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.  The information contained in this article is not to be considered legal advice, and the author and FRM strongly recommend that you consult with your own counsel as to any fair housing question or problems you may have.




July 2001

"Target Marketing"¯ - Don't You Become the Target!


The apartment industry knows the value of marketing and advertising apartment communities.  Just look at the wealth of ads in newspapers, print publications, and flyers, and on billboards, cable television and the Internet.  There are even those ubiquitous cartoon characters sweltering in the hot sun, holding their balloons and waving at the prospects driving by.  Many of you are well aware of the perils and pitfalls of what you say (the words you use) and how you say it (inferences from the pictures you use) and there are many excellent articles out there to help you with these topics.  But where you say your message can be problematic as well, and as you know, in the fair housing arena, problems can mean big dollars.


It is not unusual for our industry to engage in "target marketing"¯ by which landlords seek to target certain groups (perhaps residents at competing communities) as potential residents.  But that target marketing could be interpreted to indicate a preference for certain people over others, or be considered discouraging to the non-targeted folks, and that is discrimination under fair housing law.


Let's look at some industry marketing practices and some of the pitfalls that might await you:


Zip Code Mailings:  Quite often management companies will design a mailer, flyer or postcard as a marketing tool.  They will then choose certain zip codes within the metropolitan area to which to send these.  The Fair Housing Act (FHA) actually has a term for this type of marketing, and that term is selective geographic advertising.  The concern is that this practice can possibly lead to discriminatory results and may even indicate a violation of the FHA.


If you decide to do zip code mailings, do so with great caution.  In your company's records there should be documentation of the good, sound business reasons for selecting the particular zip codes.  And if you can't articulate just what those business reasons are, then reconsider this particular marketing practice.


Nationwide Insurance Company found itself in a fair housing lawsuit in Virginia.  One of the allegations against Nationwide was that they had chosen to send their brochures (for people to buy homeowner's insurance) only to the zip codes for neighborhoods known to be white or predominantly white, and that a conscious decision had been made not to send those brochures to neighborhoods known to be minority neighborhoods or significantly mixed.  This was particularly egregious in the eyes of the jury and apparently contributed to the jury's verdict.  [Oh, by the way, that verdict had punitive damages against Nationwide for $100,000,000 - that's one hundred million dollars, dear readers.]


Targeting the competition:  Hey, we all know just how competitive this business can be, and many a landlord is not above trying to steal away the residents from down the street.  How better a way to do this than to send those residents a marketing piece, an invitation, so to speak, to consider a different apartment home.  But why do you want the competitor's residents to begin with?  Aren't there lots of people throughout the metropolitan area to whom to extend that invitation?  Could it be that the residents down the street are so like the residents you have or want?  Ooops!  Now maybe, just maybe, you've crossed a line you certainly didn't intend to cross and one which you probably don't want to cross.


Once again, if you choose to do this type of marketing be sure you can justify your decision with business reasons that do not reflect an intentional or unintentional bias as to particular groups of people who may have standing under the fair housing laws.


Targeting certain groups:  Sometimes you will find that circumstance and location will give your property a limited diversity as particular groups will often settle into certain neighborhoods within a metropolitan area.  This is fine as long as it has happened and continues to happen by choice of the prospects and residents, and not by choice of the landlord.  So let's say that your community is predominately Somali or Hispanic in its demographics.  Is it now OK to target Somali or Hispanic prospects (after all, wouldn't they like to live among others of their own kind and culture)?  Hmmm"¦maybe and maybe not (now you know for sure that a lawyer is writing this article!).  It is probably not OK if you only advertise to one group (no matter how well-intentioned you may be) as that once again raises the preference-for or discouraging-of all other groups of people issues. It may be OK however, if your overall advertising campaign (all of your advertising efforts during the relative period of time) together show a broad outreach.  This is where the mainstream advertising"¦apartment publications, newspapers, the Internet"¦ can be helpful, because the dissemination of the information is so widespread.  And further outreach in various areas to various demographics, such as through the use of billboards, can be the counterbalance to the more focused, targeted advertising that could pose problems for you.


Your advertising and marketing decisions should parallel the other decisions you make as you set policies and procedures"¦before you act, think out just why you are planning to do what you are planning to do.  When you are sure you have good reasons, write them down as part of your policy or procedure.  Then follow what you have decided and document that you have done so.


Please be careful that your targeted marketing programs don't target you as the defendant in a fair housing proceeding!


"Fair Housing Focus"¯ is written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.  The information contained in this article is not to be considered legal advice, and the author and FRM strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have.




August 2001



The Ides of March is March 15th and that date was a momentous one (albeit not a good one) for Julius Caesar.  The 13th of  March, 1991 is a momentous day in fair housing, although it is not the Ides of March (although in some months, such as April, the Ides are the 13th!).  There now, are you thoroughly confused?  And what on earth does this have to do with fair housing?


Ready?  The Fair Housing Amendments Act established protected-class status for people with handicaps when it was signed into law by President Ronald Reagan on September 13, 1988.  This law went into effect 6 months later on March 12, 1989.  One of the substantial provisions of this new act was the new-construction requirements (the fair housing accessibility guidelines).   But since there were apartment communities in the process of actually being built, the "deadline"¯ for these requirements was extended for 2 more years.  Thus, the construction accessibility guidelines went into effect for certain units that were first occupied on or after March 13, 1991.  Essentially the law says that as to multi-family housing (4 or more units), all ground floor and elevator accessible apartments ("covered units"¯) built for first occupancy on or after March 13,1991, must have certain design features, and the general property must have certain features as well.


Now the guidelines are extensive, confusing and conflicting (and voluminous in the telling), but in a nutshell here is what the guidelines require:


  • Buildings must have an accessible entrance on an accessible route.
  • Public and common use areas must be accessible and usable.
  • All doors designed for passage must be usable.
  • There must be an accessible route into and through a covered unit.
  • Light switches, electrical outlets, thermostats and the other environmental controls in covered units must be in accessible location.
  • The tub and shower and toilet areas in covered units must have reinforced walls should the resident want to have grab bars installed.
  • The bathrooms and kitchens of covered units must be usable.


Unfortunately, testing and lawsuits have shown that as much as fifty per cent of new construction may have been built incorrectly.  Even if you or your company were not the builder or developer of the community, you have liability for the "condition"¯ of the apartments.  And the day-to-day management and decision making as to the needs of your prospects or residents is often based on that important March 13, 1991 date.  Let's apply this to a real-world scenario and work through an analysis or flow chart, if you will, of what you need to think about.


A resident who must use a wheelchair advises you that one of the doorways in their unit just isn't wide enough to easily accommodate that wheelchair (they can get through, but it is a struggle to get lined up just right and go through that doorway).


Question 1:  When was this community first occupied?


If your property received its certificate of occupancy before March 13, 1991, then you have no legal responsibility yourself as to that doorway (your property did not have to be built subject to the fair housing accessibility guidelines).  However, if the resident would like to widen the doorway in a safe, sound and workmanlike manner, you must grant permission for that to happen at the resident's cost.  This is a reasonable modification.  When the resident is ready to move out you cannot require the doorway to be made narrow again, as the modification does not affect the usability of the doorway for future residents.


If your property was first occupied on or after March 13, 1991, then the analysis must continue:


Question 2: Is the unit in question a "covered unit,"¯ that is, one on the ground floor or accessible by elevator?


If it is not a covered unit, you have no responsibility, but again, you must allow the resident to make the modification if they so wish.


If it is a covered unit, then:


Question 3: How wide is the doorway?  Does it meet the fair housing accessibility guidelines?


Now you will have to pull out a tape and measure that doorway, and then seek out a reference or source to determine whether that doorway was built correctly (wide enough to begin with).


If so, then again you have no further responsibility but must allow the resident to modify.


If not, you have both an immediate and long range problem.  The immediate problem is that making that modification to the doorway is now your responsibility.  Do it!  The long range problem is that your community may be in continuing violation of the Fair Housing Act, and it may not just be a doorway that is problematic.  There may be a multitude of "sins"¯ in your construction, and other landlords who have found themselves in a similar situation have paid as much as a million dollars in "retribution'!  Your situation in such a case is way beyond the scope of the article.


The Ides of March proved to be an ill-fated date for Caesar; the almost-Ides of March 1991 may be ill-fated for the landlord who has a community that was not built in compliance with fair housing law.  You owe it to your prospects, your residents and yourself to understand just where you stand as to this important matter.  Beware!


The author expresses her appreciation for the wisdom and input provided by Theresa Kitay with the law firm of Coughlin & Kitay, P.C.  Ms. Kitay is well-versed in the industry's issues with the fair housing accessibility guidelines.  She may be reached at770.840.8483.


"Fair Housing Focus is written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.  The information contained in this article is not to be considered legal advice, and the author and FRM strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have."¯




October 2001

"Immigrant by Choice; Native by Chance"¯


The events of September 11, 2001 have forever changed not only America but the world.   And while we may have been powerless to avert those tragedies, we are not powerless in how we will choose as a country and as individuals to react.   As housing providers the multi-family housing industry now must also make its choices as to how it will react.   And we need to think about doing what is right, in all senses of the word.


This article has been prompted by some of the responses that have been considered by our industry, as well as by dialogue among those of us who see these issues as not only important but as fundamental to what America is all about.


So what are the right choices for our industry to consider?


"Right"¯ as a legal issue.


This is fundamentally a fair housing article and thus the first issue is that of civil rights.  It is unequivocally clear that housing cannot be denied based on a person's race, religion or national origin.  Quite frankly, there are landlords who have never liked Arabs (do you even know what an Arab is?; that, for example, an Iranian is not an Arab?; that most Arab-Americans in the US are Christian?).  September 11th has now become a justification for those landlords to deny housing to this group or to make the qualifications so much more restrictive and difficult for them.  And for those whose prejudices extend to other groups (Blacks, Hispanics, Asians, etc.) such challenging and perhaps insurmountable qualifications provide a good "excuse"¯ to turn such other groups away from housing as well. 


The argument has been made that the landlord should confirm that a person has the right to be in the US.  The fallacy is that with the possible exception of certain tax assisted housing, that the landlord has no duty whatsoever to monitor the standing or status of any resident.  And as a practical matter, are most leasing agents knowledgeable and astute enough to evaluate the myriad of types of documentation that may be presented?  And even if your motives are "pure,"¯ do you want to deal with the ramifications of various groups of people believing that they may have been discriminated against by you?


A further argument has been made that the landlord needs to see immigration status in order to determine whether the resident will be here long enough to fulfill the lease term.  However, it is not unusual for a foreign national to have extension papers in process and have nothing to show as relates to the pending extension application.  And as a practical matter, what about those American citizens (the WASPish kind, of course)"¦have any of them ever left before the end of the lease term?


In short, the citizenship, immigration status or national origin of your prospects, applicants and residents are immaterial to your role as a landlord.  Do not ask whether they are US citizens.  Your concern should be whether they are a good business risk and you already implement the tools to evaluate this"¦income verification, credit checks (for which a Social Security number is not mandatory), and previous landlord history.


Do not create policies and procedures that are a pretext for your desire to exclude certain groups.  Wrongful exclusion based on race, religion or national origin violates fair housing law and can be very costly.


"Right"¯ as a moral issue.


This section is not required reading for those of you who do not want to hear this author preach.  In such case, please proceed to the next topic.


  • A Hindu businessman is gunned to death; the "American"¯ who assassinated him did not comprehend that this person was neither Arab nor Muslim (as if that would justify this murder).  Oh, and by the way, the victim was an American, too.


  • An Arab-American is relieved to learn that at least 100 Arab-Americans died in the September 11 attacks.  Now he would be "allowed"¯ to grieve along with everyone else.


  • A family with a six-year old son named Mohammed is telling their child that his new name is "Mikey."¯


  • Look up "Arab"¯ in the 2001 Merriam-Webster Collegiate Thesaurus.  The synonyms are "vagrant"¯ and "huckster."¯


It has never been easy to be "different"¯ in our American society (although "different"¯ has an ever-changing definition).   Many people (Blacks, Jews, the Irish, gays and on, and on, and on) have faced day-to-day discrimination for a long time (the motivating reason for our fair housing laws) and sadly, many will face it in the future.  But let us not as an industry consider indulging in our bigotries and then couch them in fabricated reasons of patriotism.  That is nothing less than racism combined with hypocrisy. 


An immigrant is here by choice, a native by chance.


"Right"¯ as a practical issue.


Even if it were not legally wrong to deny housing to those who cannot prove their citizenship or their standing in this country, there is no practical reason related to terrorism to throw obstacles in the way of our foreign nationals.   You don't want to rent to terrorists?  Well, of course not, and this author does not want you to rent to terrorists either.  In fact, you may wish to consider additional questions for your application. 

  • Are you a terrorist?
  •  If so, what faction do you represent?
  •  If so, what, if any, heinous plots are you involved with?
  • May the landlord share this information with third parties, including law enforcement officials?


In fact, since terrorists are not a protected class you can ask these questions with fair housing impunity and base your housing decisions on the answers.  There, we've solved the problem (these articles are so helpful).


We need to be so careful that with a sincere motive and justification to keep out terrorists that we do not otherwise deny housing to others.  Unfortunately, while terrorists may be a lot of things, stupid is not one of them.   They will come to our communities (the September 11th evil-doers did) and they will come with all the right paperwork to meet our needs and we will rent to them.  Sad, but true.  But not a reason to deny housing to all of those out there who may be "different."¯.


"The very fabric of our nation is the rich diversity of our people."¯

Mel Martinez, Secretary of Housing and Urban Development

September 26th, 2001


"Fair Housing Focus is written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.  The information contained in this article is not to be considered legal advice, and the author and FRM strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have."¯




February 2002

"34 Years and Counting"¦Let's Celebrate with Caution"¯



This year marks the 34th anniversary of the Fair Housing Act, and there is cause for both celebration and concern about this important industry topic.  Many of us who have the privilege of teaching fair housing law to the multi-housing industry are impressed with the commitment that is made by property managers and owners nationwide.  They continually invest time and effort in outside or in-house training programs, or review and update their policies and procedures, all done with the intent of doing whatever it takes to ensure equal housing opportunity for all.  We most certainly should celebrate not only the wisdom of these landlords, but their spirit as well.


On the other hand, there is cause for concern, as some landlords just don't seem to "get it"¯ and continue to discriminate in ways that can only lead one to believe that they are incredibly naĆÆve, stupid or audacious.  As these landlords refuse to rent second floor apartments to families with children, or make race-based denials to people based on their voices, or deny a reasonable accommodation to a person with a disability, they are not only violating the civil rights of those looking for an apartment home.  They are also perpetuating the myth of the "evil landlord"¯ in the minds of not only fair housing advocates, but those of the general public as well.   They do a disservice to all of you out there who are doing the right thing (and I know that includes you, or you would not be reading this article in the first place!).


But there are other reasons for concern, and that is because fair housing law continues to expand.  It really should be simple"¦don't make any housing decisions based on a person's protected status, such as race, color, religion, sex, national origin, or that they may have children or a disability.  But even the most savvy of property managers or owners must keep up with the new issues and topics that may fall under the umbrella of fair housing.  Did you know:


  • That landlords are now being sued for discriminatory housing decisions based on the way people talk on the telephone?  This is called linguistic profiling and some studies indicate that most of us can determine a person's race (particularly white or black) or national origin (such as Hispanic or Asian) just by hearing a person count from one to twenty.   Prospects may now be able to have their day in court simply by alleging that you didn't offer an apartment or set up an appointment because you knew that they were of a particular race or ethnic group based solely on the telephone conversation.   The wise property manager or owner will work with leasing staff to develop some telephone procedures to better ensure that this claim cannot be made; at the very least every telephone prospect should be asked if they would like to make an appointment to visit the community.
  • That at least one local jurisdiction has decided that all construction for housing, be it multi-family or single-family, must be built with visitability?  This means that every dwelling must be constructed in a manner that will allow for people with disabilities to visit with the residents.  While this is a new and localized topic, our industry would be well-advised to keep our collective ears to the ground, as this type of local law would expand on the federal fair housing accessibility guidelines for newly constructed apartments, which are applicable only as to ground floor and elevator accessible apartments.
  • That a policy of zero tolerance for domestic violence incidents may give rise to a fair housing complaint if the victim as well as the perpetrator is required to leave?  How can this be?  Well, a high percentage of the victims of domestic violence are women, and if they are evicted because they have been assaulted, then a zero tolerance policy is more harmful to women than men"¦and sex (gender) is a federally protected class.  The theory is that women in such situations are arguably victimized twice, once by the abuser and once by the landlord.  So the wise landlord will review domestic violence policies and make an extra effort to work with abuse victims to see whether a successful rental relationship is possible.  And think about contacting a local organization for victims of domestic violence now so that they can be a future resource if needed.  Remember that your staff are not social workers or marriage counselors, and the best thing to do is to encourage residents to reach out to such professionals.
  • That target marketing can be a costly mistake (Nationwide insurance faced a jury verdict of $100 million dollars in a fair housing case in part because of such a tactic.)?  If you are targeting a particular group, area of town, zip code, etc., it is wise to have a good written business reason for doing so.   And be sure to have that outreach be part of an overall advertising campaign that broadly reaches your entire metropolitan area.


We have made progress in the realm of equal housing opportunity, no matter the nay-sayers.  And there are many property managers and owners deeply committed to the concept.  So celebrate that progress.  But remember that others may not be so willing to do the right thing, and that the right thing may be more involved than you had thought.


"Fair Housing Focus"¯ is written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.  The information contained in this article is not to be considered legal advice, and the author and FRM strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have.




April 2002

"Do You Hear What I Hear?"¯ - Some Thoughts on Linguistic Profiling


It has been said that more people have been hurt by words than by guns.  This anonymous aphorism makes the point that what is said about someone can be damaging and harmful.  But some studies and now some pending fair housing cases are indicating that it is not just what is said about someone, but what they themselves say and how they say it, that can be a source of harm in the form of housing discrimination.


When you speak to someone on the telephone, you racially profile them.  (Oh yes, you do, and odds are you are probably quite good at it!)  Actually, you racially profile people all of the time.  When you see someone, you note whether they are white or black, Asian or Hispanic, perhaps Native American or Pacific Islander.  The race of the person may not matter at all to you, but you are aware of it, just as when you hear someone call in to a radio talk show, or perhaps learn someone's name.   And racial profiling is not in and of itself unlawful, evil, or even rude (remember that at any given moment someone is racially profiling you!).   Racial profiling only becomes an issue when the awareness or acknowledgement of someone's race has an effect on how that person is treated in the housing arena.


Linguistic profiling is a form of racial profiling that is based not on how the person looks, but rather how they sound...their voices, their pronunciation, their grammar.   A February 2002 ABC News program calls this the "Color of Voice."¯  And making housing decisions based on someone's color of voice can get you into the same fair housing trouble as making housing decisions based on someone's skin color.


There has not yet been a determining case that concludes that linguistic profiling was in fact the basis for housing discrimination, but cases have been allowed to go forward on that premise.   Research has suggested that people are able to correctly identify with about an 80 percent accuracy the race of a person from hearing them say "hello"¯ or hearing them count from one to twenty.


There are fair housing cases in abundance where housing was denied once a landlord met or saw the prospect and didn't want to rent to that person because of race or color.  Now it will be interesting to follow some of the linguistic profiling cases and see if it will be shown that an apartment was not offered or rented because the landlord did not want to rent to that person because of race or color that was not "seen"¯ but rather was "heard."¯


Another adage is "forewarned is forearmed"¯, so now that you know about linguistic profiling, how do you manage this in your leasing office and what can you do to minimize the chance that you might be accused of housing discrimination based on how your prospects may sound?


In a perfect world (and we certainly don't mean the apartment industry here) all of your leasing agents would have standard greetings and information to share with telephone prospects.   And it would certainly be wise to work with the leasing staff to teach them some basics for when they pick up the telephone and welcome people to your community. 


Likewise, keeping apartment availability logs (with apartments being logged in and out by date and time) as well as telephone logs (tracking inquiries by date and time) can be a valuable technique to dispel notions that "you told me you didn't have a two bedroom apartment because I sounded (race or color) to you."¯  These parallel records can help you show that you said you didn't have a two bedroom apartment at that time because you didn't have one.


But perhaps the 3 most valuable procedures are these:


  1. Return every voice message call.  No matter what!  There should be no excuse not to return a call from someone who was interested enough in your community that they called you.  Not only is failing to return calls rude and bad business, it is now potentially dangerous.  Instruct your staff that every message will be responded to, promptly and pleasantly, and that they should make a record that they have indeed done this.
  2. Always conclude with an invitation.  Be sure that at the end of any conversation that an invitation is extended to the prospect.  Again, no matter what!  The conversation could be misconstrued as discriminatory is some way, through no fault of the leasing agent, and the fastest way to correct that misrepresentation is to invite the prospect to visit.  "Even though we don't have any two bedroom apartments now, you are still welcome to visit us"¦may I set up an appointment?"¯ or "Would you still like to visit us even though we don't have tennis courts?  If so, let's make an appointment"¦"¯ can be like an insurance policy for you as the landlord.  If the prospect declines the invitation, then that should be noted accordingly.
  3. Test your staff.   From time to time check to be sure that your leasing staff is following the above.  Have people leave messages asking to be called back; have people call and ask about an amenity you don't have.  Then see how your leasing agents handle this.  If they return calls and issue invitations, reward them.  If they don't, then work with them or find someone who will not put you at risk.


"Of course, some people sound black, and some people sound white.  I don't care if they realize that I am black"¦But give me the same chances that you give everybody else.  I'm as good as the next person."¯ - James Johnson, Plaintiff in a linguistic profiling fair housing lawsuit.


"Fair Housing Focus"¯ is written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.  The information contained in this article is not to be considered legal advice, and the author and FRM strongly suggest that you consult with your own counsel as to any fair housing questions or problems you may have.



May 2002

"Did You Know That Was Going to Be on the Test?"¯


This is an article that does not necessarily have to be read by those of you who are taking seriously the need to manage your communities in compliance with the Fair Housing Act.  If you have good policies and procedures (thought out, written down, followed and documented), if you are training your employees (all of them), and if you are conveying the message that you expect equal housing opportunity to be offered to all your prospects, applicants and residents, then you probably won't benefit much from what is presented here.  If, however, you are one of those landlords that still thinks you can run your community however you like and the laws be darned, then you might want to read this so that you will be aware of the strategies of those folks (advocates, testers, lawyers, etc.) who might not agree with what it is you are doing.


Testing is alive and well, and testers are alive and well-instructed.  In fact, a recent (April 2002) program at The John Marshall Law SchoolĀ®'s Fair Housing Legal Support Center was attended by over 200 people learning about "Testing & Investigating for Fair Housing Violations."¯  Perhaps as noteworthy as the education and information that was presented was the obvious dedication and passion for fair housing that was demonstrated by the attendees.  Make no mistake, these people are on a mission and that mission is to ferret out acts of unlawful housing discrimination and to make those who commit such acts pay accordingly.


Generally, when we in the multi-family industry think of "testing"¯ we think of the traditional event whereby people come to your community, pose as prospects and evaluate your response to their situations.  These people may represent different races or ethnic groups, or perhaps they will be a disabled/non-disabled set of testers, or ones with and without children.  Based on your local laws, the tests may even be voice-recorded or video-taped.  This testing is still a core tool used to expose and prove housing discrimination.


But there is more to it than that.  It is not uncommon for some landlords to make up reasons to cover up discrimination.  "Oh, it wasn't because they were Mexican that we didn't rent to them, it was because of their credit"¯ (when Anglos with equally poor credit have been rented to) or "Oh, we like children, but that family didn't make enough money to live here"¯ (when adult-only applicants with similar incomes have been rented to).  In fact, there is a legal term for such creative rejections, and that is called "pretext"¯ - or a reason or motive given to cover up the real reason or motive.   Now if someone believes that your reasons for not renting are a pretext, they have to prove that.  So, you may be thinking, "well, they may believe it was a pretext, but they can't prove it."¯  And that is where you may be wrong.  Because in addition to the traditional testing, they are more tricks up the sleeves of those aforementioned advocates, testers, lawyers, etc.  So, if you are choosing to discriminate and then making up pretend reasons why you didn't provide a housing opportunity, know that you may be found out through the following ways:


  • Your paperwork may be requested or ultimately subpoenaed.  This means that your files will be scrutinized, with people looking, for example, at the credit reports for the Anglos that you rented to instead of the Mexicans, or the incomes of your residents without children.  Will your documentation support your decisions or prove the pretext?
  • The data regarding your community may be requested or subpoenaed.  What will the statistics show regarding prospects and residents, now and in the past? 
  • With information from the files about prospects, those whose applications were rejected may be contacted.  How good do they feel about the reasons they were given about not being able to rent from you?
  • Your ex-employees may be interviewed, and this can take place early in the process, even before any formal allegations have been made about your practices.  What will those former employees have to say about you and the decisions that have been made in the past about to whom you rented (or more significantly to whom you didn't)?
  • Your tenants, past and current, may be interviewed, and once again this can take place early in the process.   Would you be worried about the stories they may tell?


If it is your choice to discriminate in housing there is probably little or nothing that anyone can say to convince you otherwise.  Just keep in mind that while you may find it easy to discriminate, it may not be quite so easy to keep that discrimination a secret from the very people you might not want knowing about it.   And those people come with dedication and determination, as well as the tools and methods to expose and do away with violations of this basic civil right, the right to Equal Housing Opportunity.


"Fair Housing Focus"¯ is written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.  The information contained in this article is not to be considered legal advice, and the author and FRM strongly suggest that you consult with your own counsel as to any fair housing questions or problems you may have.  This article previously appeared in Units, the magazine of the National Apartment Association.



January 2003

"Could This Possibly Mean"¦?"¯


At any given moment there are landlords who are out there actively discriminating, inadvertently discriminating, or being perceived (correctly or not) as discriminating.  Some of these will find themselves referenced as defendants or respondents in fair housing lawsuits or complaints, while others might find themselves the subject of local, state or national news stories.  While many of the issues will be rather run-of-the-mill (but as wrong as ever), such as refusing to rent to minorities or families, or having new construction that does not meet fair housing accessibility guidelines, some of the issues are a bit more exotic, and certainly intriguing.  They may or may not forecast the direction of future discrimination claims (and may not always be "precedent"¯ in the legal sense), but they might deserve just a few minutes of your attention.


Employment discrimination is as active an arena as that of housing discrimination, and studies are often conducted to evaluate what is happening in the workplace.  One such recent study has found that job applicants with white-sounding first names are more likely to have a response to their resumes than applicants with black-sounding first names.  The study involved sending out 5000 resumes with "white"¯ names such as Neil, Brett, Greg, Emily, Anne and Jill and "black"¯ names such as Tamika, Ebony, Aisha, Rasheed, Kareem and Tyrone.  One in every 10 "whites"¯ received some sort of response (by telephone, letter or email), while only one response was sent for every 15 "black"¯ applicants.  Could this possibly mean that landlords may someday be accused of discriminating in the leasing process because applicants have black-sounding names?  Perhaps, especially when you consider that there have been lawsuits brought because of applicant photos (alleging that landlords knew what people looked like) and that there are currently pending lawsuits on linguistic profiling (alleging that the landlords knew the person was black because of how he/she sounded on the phone).  In fact, a recent linguistic profiling case settled for $10,000.


55+ Housing allows landlords meeting certain criteria (the 80-20 rule) to deny housing to people with children.  Some landlords have gone further and will not allow "young adults"¯ (18 to 35) to be part of the 20% calculation.  While such a policy may be lawful (depending on state and local law), the Arizona courts have said it may have to be waived when there is another fair housing consideration"¦that of disability.  And thus a couple, both 55+ in age, must be granted the reasonable accommodation of allowing their severely developmentally disabled 26-year-old son to live with them at a 55+ community.  Could this possibly mean that landlords may have to let younger people, and arguably even children, be part of the 20% population in 55+ housing when there is a disability involved?  Maybe, so the wise landlord will explore this idea with counsel learned in fair housing before a blanket denial of housing opportunity is given in such a situation.


Most landlords know that while their pet rules (dog and/or cat restrictions, size limits, pet fees) are legal, that they must often waive such rules when the animal involved is a service animal.  This is the required reasonable accommodation as to the needs of a person with a disability to be better able to enjoy the use of their apartment and the community as a whole.  But what about breed restrictions?  A court in California has said it is appropriate for a landlord to deny a pit bull as a service animal.  Could this possibly mean that a landlord may deny a request to have a service animal that is a pit bull, Rottweiler, or Doberman Pinscher if the community pet rules exclude these breeds?  Quite possibly!  Remember that the fair housing act requires reasonable accommodation of disabilities, not that the landlord agree to every such request.  What might make the request for a pit bull, Rottweiler or Doberman Pinscher service animal unreasonable?  Statistics (as were used in the California case) such that pit bulls killed or injured more people in the US than any other breed except Rottweilers.  Local or state law declaring certain breeds as dangerous (such as in Maryland) or imposing a duty on landlord to protect tenants from dangerous dogs (as in California).  Refusal of the landlord's insurer to provide coverage for acts of certain dog breeds.  In other words, the landlord should have a reason that is not arbitrary but rather that is based on outside input.  And the landlord should offer (as did the wise landlord in the California case) the person with a disability the opportunity to have a service animal that is one of "gentler reputation."¯ 


Although it is not a new topic, there are always new cases to be found which deal with rules that landlords establish for (or against, as the case may be!) children at the community.  A recent California case illustrates this principle well, as a landlord found that his rule prohibiting children from playing in the courtyard would be costly"¦$40,000 to be specific.  Could this possibly mean that a landlord with rules targeted to children "(children may not"¦"¯) or denying children ("no children"¦"¯) could get in fair housing trouble based just on those rules?  Absolutely!  With the limited exception of properly crafted rules related to swimming pools, exercise rooms, and special equipment such as saunas or tanning booths, no rules should target children or deny children.  The wise landlord will review community rules to be sure that such targeting or denial has not in fact been included, and eliminate or amend those rules accordingly.  It is prudent that landlords who acquire communities to own or manage review the existing rules which have become theirs upon the purchase or management contract . Then any improper should rules be eliminated or amended and the residents told about these changes.


While federal law has seven protected classes (race, color, sex, national origin, religion, disability and familial status) many states and many local governments have added other groups to the list.  Once such addition has been to make source of income a protected class.  That means that all lawful forms of income must be considered in evaluating a prospect's ability to pay the rent"¦not just wages, but alimony, child support, interest and investment income, and perhaps public assistance, including Section 8.  Could this possibly mean that a landlord must take otherwise qualified prospects who bring with them Section 8 vouchers?  In some areas of the country, that answer is yes!  For example, New Jersey requires that landlords accept Section 8 vouchers because this is a source of income.  And it appears likely that all of California will be going in this direction by determining that the California Fair Employment and Housing Act does prohibit Section 8 discrimination.  All landlords should find out what the position of their state or local governments is on this topic in order not to find themselves embroiled in a charge or lawsuit involving source of income discrimination.


Sexual harassment of residents is a fair housing violation.  There are numerous cases in which landlords ask for (and sometimes actually receive!) sexual favors in exchange for rent concessions or maintenance service, or otherwise make female residents feel threatened.  While often these cases are perpetuated by the smaller landlords, at least one case involved a larger property management company and a cost of $1.5 million.  Some creative fair housing lawyers and advocates are now going beyond the fair housing arena in such matters.  One idea is to charge such landlords under laws related to prostitution, arguing that requiring sex for rent or other benefits is in effect a coercion into prostitution.  And fair housing lawyers have helped see to landlords being charged with criminal battery, as well as to a successful conviction of a landlord for violation of sexual predator laws. Could this possibly mean that a landlord could go to jail for sexual harassment of residents?  Yes, it does!  And this applies to the maintenance professionals as well.  The wise landlord will make sure that maintenance staff has been trained and that there are written policies and procedures in place as to what conduct while interacting with residents is (and isn't) allowed.


Fair housing cases based on sex (gender), one of the federally protected classes, often involve children and their bedroom arrangements in apartments.  Some landlords seem to think that it is their business as to whether children of opposite sexes are occupying the same bedroom (it isn't their business) and then deny rental opportunity to families when the arrangement does not meet with their approval.  However, a recent case in California offered a new twist on gender discrimination when a couple was denied an apartment because the woman had an ankle tattoo.  The issue wasn't the tattoo, but the fact that it was the female who was wearing it.  In fact, the landlord said (on tape!) that "When men wear tattoos, it's different, but when women wear them, it's an indication of not so high standards per se."¯  The total cost to the landlord in this case was $30,990, certainly a tidy sum.  Could this possibly mean that landlords should not take into account factors about prospects, applicants or residents that have no bearing on their rental history or ability to pay rent?"¦That is, actually, just what fair housing is all about!


"Fair Housing Focus"¯ is written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.   The information contained in this article is not to be considered legal advice, and the author and FRM strongly recommend that you consult with you own counsel as to any fair housing questions or problems you may have.  This article originally appeared in the April 2003 issue of Units, the magazine of the National Apartment Association.



June 2003


 From the Landlord and Maintenance Perspective



     Fair housing and sexual harassment?  Do they really have anything to do with one another?  Absolutely they do, and the courts continue to expand on the connection.  


Housing law recognizes two types of sexual harassment claims:

  •         a "conditioned tenancy"¯ or "quid pro quo"¯ claim which in non-legalese means making a sexual demand on a resident in order for that resident to get needed maintenance on the apartment, to get a rent concession, or to avoid an eviction; and

  •         a "hostile environment"¯ claim, which can give rise to claims concerning the psychological well-being of a resident who can demonstrate such a situation.


    Furthermore, fair housing law has been broadly applied to define sexual harassment as a violation of the Fair Housing Act prohibition against sex discrimination.  And, of course, the FHA provides for significant financial punishment and penalties for violations.  So in theory, sexual harassment within the context of the landlord/ tenant relationship can be financially costly to the landlord.


    And if the fear of losing vast sums of money is not a motivating factor, what about jail time?   Some creative lawyers and advocates are now going beyond the fair housing arena.  One idea is to charge landlords under laws related to prostitution.  How?  With the argument that requiring sex for rent or other benefits is in effect a coercion into prostitution.  And some fair housing lawyers have worked to have landlords charged with criminal battery, as well as for violations of sexual predator laws.  In fact, one landlord was successfully convicted of the latter.


    Now, one might think that perhaps this is an issue with the "smaller"¯ landlords, those that we refer to as "mom-and-pop"¯ owners and landlords, and sometimes that has been the case.  Just look at what some residents have been subjected to:


  •         a wife and husband rented a house under the Section 8 program; the wife was allegedly told that if she wanted to keep the rental, she would have to have sex with her landlord once a month; and the landlord supposedly threatened to shoot the husband when he complained


  •         a landlord went to a resident's apartment to clean spots on the rug; as he left he placed his hand under her shirt, fondled her breast, and attempted to kiss her; the resident rejected these "advances"¯ and was subsequently evicted; these liberties cost the landlord more than $36,000


  •         similar dollars were spent by yet another landlord who began calling one of his residents, asking her out, and coming to her apartment at all hours day or night; he went as far as to enter her bedroom while she was asleep and threaten to change her locks if she did not do what he wanted; after she filed complaints, he removed her front door, turned off her heat and hot water and threatened to blow up the building with her in it


    But larger and therefore supposedly more sophisticated landlords have also engaged in wanton and improper behavior, including one in California.  In that case 15 single women (and 25 children) were verbally and physically harassed by a resident manager who asked for sexual favors, grabbed their breasts, entered their apartments in the middle of the night, and tampered with their mail.  The well-organized women with documentation in hand went to the property owners and were ignored.  They were not, however, ignored by the legal system, as their settlement was for $1.65 million in a case where the defendants included the resident manager, the property owners, the management company, the president of the company, and a general partner.


    No one in your organization should abuse the power that they have over residents.  You should have a sexual harassment policy in place, and then you should train all of your staff on a regular basis.  You should respond to even the merest hint of sexual impropriety, investigate, take action as necessary and communicate to all involved, all the while as you document, document, document.


    But wait!  Isn't this article about the "two sides of every coin"¯ as to sexual harassment"¯?  Absolutely!  Because while there are those in our industry who would abuse their positions, the more likely scenario is that your staff will be the victims, not the victimizers.  As an industry we have actually recognized this for our leasing agents and many companies have policies in place to better protect these professionals in the scariest of their job requirements"¦going into empty apartments with strangers.   But fewer companies have addressed the issue for maintenance professionals, notwithstanding the scariest of their job requirements"¦going into occupied apartments when the residents are home.  Perhaps this is because of a double standard"¦more leasing agents are women, while more maintenance professionals are men, and we seem to think that sexual harassment does not bother them (or that they in fact enjoy it!).  But sexual harassment by definition is unwanted attention, and for those willing to listen, our industry's maintenance professionals have stories to tell and ideas to share about how their workplace can be made safer.


    So, with a tip of the hat to all of those maintenance professionals who opened the eyes of  this author and shared their stories, here are the ideas that they have on this very topic.


  •          Consider a policy encouraging and allowing maintenance professionals the opportunity to leave a unit at any time that they believe the situation is inappropriate.  If a resident is making comments or making gestures or touching,  or if the environment itself is threatening (hard core porn video being played, as a real-life example), no employee should have to stay and take it.

  •          In return, the maintenance employee should be required to immediately notify management of the scenario and advise management that he (or she!) has left the unit and why.

  •          Respond to the input from your maintenance professionals that they are uncomfortable with a particular resident, and either send someone else to complete work orders, or send someone to accompany your employee.

  •          Insist that no maintenance professional will ever be in an occupied unit unless there is a written work order (emergencies excepted"¦fire and flood!).  If a resident entices your employee into the unit and the employee does not respond as hoped for, that resident is likely to contact management and accuse the employee of wrongdoing.  Without a written work order, your employee could be in a most dangerous situation.

  •          Make it clear to residents and maintenance professionals alike that unless there is an emergency (fire or flood), no maintenance professional will be alone in the unit with someone's minor child.  To require otherwise is potentially to have your employee's professional and personal life ruined.


    A wise landlord will consider these ideas and develop a written policy to incorporate them.  Why?  Well, actually, there are three reasons.  First, it is the right thing to do, is it not?  Second, if the first reason doesn't motivate you, then how about this"¦your failure to protect your employees from sexual harassment (or worse, to expect them to take it) can result in your being sued by your own employees!  And finally, industry surveys consistently show that your number one resident retention tool is your professional maintenance staff.  And isn't it just good business to protect your assets?


    "Fair Housing Focus"¯ is written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.  The information contained in the article is not to be considered legal advice, and the author and FRM strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have."¯




    January 2004

    "Take the Time or DISCOVER the Time"¯


    You know the drill:  Fair Housing law is about the significant federal civil rights protections afforded to prospects, applicants and residents (including their guests) at apartment communities.  Landlords cannot treat one person differently than another based on that person's race, color, religion, sex (gender), national origin or disability, or because that person has a child under the age of 18 living with him (familial status).  And depending on where the apartment community is located, that core list of protections may also include prohibitions on treating people differently because of age, marital status, sexual orientation, personal appearance, Section 8 vouchers, and so on.  Everyone (from staff level to upper management and owners) who participates in unlawful discrimination (or who allows this to happen) is potentially liable, and the costs can be very high.  How high is "high"¯?  There have been jury verdicts in fair housing cases involving landlord discrimination that have been in the millions of dollars with more than $1,000,000 in punitive damages.


    That being said, those who teach Fair Housing law to the apartment industry know the drill as well.  You tell us:

  •          "We don't have the time to send everyone to training."¯

  •          "Our upper management doesn't have the time to attend the training with their staffs."¯

  •          "We can't take the time to close our office so that we can attend training."¯

  •          "Our maintenance staff cannot take the time away from their jobs to attend training."¯

  •          "Mondays and Fridays are not a good time for our people to attend training."¯

  •          "The first week of the month is not a good time for us."¯

  •          "The last week of the month is not a good time for us."¯


    So, while many of you know what fair housing is about, and many of you know the monetary impact of fair housing discrimination, it seems as if perhaps you do not understand the time that is involved in dealing with a fair housing claim, no matter if it comes through the administrative process or through a lawsuit.  And now you are thinking, "oh, it won't take that much of our time because our lawyer or insurance company will handle this for us."¯  But while you may have a crackerjack lawyer or the best insurance policy in the world, and even if you have done everything absolutely right, you will still have the challenge of gathering the information that is relevant to the issues that have been raised.  This process is called "discovery"¯.  Early on in the claim or lawsuit you are likely to be compelled to disclose facts and provide information within your custody and control.  While your lawyer or insurance company will know what to do with those facts and that information, it is you that will have to assemble them.  And that will take you some time.  And how much time might that be?  Well, guess what?  This author is not going to tell you!  Instead, this author will share with you just some of the discovery requests to which a landlord well-known in the apartment industry was required to respond when he was sued for violating fair housing laws.  Look over these requests, think about the number of apartments, residents, and employees you may have, consider the record-keeping that you have within your company, and you decide how much time it might take you to put this information together.


    1. A complete copy of all tenant files for each tenant residing at the community for the past 3 years.
    2. A complete copy of all move-out files for each tenant who vacated the community in the past 3 years, including last known addresses for all such tenants.
    3. All eviction files for the past 3 years.
    4. All documents from the past 3 years that describe the job duties of all employees, including employee handbooks, manuals, rules, and procedural guidelines.
    5. All documents relating to all employees in the past 3 years, including training materials, job performance reviews, disciplinary actions, reprimands, pay raises, employment contracts and complaints.
    6. All documents showing the last known address, telephone number and the SSN for all former employees, including W-2 and 1099 tax forms.
    7. All documents relating to the Plaintiffs in the action, including notes, memos, correspondence, leases, applications, notices, warnings, phone messages, rental receipts, etc.
    8. All documents relating to any housing complaint ever filed against the Defendants.
    9. All documents related to training, guidance or instruction regarding compliance with fair housing laws that was provided to any person employed at the community for the past 3 years.
    10. All documents relating to the ownership interest in the community in the past 3 years.
    11. A copy of net worth statements, loan and credit applications prepared in the past 2 years.
    12. A copy of any appraisal of business, personal or real property conducted in the past 2 years.
    13. A copy of all year-end statements for all accounts (savings, checking, annuities, or mutual, stock or bond funds) for the past 2 years.
    14. A copy of all year-end statements for all loans or indebtedness for the past 2 years, including mortgages, car and boat loans, and tax liens.
    15. All reports of an operational nature, including financial reports or statements, maintenance reports, vacancy reports,  guest logs, incident reports, etc.
    16. All documents that refer to the protected class of any tenant or prospect for the past 3 years, including applications, notes, memos, correspondence, diaries, appointment books or calendars.
    17. All insurance agreements under which an insurance agreement may be liable to satisfy some or all of a judgment that might be entered in the action.


    Now, keep in mind that these are just some of the discovery requests for production of documents in this particular lawsuit.  And, of course, your crackerjack lawyer will no doubt make some really good arguments about why you shouldn't have to show all this documentation to anyone. But, in the meantime, you will have to find the time and take the time to locate, copy, organize and assemble this information.  So, think about how much time this might be, and weigh it against the time invested in all of your employees (and upper management as well) attending fair housing training that just might give them the information and tools to avoid the scenario that will result in a complaint or lawsuit in the first place!  You may actually discover that even if you prevail in the legal arena, that the discovery process took way too much of your time!


    "Fair Housing Focus"¯ in written by Nadeen Green, Senior Counsel with For Rent MagazineĀ®.  The information contained in this article is not to be considered legal advice, and the author and FRM strongly suggest that you consult with your own counsel as to any fair housing questions or problems you may have.


    Trends in Fair Housing

    For those of us who teach fair housing or write articles on this important industry topic, the neat thing is that there is never a shortage of topics to discuss or information that we can share. For those of us who teach fair housing or write articles on this important industry topic, the sad thing is that there is never a shortage of topics to discuss or information that we can share. Some of we fair housing teachers/writers joke amongst ourselves that we will never find ourselves out of a job. But you might find yourself out of a job (and relieved of some of your money and assets, too) if you do not keep up with the emerging trends in fair housing today. Let's explore some of these:

    1. Smoking: As of January 2008 the American Nonsmokers Rights Foundation reported that 2,671 municipalities in the United States had restricted to some extent where smoking is allowed. An example is Calabasas City, California, where by January 2012, 80% of all apartments must be designated as non-smoking. "Unfair - discriminatory - unequal treatment"¯ may be the chant of smokers (in their often raspy voices) and they are right! It might be unfair; it is certainly discriminatory and unequal treatment. But it is not a violation of civil rights law/fair housing, because smokers have no standing in any protected class. So smoking restrictions (forbidding smoking, segregating smokers) do not present fair housing issues, and even if there is no governing ordinance, the trend is likely to be that smoking will become a cause for eviction under many leases in the future. Quite simply, there is no "right to smoke"¯.

    2. Victims of Domestic Abuse: Many landlords will evict residents if there is a "scene"¯, if there is damage to the apartment, or if the police are called out to the apartment on one or multiple occasions. In fact, these scenarios will often rise to the level of a breach of the lease. But some case law and the Violence Against Women Act (VAWA) may mean that an eviction is not acceptable landlord action. Men can be and are abused by their female domestic partners (wives and significant others), but the statistical reality is that most victims of domestic abuse are women. Since gender (sex) is a federally protected class, this has become a topic with fair housing overtones. So what is going on in this area?

    A landlord in Denver was sued for not allowing a woman who was raped, beaten and stabbed by her ex-boyfriend in her apartment to relocate to a different community. While the landlord believes there was no legal basis for the alleged discrimination claim, the landlord did agree to settle for $60,000.

    Illinois enacted the Safe Homes Act effective January 1, 2007. This allows victims of domestic and sexual violence to change the locks on their apartments on an emergency basis and to break their leases if they believe it necessary for their personal safety.

    Owners who participate in the Section 8 program are prohibited under the VAWA from evicting domestic violence victims because of such criminal activity committed by a member of the victim's household.

    Ponder the words of Kary Moss, executive director of the ACLU in Michigan (which filed suit against a Detroit landlord for evicting a woman whose ex-boyfriend trashed her apartment while she was not home because this was a failure to "properly supervise guests"¯): "All too often women are victimized twice - first by an abuser an again by a landlord."¯ And after pondering those words, recognize that another industry trend is likely to be further expansion of these types of protections.

    3. Criminal Background Issues: Martha Stewart would not be allowed to rent at many apartment communities today. She could likely afford the rent, she is not a risk to others (annoying, perhaps, but not a risk), and arguably her apartment and the common elements might look more lovely if she could move in. And it does not seem to matter that she has, under our justice system, paid her debt to society through her imprisonment and should be able to resume her life. Now, Ms. Stewart can probably buy an apartment community and then change the rules to suit her, but instead, perhaps Ms. Stewart should consider renting in Madison, WI or the cities of Urbana and Champagne, IL where some protections are in place for the protection of felons. Charges may be filed for unlawful discrimination in housing due to a prior arrest record or prior conviction record under certain circumstances. And the Department of Housing and Urban Development has established some rules at the federal level as to HUD-funded housing. While some crimes can result in a life time ban (producing methamphetamines on the premises; being a registered sex offender as examples), other offenses (such as a drug-related eviction) result in a 3 year ban from such housing. And that ban can be lifted early if someone completes certified drug or alcohol counseling. HUD and three modest-sized cities perhaps do not a trend make, but remember that when an entire group of people is denied housing, our government often does step in to protect them.

    4. Transgender Persons: A number of States now have legislation that prohibits gender-identity and transgender discrimination in housing, including California, Hawaii, Illinois, Maine, Minnesota, New Mexico, New Jersey and Rhode Island, as well as the District of Columbia and some cities such as Lexington, Kentucky and Boulder, Colorado. These laws represent a major civil rights victory for the transgender community which has often been denied housing or harassed when housing is provided. To paraphrase Mara Keisling, executive director of the National Center for Transgender Equality, "These laws make it possible for transgender people to show that the characteristics that help us transition - focus, courage and determination - are great assets"¦give us a chance."¯

    5. Pit Bulls and Rottweilers: Even those landlords who do not ban pets completely at their communities will often ban certain breeds of dogs as part of their pet policies. It is not unusual to find pit bulls, Rottweilers, Chows, and other "aggressive breeds"¯ (including mixed breeds related to these) on the restricted list. Weight limits for pets will also, by their very definition, often result in these aggressive breeds being excluded, since most are medium to large in size. (We have not yet seen the "Mini-Pitty"¯ toy pit bull.) Because some insurance policies (homeowner, renter and landlord policies) may exclude these dogs from liability coverage, landlords have thought themselves to be on solid ground when not accepting aggressive dogs as service animals (for those people with disabilities) because it would be unreasonable as an accommodation for the landlord to take on an uninsured liability. However, the Fair Housing Agencies of Washington State have taken the position that the landlord has a duty to ask the insurance company to evaluate the animal in question and if there is no evidence of danger, provide coverage in that situation. The Agencies go on to suggest that the landlord could file a fair housing complaint against its insurer if such a reasonable accommodation is not so made. There was a case filed along these lines in the Mid-Atlantic area; that case was ultimately dismissed without a determination as the Plaintiff could not be located, so we don't know what the result from this case would have been, or if a trend might have been started. This is certainly a "stay-tuned"¯ area of fair housing.

    6. Cultural Clashes: Somalis often use floor-to-ceiling drapes which can affect the baseboard heating systems and lead to rotting window sills. The Hmong cook in a style that generates a lot of steam, which can result in mold in kitchens. The potential existed for these scenarios to have resulted in conflict and possible a fair housing dispute. But with some open-minded foresight and networking, landlords facing these particular issues were able to resolve them. (Teaching about stove vents and compromising on drapes that stop short just above the baseboards were solutions) When a landlord rents to people of various diversities (ethnic, religious and the like), fair housing law imposes no duty on the landlord to learn about those people or to accommodate their customs or beliefs. But good business and risk management would suggest that the wise landlord will learn enough to make the rental experience manageable for all. So, if a particular population is becoming part of a landlord's demographic, then a self-initiated dialogue with a Chamber of Commerce, association, organization, religious group or the like just might help dispel myths, resolve misunderstandings, and create residents who clearly understand what it takes to be successful. Successful residents make the life of a landlord so much more enjoyable.

    7. Limited English Proficiency: This issue is a stay-tuned, up-in-the air issue. As of this writing, the National Multi Housing Council and the National Apartment Association have sued HUD over HUD's LEP guidelines based on a number of legal and practical reasons. The wheels of justice turn ever-so-slowly, so there is no clarity on what program-based housing is required to do to accommodate those who have language other than English or only a limited ability to communicate in English.

    8. Source of Income: In past years, "source of income"¯ has become an oft seen State or local protected class. In other words, as long as a prospect brings the right amount of money to the table (generally meaning enough money for market rate communities, or not too much money for affordable housing communities), all legal and verifiable income (wages, investment earnings, pensions, alimony, child support, welfare, etc.) should be counted. This has meant that in some areas landlords must accept a Section 8 voucher (and the resident that holds it) if the resident otherwise qualifies for the housing. "Sorry, we don't take Section 8"¯ is no longer a legal statement for some landlords.

    There is plenty of the "same old - same old"¯ in our industry. Certain landlords continue to discriminate based on race, color, national origin, or because people have children or disabilities. The various fair housing protections have become law over time because landlords didn't want "them"¯ - whomever "them"¯ might be. Some landlords continue to restrict housing and its amenities to the old "them"¯ and now the new "them"¯. And when landlords do that, we will continue to have new protections put in place through State, local and perhaps even federal fair housing laws. That is a trend that should be unnecessary!

    This Fair Housing Focus article was written by Nadeen Green, Senior Counsel with For Rent Media Solutionsā„¢. The information contained in this article is not to be considered legal advice, and the author and FRMS strongly recommend that you consult with your own counsel as to any fair housing questions or problems you may have.

    Law Offices of Heist, Weisse & Wolk, P.A.
    Phone: 1-800-253-8428 Fax: 1-800-367-9038

    Serving Florida's Property Managers with main office in Fort Myers Beach. Available by appointment in Orlando and Clearwater

    |     Home Page     |     Firm Profile     |     Attorney Profiles     |     General Services     |     Apartment Communities     |     Residential Managers     |     Apartment Communities     |     Residential Managers     |     Homeowners/Investors     |     Eviction Q & A     |     Legal Articles     |     Training/Events     |     Contact Us     |