Credit Screening from a Fair Housing Perspective

Credit Screening
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Guest Blogger:  Jo Becker, Education/Outreach Specialist, Fair Housing Council of Oregon

It is a common practice for housing providers to screen applicants based on credit score and credit history. From a fair housing perspective, providers can decide how to set their credit criteria as long as they apply it consistently regardless of the protected class status of the applicant.

Recently, I receive a call from a landlord who wanted to know how he could apply an exception to the FICO score requirement he has without running afoul of fair housing laws. He wanted to make an exception if a low credit rating is tied to high medical bills2.  This is a generous (and, frankly, realistic) consideration, given that the number one cause of bankruptcies in this country are due to unpaid medical bills, outpacing those caused by credit-card bills or unpaid mortgages, according to an CNBC article (http://www.cnbc.com/id/100840148).  Reportedly, having health insurance doesn’t buffer many from such financial hardship.

If housing providers decide to have exceptions to their screening criteria, the policy includes an explanation of when exceptions would be made.  A common exception is for applicants with screening barriers who have completed an approved tenant education program such as Rent Well, Second Chance, or Moving Forward.  So the gentleman who called me may require a FICO score of “X” as a general rule, but he could have a policy explaining he would make an exception if there is documentation to verify the lower score was caused by medical bills2. Of course, he would need to make that exception consistently, regardless of protected class.

One area of screening that is confusing to some housing providers is how to screen an applicant without a Social Security number.  First of all, it’s important to know that fair housing protections apply to everyone in the US, regardless of immigration status (for more on this read FHCO’s previous article on the matter at http://www.fhco.org/news/read-on?view=category&id=81).  A policy requiring Social Security numbers in all cases probably has a disparate impact on immigrants and falls under the “national origin” protected class under fair housing law.

You should know that a Social Security number isn’t the only way that credit bureaus identify us. The bureaus use personal information including full name, date of birth, and addresses, to compile individual credit reports. While, in some cases, having a Social Security number may increase the accuracy of the bureau’s matching process, it is not necessarily essential in running a credit check.

FHCO participated in a work group convened by the Credit Builders Alliance due to growing concerns from both housing providers and consumers about credit screening issues.  One of the products that came out of this work group is a Tip Sheet on Building Credit Without a Social Security number which can be found at the Alliance’s website at http://creditbuildersalliance.org/sites/default/files/Building%20Credit%20without%20a%20SSN.pdf. The Tip Sheet addresses issues of concern to both housing consumers and providers, including using consistent information when interacting with credit bureaus and properly transferring credit history to a new Social Security number.  It contains a list of best practices for consumers and businesses, as well as explaining the use of other identifying numbers, such as the ITIN, and how they can be used to pull a credit report?

Do take a close look at the Tip Sheet on the Credit Builders Alliance site and remember, too, that FHCO offers a list of suggested alternative documents that can be used to verify identity, bill payment history, and other relevant screening criteria. The list has been recently updated and is posted at http://www.fhco.org/discrimination-in-oregon/protected-classes/national-origin/alternative-suggested-documents.

This article brought to you by the Fair Housing Council; a civil rights organization.  All rights reserved © 2015. Write jbecker@FHCO.org to reprint articles or inquire about ongoing content for your own publication.

To learn more…  Learn more about fair housing and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about this article?  ‘Interested in articles for your company or trade association?  Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?  Visit www.FHCO.org/learning-resources/trainings to learn about the trainings we offer for companies and groups.

[1] Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.

2  This example was this particular landlord’s preference to offer; however, this is one example of a reasonable accommodation request an individual with a disability might request of any housing provider.  Regardless of screening criteria, all housing providers are always required to consider reasonable accommodation and modifications requests.  To learn how reasonableness is determined and learn more about disability-related protections visit http://www.fhco.org/learning-resources/downloads/category/3-guides?download=193:resource-guide-2015.

Section 8’s New Era

Section 8 protection:  Oregon enters a new era in housing opportunity
By Guest Blogger:  Elizabeth Gray, FHCO Intake Specialist, Fair Housing Council of Oregon

It’s been several months since Oregon fair housing law1 was amended to protect housing consumers from discrimination based on Section 8 voucher or other rental assistance income (House Bill 2639 and statute at ORS 659A.421).

Source of income has long been protected in Oregon.  However, when the state legislation was passed, Section 8 vouchers were specifically lobbied out as an exception.  With this exception removed, effective July 1st, 1014, all legally obtained sources of income are protected across the state.

In practical terms, this means that a landlord cannot refuse to rent to an applicant, or treat an applicant or tenant differently, because the applicant is using a Section 8 voucher or other form of rental housing assistance.  Nor can landlords advertise “no Section 8” or “No HUD”.

In the words of Oregon House Speaker Tina Kotek (D-Portland), the expanded protection “‘creates that door of opportunity’ for voucher-holders to apply for housing close to work, kids’ schools and in thriving neighborhoods”. (Oregonian, July 8th, 2013)

Our office has kept very busy over the past many months providing technical assistance to housing providers regarding the law’s implementation as well as advocating for consumers who have encountered resistance to their use of Section 8 vouchers and other rental subsidies.

As a snapshot, we have:

  • Sent informational letters to landlords that have posted “No Section 8” ads on Craigslist
  • Advocated for tenants having issues leasing up with a new landlord, or current landlords that do not want to accept the voucher when a current tenant receives one
  • Tested properties brought to our attention by complainants

How to Calculate 2-3x The Rent

Over these past months, one question that’s been raised by both landlords and tenants is how to calculate whether or not a prospective renter qualifies for the rental based on their income. The position that our office is taking is that the landlord should only consider the amount that the tenant actually pays, not the full advertised rent.

For example, consider if a stated rent amount is 1200 and the landlord requires a renter to have 3 times the rent in income. A non-Section 8 tenant could be required to show income of 3600 dollars per month, but if a Section 8 (or other subsidy) tenant would pay 300 dollars in rent and the local housing authority would pay 900, then the tenant should only be required to show income of 900 dollars per month.

You can find a more detailed discussion of this issue (and many others) in Question 7 of the Frequently Asked Questions referenced below, a wonderful resource for both housing providers and consumers that was compiled by attorney and FHCO board member John van Landingham of the Lane County Law and Advocacy Center.  The document is comprehensive and evolving, and created in partnership with landlord trade groups, other legal aid offices and colleagues, as well as representatives from housing authorities around the state.  View the full PDF at www.FHCO.org/pdfs/Section%208%20Source%20of%20Income%20FAQ%20clean%20copy%2010262014.pdf

This article brought to you by the Fair Housing Council; a civil rights organization.  All rights reserved © 2015. Write jbecker@FHCO.org to reprint articles or inquire about ongoing content for your own publication.

To learn more…  Learn more about fair housing and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about this article?  ‘Interested in articles for your company or trade association?  Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?  Visit www.FHCO.org/learning-resources/trainings to learn about the trainings we offer for companies and groups.

[1] Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.

 

Angie’s List & the Lead Paint Discussion

Angie’s list shops the market; finds lead-paint misinformation & violations

By Guest blogger:
Jo Becker, Education/Outreach Specialist, Fair Housing Council of Oregon

Last fall angieslist.com published a very interesting article for their subscribers entitled “LEAD:  Still Lurking.”  This month I’d like to share some salient points from that article with you.

What follows is portions of the Angie’s List article by Paul Pogue with additional reporting by Kaley Belakovich, Oseye Boyd, James Figy, Staci Giordullo, Garrett Kelly, Lacey Nix, Michael Schroeder, Stephanie Snay, and Cynthia Wilson.

Angie’s List takes lead paint seriously.  That’s why they decided to conduct a “secret shopper” program this year to test contractors and hardware stores about their knowledge of lead safety.

It’s been four years since the Environmental Protection Agency (EPA) implemented its Renovation, Repair, and Painting (RRP).  Did awareness about the dangers of lead increase?  Maybe.  Are contractors passing along good advice about lead safety?  Not always.

While interviewing candidates for the project, the last thing a consumer expects to hear is: “It’s just a bunch of B.S., really.”  However, that’s exactly what one contractor told one of Angie’s List reporters.

Angie’s List contacted 150 randomly selected painters, remodelers and window contractors, and 50 hardware stores, in 10 major cities telling them a 2-year-old child’s room in a 1920s house was being renovated.  What, they asked, were the proper methods to strip paint or replace windows?  Nearly 11% of those contractors, and 47% of hardware stores, gave poor advice.  Here are a few examples:

  • “Lead only harms you if you eat it.”
  • “Just close the door, wear a mask.
  • “You might just be able to throw [lead paint debris] in the trash.”
  • “The whole lead thing is very overblown unless your kids are chewing or gnawing on the windowsills.”

While lead-safety awareness has increased, homeowners can’t rely on contractors and their local hardware store to know their stuff where lead paint is concerned.  Your best defense?  Arm yourself with information.

Sadly, Angie’s List staff found that a significant number of those renovation contractors — nearly 11 percent — offered consumers bad advice when it comes to lead safety. But even more disconcerting, nearly 32 percent of those contractors told us they did not have the required EPA lead-safety certification.

Every lead-painted surface contains invisible poison, easily unleashed by scraping, sanding, or melting the surface – all common techniques in renovations.  Lawmakers banned lead-based paint in 1978 but contractors working in older properties operated with very little regulation until the EPA instituted the RRP Rule in 2010.

Nationwide, about 40 percent of the housing stock remains at risk for lead paint, according to the EPA. Angie’s List estimates that number may be higher for its members as 46 percent of them report living in a pre-1978 home.

According Wendy Cleland-Hamnett, director of the EPA’s office of pollution prevention and toxics, “Our certified firms mentioned that they sometimes have to compete with firms underbidding jobs because that firm is uncertified and is willing to work without lead-safe work practices,” she says. “Those firms may be skirting other requirements as well.”

In the past year, Cleland-Hamnett says the EPA stepped up its enforcement efforts against noncompliant firms or individuals.

Going an additional step further to protect their members, Angie’s List excludes any contractor who performs this type of work and fails to provide proof of EPA certification from this service category and keyword searches.  In addition, the site includes a notice on the company’s profile to alert their members of the issue.

“Correct practices are very easy to spot,” according to Ron Peik, owner of a highly rated lead-paint remediation company in Mass. “You should be seeing lots of plastic being set up to contain the area, literally taped down so air doesn’t get in, and windows, ducts and doorways sealed off. Homeowners really should insist on looking at the containment before actual work is executed.”

The most important thing owners of pre-1978 homes can do is hire certified contractors on jobs that disturb lead paint, and verify that the contractor follows the law.

Angie’s List also offers a Lead-Safe Practices Checklist to protect yourself and your property.  You can find it at www.angieslist.com/articles/lead-safe-practices-checklist.htm and additional resources at www.angieslist.com/articles/lead-paint-safety-what-you-need-know.htm.

For help with your own, specific lead questions, call the free Leadline at 503/988-4000.

A reminder that although lead poisoning is especially dangerous for kids, the fear of lead poisoning or liability does not give housing providers the right to deny or discourage families with children away from pre-1978 using.  Familial status is a protected class under federal fair housing law[1] and doing anything to deny or discourage otherwise qualified families is illegal.  Visit www.FHCO.org for more information on this topic.

This article brought to you by the Fair Housing Council; a civil rights organization.  All rights reserved © 2015. Write jbecker@FHCO.org to reprint articles or inquire about ongoing content for your own publication.

To learn more…  Learn more about fair housing and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about this article?  ‘Interested in articles for your company or trade association?  Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?  Visit www.FHCO.org/pdfs/classlist.pdf

[1]   Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Additional protected classes have been added in particular geographic areas; visit www.FHCO.org for more information.

Options for Tenant Screening w/o an SSN

Screening without Social Security Numbers: There are Options!
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Guest Blogger:  Jo Becker
Education/Outreach Specialist
Fair Housing Council of Oregon

FHCO often receives questions from both housing consumers and housing providers about tenant screening for applicants who do not have a Social Security number (SSN).  With President Obama’s immigration action, approximately 4 million U.S. residents who are currently undocumented will have the opportunity to apply for work permits and SSNs. The campaign around Measure 88 (the “driver card” measure) also brought discussions of immigration in Oregon to the forefront last this fall.

Whatever your personal political position is on these recent events, the fact remains that many Oregon housing seekers do not have an SSN, and many will still not even when the President’s programs are activated.  The fact is that the Fair Housing Act and Oregon anti-discrimination law[1] apply to everyone present in the US, regardless of immigration status.

FHCO recognizes the importance of thorough tenant screening. Did you know that criminal history information can be acquired without an SSN and, of course, current and past landlords can provide rental history and references?  Applicants may be able to provide other information such as proof of “x” number of recent months’ paid utility bills, rent, or other regular monthly bills that can show a pattern of timely payment.

Individuals who do not qualify for an SSN may often have an ITIN (Individual Taxpayer Identification Number). This number allows for reporting to the IRS and in some cases for opening other accounts. After having consulted with screening companies and the credit bureaus, it does not appear that this will allow a credit report to be pulled in the same way that an SSN does.

What we suggest when an applicant has no SSN is to say “show me what you can” rather than a flat “no.”  At that point, your screening company should be able to give you an informed estimate about how much time and money an evaluation could cost.  Costs may vary so shop your screening company.  Once you have a cost estimate, inform the consumer and, if you wish and do so consistently, you may then pass this cost on to them if they want to continue with the application.

NOTE:  This is a deviation from official FHCO opinion in the past that higher costs for manual screening without a SSN should not be passed on to the applicant. At this point there isn’t local or federal case law to provide guidance; however, we feel our current position is a reasonable balance between consumers’ rights and housing providers’ concerns.  Case law has well established that it is inappropriate and illegal for a housing provider to charge someone to have an assistance animal, or a change to a guest policy to have a caregiver visit however many days a week, etc.  With respect to screening a tenant without SSN; however, we are not talking about a disability-related modification / accommodation.

It is still our position that a refusal to review alternative documentation when a SSN is not available will have a negative and disparate impact on individuals whose national origin is not the US, thereby having a disparate impact on that protected class.  Therefore, a policy or practice of not accepting applicants because they do not have a SSN is not appropriate.  That said, we feel that passing on actual additional costs of screening in a situation like this as a legitimate business expense that could be passed on to the applicant.

It should be noted that we never recommend folks (whether they are immigrants or not) lie or use a false identification number.  If applicants provide false information, they risk denial (or eviction) on the basis of having lied on the application.

Technologies are changing, as are bank and lender policies, and it is important to be open to the opportunities that this may present for improved screening of individuals without SSNs.  A presumption that those without a social security number cannot use a bank or get certain loans or credit cards is incorrect.  There are both large national banks and smaller community credit unions that work with these individuals.  Additionally, individuals without a SSN are able to request a copy of their own credit report through Experian (one of three main credit bureaus).  Experian will attempt to use data points such as name, date of birth, current and last addresses, and any transactions with an ITIN, to provide the individual with a report.  The individual can then present this to a prospective landlord who is willing to accept a self-requested report.

Housing providers need to be careful, too, of assumptions about household make-up based on race or national origin.  If a landlord has a problem with residents who do not comply with the rental contract, they should deal with that appropriately under landlord / tenant law.  Landlords should not assume “certain kinds of people” have larger or extended families that will exceed reasonable occupancy policies, or be louder or cause greater damage to the property than other households, etc. and base their rental decisions on such assumptions.  Landlords should, instead, set reasonable occupancy standards (http://www.fhco.org/occupancy.htm) and enforce them equally across all of their units with all applicants and tenants.  Landlords should not presume “those people” (insert any protected class you wish) would necessarily behave inappropriately or violate contract terms.  Enforcement of rules should be consistent, based on the behavior the housing provider is concerned about and, when the rules are violated, the situations should be handled consistently.

We will continue to consult with other fair housing organizations and industry groups to assure we remain confident that our position on non-SSN-screening is reasonable.

If you have questions about a situation you have encountered, please consider us a resource and contact us!   Start on our website at www.FHCO.org/national_origin.htm, as well as www.FHCO.org/hs_provider_info.htm.

 

This article brought to you by the Fair Housing Council; a civil rights organization.  All rights reserved © 2015. Write jbecker@FHCO.org to reprint articles or inquire about ongoing content for your own publication.

To learn more…  Learn more about fair housing and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about this article?  ‘Interested in articles for your company or trade association?  Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?  Visit www.FHCO.org/pdfs/classlist.pdf

[1]   Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.

Fair Housing and Assistance Animals

Assistance Animals 101

Guest Blogger:
Jo Becker, Education/Outreach Specialist,
Fair Housing Council of Oregon
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It doesn’t seem to matter how many articles we write, classes we teach, presentations we give, guidebooks we publish, or videos we make and post, no matter where we are or what we’re doing Fair Housing Council staff always get questions about assistance animals.  Some inquiries can get complicated but, to be honest, many of them are the same fundamental questions.

We offer the following article as both an introduction to those the topic may be new to / refresher for those who are somewhat familiar, as well as a reminder on the differences between the Fair Housing Act (FHA)[1] and the Americans with Disabilities Act (ADA) per the Dept. of Housing and Urban Development (HUD).

A relatively recent document issued by HUD clearly affirms standard fair housing advice on the requirements to accommodate assistance animals in housing under the FHA, which is quite different than ADA requirements.  The 2013 HUD memo., in no uncertain terms, lays out the differences and assures readers that changes in the ADA’s definition of “service animals” has absolutely no affect on assistance animals under the FHA.

Following are a few excerpts from the memo.; the full document can be viewed at https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf.  (Emphases below have been added)

This notice explains certain obligations of housing providers under the Fair Housing Act (FHAct), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Americans with Disabilities Act (ADA) with respect to animals that provide assistance to individuals with disabilities.

The Department of Justice’s (DOT) amendments to its regulations’ for Titles II and III of the ADA limit the definition of “service animal” under the ADA to include only dogs, and further define “service animal” to exclude emotional support animals. This definition, however, does not limit housing providers’ obligations to make reasonable accommodations for assistance animals under the FHAct or Section 504.

Persons with disabilities may request a reasonable accommodation for any assistance animal, including an emotional support animal, under both the FHAct and Section 504.

An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.  Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support.

For purposes of reasonable accommodation requests, neither the FHAct nor Section 504 requires an assistance animal to be individually trained or certified.

While dogs are the most common type of assistance animal, other animals can also be assistance animals.

Housing providers are to evaluate a request for a reasonable accommodation to possess an assistance animal in a dwelling using the general principles applicable to all reasonable accommodation requests. After receiving such a request, the housing provider must consider the following:

  • Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
  • Does the person making the request have a disability-related need for an assistance animal?

Where the answers to questions (1) and (2) are “yes,” the FHAct and Section 504 require the housing provider to modify or provide an exception to a “no pets” rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.  If the answer… is “no,” then the… request may be denied.  <Requests> may also be denied if:

  • the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or
  • the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.

Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals.  For example, while housing providers may require applicants or residents to pay a pet deposit, they may not require applicants and residents to pay a deposit for an assistance animal.  <In addition,> breed, size, and weight limitations may not be applied to an assistance animal.

Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider <or if the need for the assistance animal is not apparent> to submit reliable documentation of a disability and their disability-related need for an assistance animal.  For example, the housing provider may ask persons who are seeking a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.  <NOTE:  Case law tells us that such verification does not necessarily need to come from a medical provider.  In truth, a family member or the individual him/herself may act as the verifier in some situations, though is not particularly common.>

So, what about the ADA?  Do you have obligations under it, as well, as a housing provider?  Maybe…

Certain entities will be subject to both the service animal requirements of the ADA and the reasonable accommodation provisions of the FHAct and/or Section 504. These entities include, but are not limited to, public housing agencies and some places of public accommodation, such as rental offices, shelters, residential homes, some types of multifamily housing, assisted living facilities, and housing at places of education. Covered entities must ensure compliance with all relevant civil rights laws.

The preambles to DOJ’s 2010 Title II and Title III ADA regulations state that public entities or public accommodations that operate housing facilities “may not use the ADA definition [of “service animal”] as a justification for reducing their FHAct obligations.”  <The preamble further indicates that> under the FHAct, “an individual with a disability may have the right to have an animal other than a dog in his or her home if the animal qualifies as a ‘reasonable accommodation’ that is necessary to afford the individual equal opportunity to use and enjoy a dwelling, assuming that the use of the animal does not pose a direct threat.”  In addition,… emotional support animals that do not qualify as service animals under the ADA may “nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the FHAct.” While the preambles expressly mention only the FHAct, the same analysis applies to Section 504.

DOJ’s revised ADA regulations define “service animal” narrowly as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The revised regulations specify that “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” Thus, trained dogs are the only species of animal that may qualify as service animals under the ADA <not the FHA> (there is a separate provision regarding trained miniature horses), and emotional support animals are expressly precluded from qualifying service animals under the ADA <not the FHA>.

The ADA definition of “service animal” applies to state and local government programs, services activities, and facilities and to public accommodations, such as leasing offices, social service center establishments, universities, and other places of education.

<Under the ADA the> animal may not be denied access to the ADA-covered facility unless:

  • the animal is out of control and its handler does not take effective action to control it;
  • the animal is not housebroken (i.e., trained so that, absent illness or accident, the animal controls its waste elimination); or
  • the animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level by a reasonable modification to other policies, practices and procedures. A determination that a service animal poses a direct threat must be based on an individualized assessment of the specific service animal’s actual conduct — not on fears, stereotypes, or generalizations. The service animal must be permitted to accompany the individual with a disability to all areas of the facility where members of the public are normally allowed to go.

<NOTE:  In all ways related to disability-related animals, the FHA is more liberal than the ADA.  If DOJ stipulates the above items for “service animals” under the ADA, than you can be fairly certain that they are – at a minimum – what would be considered reasonable for assistance animals under the FHA.>

In cases where all three statutes apply…. the housing provider should apply the ADA service animal test first. This is because <under the ADA, not the FHA> the covered entity may ask only whether the animal is a service animal that is required because of a disability, and if so, what work or tasks the animal has been trained to perform. If the animal meets the test for “service animal,” the animal must be permitted to accompany the individual with a disability to all areas of the facility where persons are normally allowed to go, unless <see points (1), (2), and (3) above>.  If the animal does not meet the ADA service animal test, then the housing provider must evaluate the request in accordance with the guidance provided in Section I of this notice.  <Note that compliance> with the FHAct and Section 504 does not ensure compliance with the ADA. Similarly, compliance with the ADA’s regulations does not ensure compliance with the FHAct or Section 504… It is the housing provider’s responsibility to know the applicable laws and comply with each of them.

For yet more information on this topic including other memos from HUD, previous FHCO articles, sample accommodation / modification forms, and other guidance visit:

  • FHCO.org/disability.htm,
  • FHCO.org/assistanceanimals.htm,
  • FHCO.org/guidebooks.htm,
  • FHCO.org/forms.htm.

This article brought to you by the Fair Housing Council; a civil rights organization.  All rights reserved © 2015. Write jbecker@FHCO.org to reprint articles or inquire about ongoing content for your own publication.

To learn more…  Learn more about fair housing and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about this article?  ‘Interested in articles for your company or trade association?  Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?  Visit www.FHCO.org/pdfs/classlist.pdf

[1]   Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.

Fair Housing Enforcement: Everything You Ever Wanted To Know

Fair Housing enforcement
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Guest blogger Jo Becker, Education/Outreach Specialist, Fair Housing Council of Oregon

When I’m out in the field teaching fair housing classes I’m often asked what the consequences of a fair housing violation is.  Following is a primer on the subject.  You can get a visual perspective on the process by viewing our Enforcement Flow Chart at www.FHCO.org/pdfs/EnfFlowChart.pdf but following is a more detailed outline.

The federal Fair Housing Act makes any denial of or differential treatment in housing based on the following protected classes illegal:  race, color, national origin, religion, sex, familial status (children) and disability.  Oregon law also prohibits discrimination based on marital status, (legal) source of income (including, now Section 8 and other housing subsidies), and sexual orientation and gender identity.  (Visit FHCO.org for further information on the area you live or own properties.)

It should be noted that one need not intend to discriminate for their words, actions, or advertising to have an illegally discriminatory affect.  That is, affect not intention is the barometer in a fair housing case.

 How is the Fair Housing Act Enforced?

Often the Fair Housing Council of Oregon (FHCO) is the first line of defense. We receive fair housing-related inquiries and complaints from across the state.  Each call is processed and assistance provided whenever and wherever possible.  We offer information and referral to appropriate resources if an inquiry is not related to fair housing.

As a private nonprofit, we serve as a fair housing resource in Oregon but we are not an enforcement agency, per se.  If an inquiry appears to be a bona fide allegation of fair housing discrimination, we assist in whatever way the inquirer desires.  We might help mediate the issue or contact the housing provider to advocate on the individual’s behalf; we may help the victim file a formal complaint or conduct an investigation using witness interviews, testing, etc.

Testing is a nationally recognized and court-tested practice aimed at identifying whether or not illegal housing discrimination has occurred. Both complaint-based and audit testing is done by FHCO.  Testing is used to identify ordinary the business practices (of a company, an individual, etc.) and whether or not these practices constitute a violation of the laws.

Other enforcement-related activities may involve filing a complaint with a regulatory agency; either on our own behalf or in assisting a housing consumer who claims a fair housing violation has been committed against them.  At times, we also file lawsuits with private attorneys.  That said, more than 75% of the bona fide fair housing complaints we receive annually are resolved informally and never make it to the formal complaint process.

 What Happens After a Complaint or Lawsuit is Filed?

Fair housing complaints can be filed with the Dept. of Housing and Urban Development (HUD) or a state agency such as the Bureau of Labor and Industries (BOLI) in Oregon.  A complainant has up to one year from the date of the last alleged incident of illegal discrimination to file a claim.  Alternatively, one may file a suit in court up to two years after the last incident.

If filed with a government agency, that office (HUD or BOLI) will initiate an investigation to determine if there is evidence of illegal discrimination or will attempt to conciliate the complaint with the parties involved.  If conciliation fails, the agency will move to determine whether or not “reasonable cause” exists to believe that fair housing laws have been violated.

If the government agency finds “no reasonable cause,” the complaint is dismissed.  However, if evidence of a violation is found, a hearing will be scheduled before an Administrative Law Judge (ALJ).  If either party elects to proceed with the case in federal court, then either the U.S. Dept. of Justice (DOJ) or the state attorney general will represent the case on behalf of the regulatory body.  The decisions of the ALJ or the federal district court are subject to review by the U.S. Court of Appeals.

If the complainant prevails in the case, s/he may be awarded compensatory damages.  These can include any out-of-pocket costs the complainant spent while obtaining alternative housing and any additional costs, including rent, associated with that housing.  Emotional distress damages for such things as humiliation, mental anguish or other psychological injuries may be levied and are in addition to out-of-pocket losses.

In cases tried before an ALJ, a civil penalty of up to $16,000 may be imposed for a first violation up to $65,000 for a third violation.  If the case is brought by the DOJ, civil penalties can be as high as $100,000.

When heard in federal court, punitive damages may be awarded.  These do not reimburse the plaintiff for losses actually suffered; instead, they punish the wrongdoer.  Punitive damages are awarded only if the plaintiff shows the defendant’s conduct was “willful, wanton, or malicious” specifically motivated by an intent to exclude the plaintiff for illegally discriminatory reasons.

Attorney’s fees may be awarded to the prevailing party.  In addition, courts may issue injunctions if they feel prompt action is necessary to prevent immediate and irreparable harm.

In cases involving illegal discrimination in home mortgage loans or home improvement loans, a suit may be filed under both the Fair Housing Act and / or the Equal Credit Opportunity Act.  In this case, additional agencies may be involved.

If you have questions about fair housing law, please consider us a resource and let us know!  You may want to start on our website where we have not only the Enforcement Flow Chart posted but also an entire page with tons of resource documents and links just for housing providers like yourself.  You can find these resources at http://fhco.org/hs_provider_info.htm.

This article brought to you by the Fair Housing Council; a civil rights organization.  All rights reserved © 2014. Write jbecker@FHCO.org to reprint articles or inquire about ongoing content for your own publication.

To learn more…  Learn more about fair housing and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about this article?  ‘Interested in articles for your company or trade association?  Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?  Visit www.FHCO.org/pdfs/classlist.pdf

 

FAIR HOUSING AND WINDOW FALLS

Guest Blogger:
Jo Becker, Education/Outreach Specialist,
Fair Housing Council
Serving Oregon and SW Washington
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According to Clackamas Fire District #1, about 3,300 children under the age of six fall from windows every year; 70% of them from second or third floor windows. In Oregon, about 50 children between the ages of 0-5 fall from windows annually. The majority of falls occur between May and September when warm weather entices us to open windows for cooling and ventilation.

Such falls can be deadly or lead to lifelong paralysis. In an effort to avoid such horrific tragedies, as well as to avoid liability, many housing providers have taken to advising residents and prospective residents of fall hazards. This, in and of itself, is a good thing; however, there can be fair housing implications.

Twenty years after familial status protection was added to the federal Fair Housing Act (FHA)1, it goes without saying that a landlord, condo association, or other housing provider may not turn away (nor discourage) families with children out of fear of harm to the children. This is true whether that potential perceived harm is the presence of windows on upper floors, lead-based paint, or rickety banisters on the property. It should only ever the family’s choice where and how to raise their children, so long as the household meet legally objective and consistently applied screening criteria and community rules.

Reasonable disclosures are not a bad idea and are, in fact, some times required as is the case with lead-based paint in properties build prior to 1978 (for more information on this visit www.FHCO.org/lead.htm). However, it is important that such disclosures not be targeted to any one protected class. That is to say, only warning families with children about safety issues of window falls and the precautions that can be taken by the household can have a “chilling (or discouraging) effect” and is legally akin to only warning the Muslim households and not the Jewish households, or all of the households in which someone has a disability but none of the rest of the households.

Review your policies and day-to-day procedures to assure you are not targeting children (or any other protected class), either directly or in effect. Where you see legitimate safety concerns, disclosures, disclaimers, warning signs, and having adequate general liability insurance are all appropriate measures to take, so long as these steps don’t single out one protected class, such as children.

Show your care and concern for all of your residents and potential residents by assuring all are well informed and best equipped to live safely on your property for years to come. To that end, following are some window fall safety tips from Clackamas Fire District #1 you may wish to share with all residents:

Set a household rule <note, this for the household to determine, not the housing provider> to open window no more than 4 inches wide. Install a window stop to prevent them from accidentally opening further.
 If you do open windows wider than 4 inches, install window guards with an emergency release device.
 Remember, windows also serve as a secondary means of escape during an emergency. Make sure all windows are still accessible and can open fully without special knowledge or tools.
 Don’t rely on insect screens to prevent a window fall. Screens are to keep bugs out, not people or pets in.
 Keep windows locked and closed when not in use.
 Keep furniture away from windows.
 Establish a household rule about keeping a respectful distance from windows.
 When buying new windows, look for those with built-in 4-inch limiters.

As always, if you have questions about fair housing law, visit our website at www.FHCO.org. There you can find housing provider specific information on the “Housing Providers” page (www.FHCO.org/hs_provider_info.htm). For more information on your responsibilities and the protections surrounding familial status visit www.FHCO.org/families.htm.

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This article brought to you by the Fair Housing Council; a nonprofit serving the state of Oregon and SW Washington. All rights reserved © 2014. Write jbecker@FHCO.org to reprint articles or inquire about ongoing content for your own publication.

To learn more…
Learn more about fair housing and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about this article? ‘Interested in articles for your company or trade association?
Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?
Visit www.FHCO.org/pdfs/classlist.pdf

Federally protected classes under the Fair Housing Act include: race, color, national origin, religion, sex, familial status (children), and disability. Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors. Washington law covers martial status, sexual orientation, and domestic violence survivors, and honorably discharged veterans / military status. Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.

Fair Housing: Occupancy Standards

Guest Blogger:  Jo Becker, Education/Outreach Specialist,
Fair Housing Council
Serving Oregon and SW Washington
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OCCUPANCY STANDARDS 101 FOR HOUSING PROVIDERS

Following is an article by King County Office of Civil Rights.  While written with Washington state laws in mind, it is none-the-less relevant and instructive for housing providers across our service area of Oregon and SW Washington:

Occupancy standards are common in rental housing and are particularly applicable for private and professional landlords.  However, we also, on occasion, see occupancy standards in condo and homeowners’ associations, as well as in manufactured home park settings making the following germane to all kinds of housing providers.

If you have a question about your rights or responsibilities under federal, state, or local fair housing laws, please visit us at www.FHCO.org or call our free Hotline at 800/424-3247 Ext. 2.

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“Have you heard that it’s okay to limit occupancy to two persons per bedroom?  Think again!

The ubiquitous two-per-bedroom occupancy standard is a very general guideline provided by the U.S. Department of Housing and Urban Development – IT IS NOT AN ABSOLUTE!  Fair housing enforcement agencies review a number of factors to determine whether an occupancy standard is overly restrictive.  Establishing a two-per-bedroom standard without making a determination of its reasonableness for the specific unit may not protect you from a finding that the standard is overly restrictive.  <In fact, we here at the FHCO have seen a growing body of case law across the country where housing providers with simplistic, across the board two-per-bedroom policies are losing disparate impact cases.>

When a housing provider limits the number of occupants in a unit, it impacts families with children more severely than families without children.  <It is illegal to deny housing to families with children simply because of the presence of children under 18 in the household under the Fair Housing Act[1] and a occupancy policy that specifies the number of children verses people is a violation of the law.  Restrictive occupancy standards can also have a disproportionate impact on some ethnic groups that, culturally and statistically have larger households.  This may be due to more children than the current US norm or because of multigenerational families sharing the same living space.  Therefore, two-per-bedroom policies may have an illegal, disparate impact on these households too, based on the basis of race, color, national origin, or religion.>

Under fair housing laws, housing providers can set reasonable occupancy standards that are based on business needs; however, the adverse effect of these standards on various protected classes requires that the housing provider justify the use of such standards.  Each situation presents a unique set of facts.

HUD utilizes guidance from the “Keating Memo” (available at www.FHCO.org/occupancy.htm), which considers a variety of factors, including the size and design of the bedrooms and the unit, the unit configuration, other physical limitations of the housing, the age of the children, and other relevant factors. HUD’s guidance notes that if a dwelling is governed by State or local governmental occupancy requirements, and the housing provider’s occupancy policies reflect those requirements, HUD considers the governmental requirements as a special circumstance tending to indicate that the housing provider’s occupancy policies are reasonable.

As a housing provider, knowledge of occupancy standards can assist you in making reasonable business decisions in compliance with the fair housing laws.  Here’s what to do if you choose to establish an occupancy standard:
1) Measure!
Get out the measuring tape and measure the rooms in your units – specifically the dimensions for each bedroom, living room, extra room, library, den, home office, or other room that may be used as a “sleeping space.”  It helps to develop a floorplan that clearly illustrates the size and configuration of the unit.

2) Find the applicable code!  Find out which local zoning or building occupancy limitations (if any) apply to your unit, house, apartment complex or community.  Apply this occupancy guideline to your units based on each unit’s specific size and configuration determined in #1 above – the resulting number of occupants the applicable guideline allows is the basis for your occupancy standard!

3) Be prepared to substantiate business-related factors!  If there are issues such as the age or condition of your dwelling and its accompanying systems (sewer, septic, electric, water, etc.) which require a more restrictive occupancy standard, be prepared to establish a clear relationship between the business-related factor and the occupancy standard.  For example, if a septic system has a limited capacity, be prepared to substantiate that factor by a statement from someone capable of making that determination.  Also, be prepared to show whether you looked at other ways to address a limited septic system that do not require a restrictive occupancy standard such as installing water-saving devices or more frequent pumping of the system.

Additional factors could be relevant in evaluating an occupancy standard case.  For example, the enforcement agency may need to determine whether the occupancy standard is applied to the number of people or the number of children occupying a unit. <The latter is specifically illegal.  Any occupancy standard you may have should indicate the number of people allowed; never the number of children allowed.>  The enforcement agency may also look at whether there is a history of “adults only” rules, segregation of families, or rules directed only at children. Overall, the fair housing agency will determine whether there is any other information that supports or refutes the allegation that the occupancy standard is being used to bar or limit children <or other protected class, such as ethnicity> from occupancy.

Civil rights enforcement agencies work to protect the civil rights of all regardless of protected class status.  They also have a responsibility to assist housing providers to make reasonable business decisions that are in compliance with fair housing laws.  Each case presents a unique set of facts and is determined on a case-by-case basis; however, housing providers who establish occupancy standards based on the above criteria will have a head start.

For many years we at the FHCO have suggested a more conservative 2+1 recommendation (two-people-per-bedroom plus one extra person for the unit).  We have not seen housing providers get in trouble for a 2+1 policy.  Given the growing body of case law around simplistic two-per-bedroom policies, we recommend this standard all the more strongly.  Better yet, as the article above details, an occupancy policy should be unique to each unit or style of floorplan and be born out of a robust analysis of all the factors hinted at in the Keating Memo.  Additional case law suggests that including young children (under two years of age) as a person for the total body count of occupants is also problematic and we do not recommend it.

We suggest that housing providers think about the individual size of the dwelling and not adopt a blanket standard for all units. If the unit or the bedrooms are particularly large, you should consider even more liberal occupancy standards than you would otherwise.

A further word of caution:  while the Keating Memo references the age of children, housing providers should use the utmost of caution and seek legal council before setting an occupancy policy that focuses on the age, beyond the recommendation to not count children under two years of age.  In addition, it is not the purview of housing providers to predetermine who shall sleep in which rooms or with whom within an unit.  These considerations are up to each individual family; not something that may be dictated by housing providers.

For more information, including a second article on the subject and additional resources, visit www.FHCO.org/occupancy.htm.  If you still have questions please call our Fair Housing Hotline at 800/424-3247 Ext. 2.

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This article brought to you by the Fair Housing Council; a nonprofit serving the state of Oregon and SW Washington.  Learn more and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about your rights and responsibilities under fair housing laws?

Visit www.FHCO.org or call 1-800-424-3247 Ext. 2.

Qs about this article?  ‘Interested in articles for your company or trade association?

Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?

Visit www.FHCO.org/pdfs/classlist.pdf


 

[1] Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Washington law covers martial status, sexual orientation, and domestic violence survivors, and honorably discharged veterans / military status. Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.

 

Fair Housing: Exploring Accessibility From a Child’s Perspective

Libby and the Cape of Visitability
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Guest Blogger:Jo Becker, Education/Outreach Specialist, Fair Housing Council
Serving Oregon and SW Washington

‘Remember Harry Potter and his invisibility cloak?  Well, here’s a fun bit of fair housing news for you!  National fair housing speaker and attorney with For Rent Media Solutions has written a children’s book (e-book) that explores disability1 and accessibility from a child’s perspective.  Another book for kids that’s sure to resonate with grownups as well!  Check it out – and support a great cause – today!

Libby, Aria and Benjamin have been best friends since they were babies. But now Aria has moved to a new house and Libby, who uses a wheelchair, doesn’t get invited to Aria’s birthday party because the house has barriers. Hurt feelings follow…

Then the kids meet Everett, an adult wheelchair athlete, who tells them how the disability rights movement gained successes through years of public demonstrations and pressing for laws. Everett shows them a picture from the 70’s showing people with disabilities blocking inaccessible buses.

The kids are inspired to their version of public action to achieve the goal that every new house would have a step-free entrance and wide bathroom doors. Learn how the kids get on the front page of their hometown paper, as their method gets them in trouble – and how they achieve a sweet victory.

“Libby and the Cape of Visitability” is the diary of Libby, a KWD (Kid with Disability). Written for children ages 8-13, this book raises awareness of the exclusion created when houses are not built with simple features that allow wheelchair users to visit or live in them.

For those grownups (teachers, parents and others) that engage in meaningful dialogue with children, this book provides not only a captivating story and relatable characters, but a Reader’s Guide with discussion questions and resources as well. Eleanor Smith is a well-known civil rights worker and Nadeen Green is a teacher, writer and blogger on the topic of fair housing.

This e-book was made possible with the support of For Rent Media Solutions. Proceeds from For Rent’s share of royalties are being donated to the Michigan Habitat for Humanity (which builds visitable houses)!

“Libby and the Cape of Visitability” is available for Kindle, Nook, Sony eReader, iPad, etc. at

http://bookstore.authorhouse.com or directly at Amazon.com for Kindles and directly at BarnesandNoble.com for Nooks, as well as from other online resources.  For those without e-readers the book can also be loaded onto a computer as a PDF.

This article brought to you by the Fair Housing Council; a nonprofit serving the state of Oregon and SW Washington.  All rights reserved © 2013. Write jbecker@FHCO.org to reprint articles or inquire about ongoing content for your own publication.

To learn more…

Learn more about fair housing and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about this article?  ‘Interested in articles for your company or trade association?

Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?

Visit www.FHCO.org/pdfs/classlist.pdf

[1] Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Washington law covers martial status, sexual orientation, and domestic violence survivors, and honorably discharged veterans / military status. Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.