Elizabeth L. Moreland, NCP-E, SCS, HCCP, SHCM, FHC
September was a very busy month for HUD as they begin tackling numerous issues on their fair housing agenda specifically Limited English Proficiency Guidance, quid pro quo & hostile environment harassment and equal access.
Limited English Proficiency (LEP)
On September 15, the Office of General Counsel (OGC) published Office of General Counsel Guidance on Fair Housing Act Protections for Persons with Limited English Proficiency, which expanded their guidance in their 2007 LEP Rule.
As you likely know, LEP refers to a person’s limited ability to read, write, speak, or understand English. Although such individuals are not part of a protected class, the Fair Housing Act (FHA) prohibits housing providers from using LEP selectively based on a protected class or as a pretext for discrimination because of a protected class. The Act also prohibits housing providers from using LEP in a way that causes an unjustified discriminatory effect.
As mentioned previously, HUD published the LEP Rule in 2007 and required HUD-assisted housing owners and managers to identify the languages spoken in their market area and to create a plan to assist individuals with limited English. Such assistance plans could include the hiring of bilingual staff, translating critical documents and providing interpretation services. Since that time, HUD has published a variety of documents in non-English languages, and regularly monitors for LEP assistance.
In the expanded LEP Guidance, HUD indicates that most LEP individuals have limited proficiency with English because they are from non-English speaking countries and contends there is a relationship between discrimination based on language skills and discrimination based on race or national origin. In the guidance, HUD states, “[a]lthough language discrimination is not necessarily national origin discrimination; national origin discrimination includes discrimination because an individual has the physical, cultural or linguistic characteristics of persons from a foreign geographic area.”
The guidance addresses both intentional discrimination or disparate treatment and unintentional discrimination or disparate impact. HUD contends that minimal English is often sufficient to complete basic transactions so advertising that indicates all tenants must speak English is a concern stating, “singling out persons for disparate treatment because they speak a certain language is typically national origin discrimination.” Further, the memo indicates that treating someone differently because they speak fluent but accented English is also potentially discriminatory. And finally, it warns that housing providers who are required to provide LEP assistance and fail to do so may also be in violation of FHA.
The guidance also outlines HUD’s 3-step burden-shifting regulations to analyze whether LEP policies may constitute disparate impact discrimination.
- Step #1: Plaintiff (i.e., charging party) must prove the LEP-related practice resulted or will likely result in discriminatory effect.
- Step #2: If proven, burden shifts to respondent (i.e., accused party or defendant) to prove practice necessary to achieve substantial, legitimate, nondiscriminatory interest. However, HUD warns that it will be difficult to justify any policies that exclude applicants based on their English proficiency or to deny them an opportunity to have documents translated or to use an interpreter.
- Step #3: If however, the defendant is able to do so, the plaintiff must then prove whether there is a less discriminatory alternative, such as allowing translation of documents, use interpreters or to obtain language assistance from family members.
HUD-assisted owners and managers are familiar with their LEP duties, but market-rate housing owners and managers may see this guidance as a substantial intrusion as the guidance hints that these owners should adopt similar practices HUD owners must to avoid fair housing claims including having important lease-related documents translated. If that is the case, the guidance significantly expands the efforts that market-rate owners should take to avoid fair housing claims, placing them in a position similar to owners of HUD-assistance properties. It is highly recommend all owners, whether HUD-assisted or market-rate, closely review the LEP Guidance and discuss if they need to adjust their policies with their fair housing legal counsel.
Quid Pro Quo and Hostile Environment Harassment
Also in September, HUD published, Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act, which is their final rule dealing with harassment-based violations of FHA that applies to both HUD-assisted and market-rate multifamily rental properties. The rule identifies two types of harassment:
- Quid Pro Quo Harassment: This type of harassment is “this for that” harassment such as demanding sexual favors in exchange for late rent or the fixing of a maintenance issue.
- Hostile Environment Harassment: This type of harassment is where an owner or manager tolerates or even encourages harassment of someone in a protected class by others (staff, tenants, vendors, etc.).
The final rule also discusses owner and manager liability for behavior conducted by staff, tenants and other related parties. HUD indicates that owners may be held directly liable for employee or tenant harassment if they knew or should have known about the behavior and vicariously liable rule for harassment by an agent or employee regardless of whether they knew or should have known about the behavior. Further, the final rules indicate that the new liability rules apply to all discriminatory housing practice, not just to harassment. It is highly recommend all owners, whether HUD-assisted or market-rate, closely review the harassment final rule and discuss policies and practices they should put into place with their fair housing legal counsel.
On September 21, HUD published its final rule entitled Equal Access in Accordance with an Individual’s Gender Identity in Community Planning and Development Programs in the Federal Register. In 2012, HUD published its equal access rule restricting owners and managers of HUD-assisted and insured housing in asking about an applicant’s sexual orientation, gender identity or marital status. However, HUD realized this rule did not sufficiently address the needs of transgender and gender-nonconforming individuals in shelters and other emergency housing.
Through this final rule, HUD ensures equal access to individuals in accordance with their gender identity in programs and shelters administered by HUD’s Office of Community Planning and Development (CPD).
HUD indicates that CPD recipients should adopt policies to assure safe housing for all residents, including transgender persons, and advised that they should attempt to educate other residents and adopt policies that minimize such concerns. HUD warns that if necessary, expulsion of residents or staff who engage in harassment may be considered.
This final rule applies to all recipients of CPD assistance including HOME funds, CDBG grants, HOPWA assistance and other programs. It also makes clear that those duties extend to recipients and sub-recipients, owners, operators and managers of shelters and other buildings, and facilities and providers of services funded in whole or in part by any CPD program.