With Fair Housing, Better Bring the Umbrella

Apartment communities seeking to protect themselves from the storm that can come from fair housing violations in Madison, Wis., better take along an umbrella. Madison is considered to be the country’s leader when it comes to protected classes, touting at least 24, according to Nadeen Green, Senior Counsel with For Rent Media.

In fact, that strategy is best used by any apartment owner or manager who operates in multiple markets. While each community in a portfolio can have very specific and different policies based on the fair housing protections in that location, managing that can be difficult, not to mention potentially risky, she adds.

“For years I have been advocating to my classes and readers to use the umbrella approach,” Green says, meaning to cover themselves completely as to all potential protected class violations.

“Originally, that was because of the risk in having corporate policies that differ from community to community, which would be confusing for the onsite staff and could create the possibility that an employee would not understand that certain policies were acceptable at one community but not at another,” she says.

An example, she says, might be the “No, we don’t take Section 8” response that a leasing professional could utter.

“That’s perfectly okay to say in Georgia, but not in many other places,” Green says. “With apartment marketers today focusing so much on online marketing (rather than local newspapers or printed publications) all of their ads are reaching a broader audience. And whether an ad read online in Madison for a community located in Atlanta would create any fair housing liability issues … it just doesn’t make sense operationally to take that chance.”

Madison includes more than two dozen fair housing protections mainly because activists with progressive ideologies dominate the city’s politics, according to Green. What generally motivates a jurisdiction to protect so many classes beyond the seven required by federal law?
Green says:

  • Political climate
  • Perceived need to protect
  • Actual indications of need for certain groups to have protection

The Given Seven

No matter where a community is located, seven federal protections are in place (See “The Given Seven”). They are non-negotiable and likely will never be decreased. Given the current political situation, it is less likely that there will be federal additions in the near future, Green says.

“If there is, the prediction among my fair housing colleagues is that source of income and LGBT protections would be next, as well as protections for victims of domestic violence,” Green says.

Fundamentally speaking, the Fair Housing Act (the federal law) says that apartment communities cannot make decisions about leasing to people or providing them with the services and facilities that are available based on their race, color, sex (gender), national origin, religion, familial status (being pregnant or having a child under the age of 18) or disability.

While federal law provides that all state and local governments must accept this law as to the federally protected classes, state and local governments are empowered to create further protected classes as well, and they are regularly doing so in response to localized issues, problems or prejudices. Following are additional protected classes that are seen quite often:

  • Marital status: Owners or managers cannot impose different standards and conditions based on whether prospects or residents are married; this comes up most often in the context of application fees, when a married couple is asked to pay only one application fee and an unmarried couple is required to pay for two such fees.
  • Age: Actually, many in the industry believe this is one of the seven federally protected classes. It is not. But where it is protected, age cannot be a factor in approving an application or providing services. This issue is one that is often brought up in areas where there are many college-age students or an older population.
  • Sexual orientation: Decisions about renting or providing services cannot be made based on the sexual orientation of the prospect or resident, or on what the owner or manager may think is someone’s sexual orientation. And keep in mind that today this includes gender identity, including the transgender population.
  • Source of income: Landlords will sometimes discount or not take into consideration at all income that is not in the form of the traditional work-related paycheck. If this law is in effect in a given area, it means that all lawful income, including alimony, child support, and welfare, must be considered at full value in satisfying the community’s income requirement.
  • Ancestry: National origin relates to a person’s own place of birth; ancestry relates to the background of that person’s parents or grandparents. (A native-born U.S. citizen of Japanese descent thus has America as their national origin and Japan as their ancestry.)

On localized levels, laws provide for localized issues. Thus, some university or college towns historically protected students; Washington, D.C., not surprisingly, protects political affiliation; in Cincinnati, Appalachian origin is given protection. Height, weight, arrest record and HIV have all given rise to additional laws is some areas. Some governments have even taken the position that appearance gives rise to protected status, which widens the realm of liability for the owner or manager when it can be alleged that, “You didn’t rent to me because you don’t like how I look.” Some of the challenges in society today lead to further housing protections; Madison has added homelessness and genetic identity as protections.

Because there are so many of these protected classes, it is imperative that onsite staff at every community know just what the protected classes are in their jurisdiction. Those who own or manage in more than one jurisdiction may want to consider policies providing that every one of all the cumulative classes is protected, no matter the location of the community.

Owners and managers likely need to be prepared for more governmental regulation at all levels. Fair housing for all people, protected or not, can minimize further regulation in the multifamily housing industry, and it is the right thing to do.

Fair Housing Rights: Protected Classes

In addition to classes mentioned in the article, here are protected classes that are applicable in Madison, Wis.

Domestic Abuse, Sexual Assault and Stalking Victims: Persons who have been or are victims of domestic abuse, sexual assault or stalking.

Military Discharge Status: Type of military discharge, also including active duty status.

Physical Appearance: The outward appearance of any person.

Political Beliefs: A person’s opinions concerning the social, economic and governmental structure of society and its institutions.

Student Status: Having or not having standing as an enrollee of a school or apprenticeship program.

Domestic Partnership: Two adults in a relationship of mutual support, who occupy the same dwelling as a single housekeeping unit, and whose relationship is of a permanent domestic character.

Tenant Union Association: Persons who form or are associated with a tenant union.

Gender Identity: Identifying or presenting oneself as male, female or androgynous, regardless of one’s biological sex at birth.

Genetic Identity: Genetic information unique to the individual, including information about genetic tests.

Citizenship Status: The immigration status or citizenship of any person.

Section 8 Housing Vouchers: Participants in the Housing Choice Voucher Program.

Non-religion: Atheism, agnosticism, or other disbelief or lack of belief in the existence of God or gods.

Homelessness: The status of lacking housing, including having a shelter or transitional housing facility as a primary residence.