Follow Six Rules to Avoid Discriminating Based on Race, Religion, or National Origin
A federal judge recently froze the latest iteration of President Trump’s travel ban, claiming that the new order is still essentially a Muslim ban. In the opinion, the U.S. District Judge pointed to President Trump’s own comments and those of his close advisers as evidence that his executive order is meant to discriminate against Muslims and declared there is a “strong likelihood of success” that those suing will prove the directive violates the Constitution. The Trump administration still argues that the ban is justified because it will reduce the possibility of terrorist attacks.
With the public attention focused on the travel ban and threat of terrorism, it may be a good time to review what the federal Fair Housing Act (FHA) says about discrimination based on national origin, race, and religion. The FHA includes “national origin” as one of its seven protected classes. This term refers to the country where tenants and their families come from. By including national origin as a protected class, the FHA aims to protect people from being treated differently by a housing provider because of a dislike or fear of their background or upbringing. Tenants or applicants who file a complaint based on national origin very often also allege discrimination based on race or religion.
Like many owners and managers, you may have taken steps to increase screening and security at your tax credit site due to safety concerns similar to those President Trump expressed in defending his travel ban. For example, you may require applicants to show photo IDs or immigration documentation, or ask residents to be on the lookout for signs of suspicious behavior. Although it’s okay to be more vigilant, you must also respect the fair housing rights of applicants and residents and not use these measures as an excuse to discriminate on the basis of race, religion, or national origin. Otherwise, you risk violating the FHA, which bars these types of discrimination. Here are six rules to help you avoid such fair housing problems at your tax credit site.
Rule #1: Don’t Reject Applicants Based on Race, Religion, or National Origin
You can’t reject an applicant solely because of his race, religion, or national origin. You must base your admission decision only on legitimate screening criteria. For example, you may reject an applicant because he’s not eligible to live in a low-income unit at your tax credit site or because he has a poor credit history. But you can’t reject him, say, because you believe his being Middle Eastern or Muslim makes him more of a terrorism risk.
Also, apply your site’s screening criteria consistently to all applicants. It’s okay to reject an applicant who happens to be Muslim or Middle Eastern, as long as your rejection is based on the same legitimate screening criteria you apply to everyone and you reject only those who don’t meet those criteria.
For example, if your policy is to conduct credit checks for all applicants, don’t waive that policy for, say, a Caucasian applicant, but then enforce it against a Middle Eastern applicant. And make sure you document the reasons for rejecting an applicant. That way, if someone later claims you rejected her because of her race, religion, or national origin, you can prove that your reasons for rejecting her application were legitimate and nondiscriminatory.
Rule #2: Don’t Require Some Applicants to Give You Additional Information
Don’t ask for additional information from applicants of certain races, religions, or national origins in an effort to screen out potential terrorists or other troublemakers. For example, don’t ask Middle Eastern applicants for more references than you ask other applicants to provide. Ask the same questions of all applicants.
Rule #3: Don’t Advertise in Ways that Show Preference Based on Race, Religion, or National Origin
The FHA makes it illegal to include anything in ads or brochures that indicates a preference for or restriction against people of one race, religion, or national origin. When advertising your tax credit site, make sure you don’t imply that you prefer your residents to belong to a certain race, religion, or national origin. For example, you can’t describe your site as a “nice, Christian place.” And be careful that the visual content of your ad doesn’t violate the law. For example, by using only Caucasian models, you may imply a racial preference, or by using a brochure with a Star of David or a Christian “fish” symbol, you may suggest illegal religious preferences.
If your tax credit site is affiliated with a religious or “faith-based” organization, this organization might use religious symbols as part of its registered trademarks. If that’s the case, you can prevent fair housing problems by including a disclaimer in your ads saying something like, “This community does not discriminate on the basis of race, color, religion, sex, national origin, disability, or familial status.”
Rule #4: Provide All Residents the Same Services and Privileges
In response to the president’s attempts to bar citizens of Muslim-majority countries from entering the U.S., you or your staff may be tempted to treat Muslim or Middle Eastern residents differently. You may want to make it harder for members of that particular group to feel comfortable at your site to encourage them to move out. But doing this can get you in fair housing trouble.
You and your staff must provide the same caliber of service to every resident—regardless of the resident’s race, religion, or national origin. Tell your staff members they can’t, for example, put an Arab or other Middle Eastern resident’s maintenance requests at the bottom of the list simply because of a newfound prejudice against these groups. Nor can a staff member provide faster service to, say, a Christian resident than to a Muslim resident simply because the staff member is Christian, too. Also, make sure your staff treats all residents, regardless of race, religion, or national origin, in the same courteous and respectful manner.
And don’t limit a resident’s use of site amenities, such as community rooms, based on his race, religion, or national origin. For example, don’t deny an Arab resident’s request to use the site’s community room if the room is available, while granting the same request from a Caucasian resident.
Rule #5: Respond Appropriately to Residents’ Complaints About Other Residents
Discrimination doesn’t come just from site staff—it can come from other residents, too. And even if you’ve asked your residents to report suspicious activity by other residents or guests, this isn’t an open invitation for them to discriminate against neighbors of certain races, religions, or national origins. When responding to residents’ complaints about other residents, verify that each complaint is based on a legitimate concern, and not on the resident’s prejudice, before taking action.
For example, say a resident complains to you that another resident, who’s Muslim, has a group of Muslim men over to his unit every Monday night. The resident tells you, “the men appear unfriendly” and that she thinks “they’re up to something.” If the resident and his visitors haven’t been noisy or disruptive or broken any rules, you can’t ask the resident to stop having the guests over to his unit. If you do, you could be accused of religious discrimination.
If you get a complaint or otherwise suspect that residents are harassing or discriminating against other residents because of their race, religion, or national origin, don’t let this behavior continue. Doing nothing about these complaints can also get you in fair housing trouble. Make sure you investigate and take action, including meeting with the accused resident and any witnesses, sending warning letters, and if necessary, evicting the offending resident.
Rule #6: Enforce Lease and Rules Consistently
Don’t let fear of terrorism or prejudice cause you to improperly punish or evict a resident. Make sure you treat all residents the same when enforcing your site’s lease and house rules. Your response to a resident’s lease or house rules violation mustn’t differ based on a person’s race, religion, or national origin. Don’t impose more severe penalties on, say, a South Asian resident than you would for the same violation by a Caucasian resident. And don’t fabricate reasons for evicting lease-abiding residents because of baseless fears that they’re potential terrorists: Evict based on residents’ behavior or other lease violations, such as not paying rent, not on their race, religion, or national origin.