Making Sure Maintenance Workers Don’t Trigger Fair Housing Claims

Some of the most important, and often overlooked, sources of fair housing complaints arise from maintenance operations. Site owners and managers may face allegations of discriminatory maintenance policies or procedures—for example, that requests from white households are routinely pushed ahead of those from minority households. Or complaints may stem from accusations of sexual harassment or discrimination by a single individual—a member of your maintenance staff or an outside contractor. And increasingly, maintenance operations are implicated in requests for reasonable accommodations or modifications by individuals with disabilities—for example, requests to alter the interior of a unit or common areas to make it accessible for a resident in a wheelchair or to refrain from using pesticides from a resident with disabling chemical sensitivities.

The Fair Housing Act (FHA) outlaws discrimination against anyone in the provision of services or facilities in connection with the rental of a dwelling because of a protected characteristic. In particular, it’s unlawful to fail or delay maintenance or repairs of rental dwellings because of race, color, religion, sex, familial status, national origin, or disability. Consequently, site owners may be directly liable for adopting policies or practices that discriminate in the level of maintenance services provided to residents based on a protected characteristic.

Disparate Impact Claims

In addition to claims based on intentional discrimination, known in legal circles as “disparate treatment,” the courts—and HUD—have interpreted the FHA to ban housing practices, which though neutral on their face, have the effect of discriminating against protected classes. Legal experts refer to this type of claim as “disparate impact.” In recent months, the U.S. Supreme Court was poised to hear the issue, but the case was withdrawn from the court’s docket, leaving intact the lower court rulings banning the practice. Meanwhile, HUD has taken steps to formally acknowledge that disparate impact claims are covered under the FHA.

With respect to maintenance operations, a site could face a disparate impact claim based on a policy to focus maintenance efforts on certain areas or properties, to the exclusion of others, if it has a discriminatory effect based on the protected characteristics of the members living there. Such a claim could arise, for example, if the site devotes all its attention to maintaining luxury units or buildings—while ignoring basic maintenance chores in lower-rent tax credit units or buildings. If most of the residents of the luxury units are white—or childless—but most of the residents in the low-rent tax credit units are minorities or families with children, then it could lead to a disparate impact claim.

Follow Six Rules

To help ward off potential discrimination complaints at your site, employ the following six strategies.

Rule #1: Provide all employees with basic fair housing training. All site employees, including maintenance workers, housekeeping employees, landscaping crews, pool attendants, fitness center staff, and the like—should understand the basics of fair housing law.

Train maintenance and service workers on how to respond to comments or questions that touch on fair housing matters by anyone whom they encounter in the course of their duties. In general, they should understand why they shouldn’t answer any questions by visitors about the racial makeup or other protected characteristics of the people living at the site. It could be part of a fair housing test to ferret out unlawful discrimination.

Nor should employees offer personal opinions or indicate agreement with a resident who complains about neighbors, such as displeasure with cooking odors or noisy children. Train employees to keep personal feelings to themselves and to tell the resident to contact management with any questions, comments, or complaints. In addition, instruct employees to report such incidents themselves, so the site can document what transpired—and how the employee handled the situation—to ward off later accusations that the employee acted inappropriately.

Rule #2: Adopt uniform policies for handling maintenance and repair requests. In general, it’s a good idea to handle maintenance and repair requests on a first-come, first-served basis—unless the request involves an emergency.

Develop a written policy that defines what constitutes an emergency with specific examples of the types of problems that would justify an immediate response. Examples include complaints about smoke, overflowing toilets, and electrical problems. The policy should also outline the types of problems, such as a jammed garbage disposal or stuck closet door, which wouldn’t be considered emergencies. While it may be difficult to foresee all types of problems that may arise, the more detailed the list, the better.

The policy should detail the process for handling maintenance requests. For example, the staff member taking maintenance calls or emails should document the time and date of the request, details about the problem, and the name and contact information for the resident making the request. These basic procedures ensure that maintenance services are provided consistently based on reasonable, objective criteria, as opposed to discriminatory factors such as the race or other protected characteristic of the resident making the request.

Rule #3: Take reasonable accommodation requests seriously. Emergencies aren’t the only times that justify making an exception to the first-come, first-served policy for handling maintenance and repair requests. In some cases, a maintenance or repair request may require immediate attention if it qualifies as a reasonable accommodation for an individual with a disability.

Fair housing law requires housing providers to make exceptions to rules, policies, practices, or services as a reasonable accommodation when necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. The rule applies both inside the unit and in common and public-use areas. An exception to the first-come, first-served rule to provide immediate repair or maintenance service could qualify as a reasonable accommodation for an individual with a disability under certain circumstances.

Moreover, federal enforcement officials stress that sites must respond promptly to reasonable accommodation requests. Failure to respond within a reasonable period is considered a denial of the request, setting the stage for a formal complaint or lawsuit.

Rule #4: Take steps to prevent sexual harassment. Site owners have a duty to ensure that their employees, agents, or contractors don’t engage in sexual harassment, according to HUD. A site owner or manager may be held liable if she knew or should have known that an employee, agent, or contractor is sexually harassing applicants or residents, but failed in her duty to stop it.

Sites have to take proactive measures to ban sexual harassment, which is considered a form of discrimination based on sex. The first step is to develop a site policy banning sex discrimination. The policy should fully explain the two types of sexual harassment:

• Quid pro quo sexual harassment—in which an employee or contractor conditions access to housing or related services on a resident’s submission to sexual conduct; and
• Hostile environment sexual harassment—in which a resident is subjected to sexual behavior of such severity and pervasiveness that it results in an environment that’s intimidating, hostile, or offensive.

Make it clear that the policy applies to all employees, whatever their position, as well as to outside contractors or vendors. The policy should spell out that violations are grounds for disciplinary actions against employees—and termination of services by outside contractors.

Adopting the policy is a good first step, but communities must go further to prevent liability for sexual harassment by employees or contractors. According to HUD, site owners and managers are subject to liability for sexual harassment by employees or agents—regardless of whether they knew about it or were negligent in failing to prevent it from occurring. For example, HUD says that if a manager authorizes a maintenance worker to enter a resident’s home to make a repair, and the maintenance worker sexually harasses the resident, then the management company would be legally responsible for the discriminatory actions of the maintenance worker.

To reduce the risk of improper conduct—or false accusations of improper conduct--by your maintenance staff or outside contractors, maintain and follow written policies and procedures regarding when maintenance and repair work is performed--particularly inside occupied units. Among other things, guidelines for maintenance workers could include:

• Have proper identification, such as a work shirt or badge, while on the job;
• Enter units only for scheduled repairs or maintenance or in case of emergency;
• Give reasonable notice before repair or maintenance visits;
• If the resident is home, don’t enter the unit unless the resident lets you in;
• Except in case of emergency, don’t enter a unit if any child under the age of 18 is home without the presence of a parent or other adult;
• Treat all residents the same;
• Don’t fraternize with residents;
• Respect residents’ privacy; and
• Don’t allow yourself to be in a compromising position.

Rule #5: Carefully select and monitor outside contractors. Since owners and managers may be held responsible for fair housing violations committed by vendors or contractors, it’s important to exercise due diligence in selecting outside contractors to perform services at your site.

Among other things, check the company’s references and reputation—not only for quality workmanship, but also for their professionalism on the job. Ask about how the company screens employees—for example, whether they perform drug testing or criminal background checks, if permitted. Determine whether the company provides basic fair housing training to employees and how it supervises employees working on job sites.

Once you’ve selected a contractor, give him a copy of your site’s fair housing policy—particularly your policy banning sexual harassment—and make sure that a staff member explains the policy before the contractor starts working at your site. Take steps to monitor the contractor’s activities while working on your premises—particularly while performing services inside occupied units.

To protect your community from liability from discriminatory conduct by contractors, legal experts advise that two legal documents should be signed before you hire them to perform services at your community:

• An acknowledgement that the contractor understands your community’s fair housing policies and the consequences of its failure to abide by those policies; and
• An indemnification agreement that requires the contractor to repay you for any legal expenses or damages you must pay because of its violation of fair housing laws.

Rule #6: Keep good records. Good record keeping is essential to help prevent—and defend against—any fair housing complaints with respect to how your site handles maintenance and repair requests.

Make sure that that you maintain written policies and procedures for handling maintenance requests, including whom to call, what happens outside non-business hours, what to do in case of emergency, what kinds of problems qualify as emergencies, and the like. Make sure to give a copy of the policies and explain them to all new residents, and review them again at lease renewal.

Keep records about each request for maintenance and service—including time and date; full contact information for the person making the request; when and who is assigned to do the work; when and how it was completed; the reasons for any delays, such as the need to order a replacement part; and any other relevant information.

Moreover, fully document any complaints about maintenance services and what the community did to resolve the problem. This is particularly important if there’s any suggestion that a complaint about maintenance services seems related to a fair housing matter. Examples include a resident who complains that she received inadequate service because of her race or complains about inappropriate sexual comments or conduct by members of your maintenance or landscaping crew.