Reduce Damages Arising from Staff's Discriminatory Conduct
In 2007, HUD's Office of Fair Housing and Equal Opportunity (FHEO), the division devoted to anti-discrimination and Fair Housing concerns, investigated approximately 10,300 cases involving claims of discrimination, according to Kim Kendrick, assistant secretary for FHEO. Based on a pattern of investigation by HUD, going back several years, HUD is increasing its efforts to end discrimination in housing.
If you have discussed discrimination complaints with your top staff and put up Fair Housing posters in site offices, you may assume that you have taken all reasonable steps to prevent Fair Housing violations at your tax credit site. But your site could still face the threat of a violation unless every member of your site's staff complies with Fair Housing law. The discriminatory behavior of even one low-ranking site staff member could cost you a large amount of money.
Discrimination could also put the owner's tax credits at risk. If your state housing agency learns that you have violated Fair Housing law, it must report your site to the IRS for noncompliance. To protect your bottom line, you must put your nondiscrimination goals for site staff in writing.
Ensure Site Staff Complies with Fair Housing Goals
Follow these steps to ensure that all site staff members understand their Fair Housing obligations—and the importance of complying with them.
Inform and educate staff. Educate site staff about your Fair Housing goals. Your employee handbook should include a clear nondiscrimination policy, emphasizing employees’ responsibility for Fair Housing compliance, says Washington attorney Harry J. Kelly. For example, your handbook's section on Fair Housing might read something like this:
We at [insert name of site] do not discriminate against applicants on the basis of their race, color, creed, religion, sex, national origin, age, familial status, or disability. This means that you must never, while working at [insert name of site] express bias or prejudice toward any person on the basis of race, color, creed, religion, sex, national origin, age, familial status or disability. You must not act—or refuse to act—for discriminatory reasons. And you must not display any racist or discriminatory symbols or slogans. If you violate this policy, you will face disciplinary action and may be fired for even one violation.
It is also important to provide Fair Housing training for all site staff, Kelly says. Many managers retrain staff annually because of high staff turnover rates.
Don't ignore any complaint. Some managers refuse to accept complaints unless applicants or residents submit them in writing, says Kelly. In some cases, such as complaints about noisy neighbors, this might help you separate the serious from the frivolous. But if you have such a policy, you should make an exception for complaints involving discrimination, says Kelly.
Instead, require your staff to write down the details of the complaint if an applicant or resident reports discriminatory treatment. Have them do this even if the applicant or resident does not want to make a written complaint.
Investigate all complaints. After writing down a complaint, don't simply file it away without taking action. These days, it is a big mistake to appear unresponsive to discrimination complaints, says Kelly. You should investigate every discrimination complaint you receive. This means hearing the applicant's or resident's side of the story, and interviewing the staff member and any witnesses mentioned by either side as well.
Interviewing the staff member is important not only as a necessary step in the investigation but also because he may have acted improperly out of ignorance and without ill will toward the applicant or resident. If so, the interview gives you an opportunity to educate him on Fair Housing law—preventing further or more serious misconduct.
Keep records of your investigation. In addition to writing down the complaint details, you or your staff should keep a written record of your investigation, including taking written notes of all interviews. Then write down any conclusions you draw on the basis of your investigation, including any reasons you may have for placing greater weight or emphasis on a particular piece of evidence or on some individual's statement than on other evidence or other people's statements. Place a copy of this material in the personnel file of the site staff member involved, says Kelly.
Fire biased employees. If you conclude from your investigation that a member of your site staff deliberately violated Fair Housing law, fire him or her. If you receive numerous discrimination complaints from different applicants or residents against a particular site staff member, you should fire him or her even if you cannot corroborate the charges, and even if you cannot otherwise make absolutely certain that they are justified, says Kelly.
The risk of a sizeable Fair Housing award against you outweighs the risk that the staff member might sue you for unlawful discharge—not to mention that such a lawsuit is not likely to get far if you have kept records of all the complaints made against the staff member.
EDITOR'S NOTE: For more information about FHEO, visit HUD's Homes and Communities Web site at http://www.hud.gov. On the right side, go to “Information for” and click on “victims of discrimination.” At the top center of the page, hit the button for “Learn More about FHEO.”
For monthly Fair Housing training, check out our sister publication, Fair Housing Coach. Call 1-800-643-8095 to get a free sample issue.
Fair Housing Act: 42 U.S.C. §3601 et seq.
Harry J. Kelly III, Esq.: Nixon Peabody LLP; Washington, DC