CREJ - Property Management Quarterly - April 2017
A recent increase in Fair Housing Advocacy Groups testing in Denver is catching many landlords off guard and the consequences for failing the test can be severe. The Federal Fair Housing Act was enacted to protect people from discrimination during the sale, financing or rental of housing or housing related services. A person cannot be discriminated against based on race, color, religion, national origin, gender, familial status or disability. Colorado state law additionally protects from discrimination based on sexual orientation, creed, ancestry and marital status. In a 2012 Housing Discrimination Study conducted by the U.S. Department of Housing and Urban Development, it was discovered that while there were fewer cases of overt discrimination since 1977, there were other increasingly subtler forms of discrimination being employed against minority home-seekers. In Colorado, the Denver Metro Fair Housing Center is working to fight some of the more subtle ways landlords may be discriminating. Their mission is to eliminate housing discrimination and to promote fair housing choices for all people. One way the Denver Metro Fair Housing Center carries out its mission is by assisting housing seekers and others in the resolution of complaints of housing discrimination. One of its methods for promoting compliance with fair housing laws is working with fair housing advocacy groups to send out testers. So the question is, can you pass the test? Testing occurs when a tester initiates a pretend housing transaction. The testers are trying to make sure that landlords are complying with the law, which means that the information the testers gather can be used against properties in housing discrimination proceedings. One common way for the Denver Metro Fair Housing Center to test a property is by using the paired testing method. The paired testing method employs two testers who initiate a housing transaction, both of whom are the exact same except for one characteristic that falls under the above-mentioned protected statuses. For example, one tester may have a child while the other does not. However, testing does not have to be an elaborate scheme or even conducted in-person. A tester can simply call or email the property to inquire about something that would indicate their status. For instance, a tester could call an apartment complex and ask if the “no pet policy” includes service animals or he could ask about the racial makeup of the neighborhood. The wrong answer to these types of questions could raise a red flag about the property to a fair housing tester. The testers often will respond to a rental or sale advertisement. Those advertisements also must comply with fair housing standards and therefore landlords should be very aware of how they market their properties and the phrases they use. Additionally, everyone who has the potential to speak with a prospective renter should be up to date on what the property website and advertisements market. While properties may not set out to discriminate, landlords could find themselves the subject of a discrimination suit when they have not taken proper care to protect themselves. The goal of a landlord should not be to identify these potential testers, but rather their focus should be on taking steps to ensure they are systematically complying with fair housing regulations. A landlord can leave herself vulnerable to a discrimination complaint even though there was no intent to discriminate, but instead based on a mishandled phone call, email or in-person interaction. One way for a property manager to ensure he passes a tester’s investigation would be to make sure that everyone working for the property is properly trained and educated on the law. Everyone who has the potential to come into contact with people seeking to rent a property should be educated on the law and be trained to answer questions in an accurate, but legally harmless way. While training may take time and the type of issues that result in discrimination suits can be deceptively small, it will cost much less to train employees on how to properly answer questions from potential renters than the cost of defending one’s self against a discrimination complaint. The potential penalties for violating fair housing laws can include fines, punitive damages and attorney fees, not to mention the time, effort and emotional turmoil that is involved in defending against such claims. Obviously, testers will not be identifying themselves, nor will agencies give a property manager or landlord a heads up, so the best way to think about a fair housing test is like a surprise pop quiz. Just like any quiz, the best way to pass is to be prepared. Property managers do not have to, and should not, wait for the Denver Metro Fair Housing Center to test them, but rather property managers would find it worth their while to test their teams on their own. Being prepared could save landlords from a costly mistake. If landlords and building staff remain committed to keeping up with current fair housing laws they should easily pass the fair housing test.