We were intrigued to come across this article that submits the Trump administration has taken a hammer to fair housing enforcement by banning federal agencies from using “disparate impact” analysis.

Moreover, ProPublica reports that at least 115 fair housing cases have been halted or closed by HUD. With the agency being gutted, there are scarce resources to investigate allegations of housing discrimination, with some bad actors ignoring HUD.

Our response: Housing providers should not get a false sense of bravado. With the possible exception of New York, California is home to the most stringent protections anywhere and has long been the capital of Trump resistance. Executive fiat and efforts to build a “merit-based America” do not change fair housing laws that are vigorously enforced in the Golden State.

Honest landlords have a target on their backs

Sure, there are always some bad apples, but from our hard-won experience, most housing providers who get into trouble with claims of discrimination are simply ignorant of the law. Let’s take a few examples. 

A disabled gentleman seeks to rent a second-floor apartment.

The landlord fields a rental application from a man who clearly has difficulty walking and uses a cane. He’s told that since the building does not have an elevator, it’s not a good idea for him to rent the apartment. The landlord is genuinely concerned for the prospective renter’s safety and also doesn’t want to be sued in the event that the man falls and gets injured walking up or down the stairs.

Yet ironically, it is more likely that the landlord is sued for housing discrimination by turning down the applicant. What was an act of love or self-preservation now leads to a costly lawsuit.

A studio/efficiency apartment is advertised as the perfect rental for a single person. 

Maybe so, but what if a married couple with children is trying to stretch their money and wants to occupy the bachelor’s pad? The landlord has now discriminated based on familial status. The widely accepted guideline is the “2+1” rule. This allows for two people per bedroom plus one additional occupant in the unit.

A mother with a small child seeks to rent an apartment on the third floor with a balcony. 

The landlord is understandably concerned that the child will fall off the balcony and denies the rental application on those grounds. Now, what they have just done is invite a discrimination lawsuit because they are excluding a child.

The most common discrimination lawsuit of them all: denying Section 8 tenancies. 

Unfortunately, there are “testers” employed for the sole purpose of catching landlords or their agents in summarily denying tenancies to applicants with a Section 8 voucher.

These testers are plentiful, but our office has had a particularly hard time with a pesky East Bay attorney we won’t name who has carved out a lucrative practice utilizing testers to call up housing providers and ask if they accept Section 8 vouchers.

When landlords and property managers respond “no”, the attorney churns out ominous letters threatening to commence a lawsuit UNLESS the wrongdoer pays three times the advertised rent and an additional $5,000. This litigation is easy to prosecute and hard to defend against.

In an oldie but goodie, our founding attorney hosted a webinar on this topic.

There are a myriad of fair housing laws, but let’s address a few of them that are top of mind.

Immigration or citizenship status, a timely topic nowadays: This is off limits in the tenant screening process, and it’s important to note that disclosing or threatening to disclose a tenant’s immigration status to authorities as a form of retaliation or harassment is prohibited. If an undocumented person is applying for a rental, housing providers cannot use this as leverage in the screening process.

Criminal history: Some locales like San Francisco, Oakland, and Berkeley have “Fair Chance” ordinances that prohibit or put constraints on inquiring about a tenant’s criminal background. At any rate, housing providers cannot have a blanket policy to ban all applicants with criminal convictions; instead, the conviction must pose a safety risk to the rental community.

Credit score: By now, the rental housing community should know that a rental applicant can provide alternative and verifiable evidence of their ability in lieu of the applicant’s history. Our concern is that many landlords are unaware of their obligation to furnish a copy of a rental applicant’s credit report if it was obtained during the tenant screening process. This must be sent within seven days of the landlord receiving it.

How to avoid discrimination and the problems that arise from it

One, the criteria for renting a unit should be clearly stated in writing. An aggrieved rental applicant who is denied a tenancy is hard-pressed to argue that they were discriminated against when there were guidelines spelled out and they failed to meet them. This is not only the best practice; it is now required whenever a prospective tenant pays a rental application fee.

Two, refrain from making any statements that can be construed as expressing a preference for a certain group or a disfavor for another group. Less communication is more.

Three, every member of your team should be educated on fair housing laws, especially the people answering the phones and fielding rental applications. There needs to be a culture of compliance for everyone, not just at the top. One issue we have seen is that the property management industry has suffered from a high turnover rate, and so when new employees are brought in, we’ll have to begin anew with educating new team members.

At Bornstein Law, we like to work ourselves out of a job and would rather housing providers avoid a lawsuit. In the unfortunate event that a lawsuit arises, you could, of course, rely on our office to respond to claims of discrimination.