Several notices of importance related to the Fair Housing Act (FHA) were issued recently by the U.S. Department of Housing and Urban Development (HUD), covering new protections for victims of harassment, survivors of domestic violence and guidance for people with Limited English Proficiency. Specifically, HUD’s harassment final rule formalizes legal standards under the Act for sexual and other forms of harassment in housing.

The domestic violence guidance is intended to provide state and local governments, and private and public housing providers, with details on how the department will assess nuisance or crime-free housing ordinances, policies or practices alleged to be discriminatory under the FHA. And finally, the Limited English Proficiency guidance addresses how the Act would apply to claims of housing discrimination brought by those who do not speak, read or write English proficiently.

Victims of Harassment

HUD’s Final Harassment Rule specifies how the department will evaluate claims of “hostile environment” and “quid pro quo” harassment in both private and publicly-assisted housing. Over the years the department and the courts have long held that harassment in housing-related transactions on the basis of race, color, national origin, religion, sex, disability and familial status is prohibited under the FHA.

 NAA/NMHC commented on this issue in 2015, expressing our concerns that hostile environment harassment may include acts by housing providers as well as misconduct by other tenants. The final rule does address direct liability for the conduct of third parties, including outlining that housing providers may be held “directly or vicariously liable” under the Act.

Domestic Violence and Nuisance Laws

Apartment housing owners and operators should also pay close attention to this domestic violence guidance related to local nuisance laws. That’s because local ordinances often require owners to evict residents, which can discourage victims from reporting domestic abuse or other crimes and obtaining the emergency assistance they need.

NAA/NMHC support the implementation of housing protections for victims of domestic violence that balance the victims' needs with the practical business and legal limitations of housing providers. But the complex and sometimes conflicting nature of the guidance, as it relates to local laws, can be challenging for apartment firms. 

Limited English Proficiency (LEP)

In the rental housing context, when it comes to HUD’s Limited English Proficiency guidance discriminatory practices could include a language-related requirement for people of certain races or nationalities, posting advertisements that contain blanket statements such as “all tenants must speak English” or immediately turning away applicants who are not fluent in English. 

 A housing provider also violates the FHA when the provider’s policies or practices have an unjustified discriminatory effect – even when the provider had not intended to discriminate. Importantly, the new guidance is intended to apply to all rental situations and not just those associated with federal assistance.

 NAA/NMHC are supportive of HUD’s goal of making sure that persons with LEP have access to translations. We plan to continue to work closely with the department to help ensure that rental housing is available to them.
Ballard Spahr LLP has provided additional information on the LEP guidance.

Provided by NMHC as part of the NAA/NMHC Joint Legislative Program