​​​​Mark L. Busch, P.C. © 2019
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Discrimination Claims

August 5, 2017

 

 

 

 

 

 

The information provided below relates to residential tenancies in Oregon and is general in nature. It is not intended to apply to specific factual scenarios and is not intended as legal advice. Each case is different and I encourage my clients to call me if they have questions concerning a particular tenant.

 

 

General Discrimination Issues

 

Federal, state and some local laws prohibit discrimination in rental housing. The Federal Fair Housing Act (“FHA”) prohibits discrimination based upon race, color, national origin, religion, sex, familial status, and disability. State fair housing statutes also protect against discrimination based upon race, color, sex, marital status, source of income (excluding Section 8), familial status, religion, national origin, and disability. Some local ordinances (e.g., Portland and Eugene) protect against discrimination based upon age and sexual orientation.

 

As such, and as an initial matter, landlords should avoid asking any questions on rental applications related to these prohibited areas. The sole exception may be the age of a potential applicant if the rental housing qualifies as a “55 or older” facility under the Federal Fair Housing Act. The qualifications for “55 or older” housing are very strict and you should always check with your attorney before asking age-related questions on your rental application.


During a tenancy, landlords must also be careful to avoid anything that might be interpreted as discriminatory. For example, rent increases should typically be made across the board to avoid discrimination allegations. Another thing to avoid is the uneven enforcement of your rules and regulations. Every tenant should be held equally accountable to follow the rules, and appropriate notices should be issued to every tenant that violates the rules to leave no room for any discrimination claims.


“Familial Status”


A common discrimination claim is “familial status.” This arises when a landlord refuses to rent to tenants who have children, or perhaps to an extended family who will occupy the rental unit. Investigators for the Department of Housing and Urban Development (“HUD”) are particularly vigilant on this particular issue.


While you are certainly entitled to ask applicants who will be occupying the rental unit, care should be exercised in framing the question. The applicants should simply be informed that occupancy of the rental unit is limited to two persons per bedroom, plus one additional person. Under Oregon law, a landlord may adopt an occupancy guideline as long as the guideline is not more restrictive than two people per bedroom and is otherwise “reasonable.” Reasonableness is determined on a case-by-case basis and may include consideration of the size of the bedrooms, the overall size of the dwelling unit, and any discriminatory impact the occupancy limit may have.


However, even though state law allows reasonable occupancy limits, be aware that there is no guarantee that federal HUD investigators would defer to state law. While HUD may take Oregon law into consideration when evaluating a discrimination complaint, it is not bound by state law.


“Reasonable Accommodation”


The Fair Housing Act also prohibits acts that “discriminate against any person… in the provision of services or facilities in connection with [a] dwelling, because of a handicap of that person or any person associated with that person.” The FHA defines discrimination as “a refusal to make reasonable accommodation in its rules, policies, practices, or services, when such accommodations may be necessary to afford a [disabled] person equal opportunity to use and enjoy a dwelling.” The FHA obligates landlords to make “reasonable accommodations” in the “rules, policies, practices, or services,” necessary to afford handicapped persons “equal opportunity to use and enjoy a dwelling.”
This means that if a tenant requests an “accommodation” for his or her handicap, the landlord is obligated to provide it unless it causes a financial or administrative burden. A typical example is when a handicapped tenant requests a parking space close to his or her apartment to make access to a vehicle easier. In most cases, the landlord would need to accommodate this request.


However, landlords need not provide housing to individuals whose “tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.” A good example of this would be if a tenant requested to keep a pit bull as a “companion animal.” In most instances, the landlord would be justified in rejecting this request since pit bulls are generally considered a dangerous breed.


HUD Investigations


HUD is the agency charged by the federal government to investigate alleged discrimination claims. If a tenant files a complaint with HUD, you can expect to be visited by a HUD investigator at some point. The investigator will need to question you and/or your managers, along with the tenant, concerning the discrimination claim. The investigator will also review your records.


In the end, the investigator will make a recommendation as to whether the claim should be pursued by the agency or not. If, after a thorough investigation, HUD finds no reasonable cause to believe that housing discrimination has occurred or is about to occur, HUD will issue a determination of "no reasonable cause" and close the case. If the investigation produces reasonable cause to believe that discrimination has occurred or is about to occur, HUD will issue a determination of "reasonable cause" and charge the landlord with violating the law.


After HUD issues a charge, a HUD Administrative Law Judge (“ALJ”) will hear the case unless either party elects to have the case heard in federal civil court. If the ALJ finds that housing discrimination has occurred or is about to occur, the ALJ can award a civil penalty of up to $16,000 per violation for a first offense, in addition to actual damages for the tenant, injunctive or other equitable relief, and attorneys' fees.


If you are ever the subject of a HUD investigation, it is time to retain an attorney. A well-versed landlord-tenant attorney can often deflect the investigation and convince the agency to issue a “no reasonable cause” determination. And, if not, it is essential to have an attorney to make a reasoned and well-planned presentation to the Administrative Law Judge.

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