How to Avoid Discrimination Claims from LEP Individuals

National origin discrimination often involves individuals with limited English proficiency (LEP).

The tax credit rules make clear that if any units at your site aren’t “for use by the general public,” those units aren’t eligible for tax credits. To comply, your units must be “rented in a manner consistent with housing policy governing non-discrimination, as evidenced by…the HUD Handbook” [26 CFR §1.42-9]. Chapter 2 of the Handbook outlines the Fair Housing Act’s (FHA) nondiscrimination requirements.

Fair housing is the right to choose housing free from unlawful discrimination. And the FHA is the legislation that protects people from discrimination in housing based on race, color, religion, sex, national origin, familial status, and disability. Specifically, the FHA’s national origin protections apply to discrimination based on a person’s ancestry, country of birth outside the United States, and the language he or she speaks, according to HUD.

Individuals who don’t speak English as their primary language and who have a limited ability to read, speak, write, or understand English can be limited English proficient, or “LEP.” National origin discrimination often involves immigrants or non-English-speaking individuals, but it can also involve native-born U. S. citizens based on their family ancestry, the agency says.

HUD’s LEP Guidance

In 2016, HUD published “Office of General Counsel Guidance on Fair Housing Act Protections for Persons with Limited English Proficiency (LEP).” This guidance discussed how fair housing law applies to claims of housing discrimination brought by people because they do not speak, read, or write English proficiently. Nearly 9 percent of the U.S. population—more than 25 million people—don’t communicate proficiently in English.

Federal fair housing law prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect. Though people with limited English proficiency aren’t a protected class under the FHA, the law bans discrimination based on national origin, which is closely linked to the ability to communicate proficiently in English. Housing providers are therefore prohibited from using limited English proficiency selectively or as an excuse for intentional housing discrimination. The law also prohibits landlords from using limited English proficiency in a way that causes an unjustified discriminatory effect on people based on their national origin. For example, a landlord can’t refuse to show or rent the housing just because the prospect cannot speak English.

If your site participates in the Housing Choice Voucher program or receives other HUD financial assistance such as HOME funds, your site has greater obligations to provide meaningful access to your LEP applicants and beneficiaries under Title VI of the Civil Rights Act of 1964. You’re required to provide leases translated into the native language of the applicant or tenant and must also provide some form of translation for effective communication. The translation services and translated leases aren’t required of landlords who participate in Section 8 or strictly LIHTC programs.

HUD recently announced a settlement with an owner and management company based in Sacramento, Calif., resolving allegations that they violated the Fair Housing Act and Title VI of the Civil Rights Act of 1964. In particular, the owner and management company allegedly failed to provide language access services to Vietnamese residents at their HUD-assisted site and retaliated against a staff member for advocating for residents with limited English proficiency to receive oral interpretation services and translated vital documents.

Under the terms of the settlement, the owner agreed to pay $10,000 to the employee who filed the complaint. The owner will also provide $20,075 in compensation to residents of the property, with each household receiving $275 as either a check or as a rent credit. In addition, a notification letter will be sent to each household in their primary language notifying them of the agreement, including that the owner will provide LEP applicants with free oral interpretation services and translated documents when required by law [HUD v. FPI Management, FHEO case: 09-20-2040-8].

What’s Considered a Violation?

Unjustified business policies or practices resulting in a discriminatory effect on protected classes in relation to LEP individuals may result in a violation of the FHA. In the LEP guidelines, HUD says that housing providers may face fair housing claims for intentional discrimination for housing-related practices such as an owner’s refusal to rent or renew a lease, that involve a person’s limited ability to speak, read, write, or understand English. Examples include:

• Applying an English-speaking language-related requirement to 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.

HUD also will look closely at language-based restrictions to make sure they’re not simply an excuse or pretext to cover up discrimination based on race or national origin. In some cases, LEP persons may speak English well enough to conduct essential housing-related matters or have a household member who can provide assistance as needed, so a blanket refusal to deal with LEP persons is probably not motivated by genuine communication concerns. If the housing provider or resident can access free or low-cost language assistance, HUD says that any cost-based justifications for refusing to deal with LEP persons would also be immediately suspect.

HUD also said that a person’s accent and his national origin are inextricably linked, so it’s discriminatory to treat someone differently because he speaks with an accent—even if he speaks fluent English. According to HUD, rejecting an applicant or tenant who speaks good English with an accent is just as discriminatory as rejecting him because of national origin. The same is true of policies or practices that treat people with certain accents differently than people with other accents.

Pitfalls to Avoid

Demonstrate that your community has a zero-tolerance policy against discrimination based on national origin—and all the other characteristics protected under federal, state, and local laws. Put your written policies into practice by conducting periodic training sessions highlighting some of the pitfalls that can lead to fair housing trouble. Here are some basics:

Avoid stereotypes. Instruct staff members to avoid prejudging prospects or applicants based on their names, appearance, clothing, and other personal characteristics. Treating people differently because of their physical features, mannerisms, clothing, or speech could trigger a fair housing complaint based on race, religion, or national origin. Even the appearance of unfavorable treatment based on how an applicant looks, speaks, or dresses could lead to a discrimination claim.

Avoid asking people about their accents or where they come from. You may think it’s just casual conversation, but people may be unsure as to why you’re asking, and you could inadvertently cross the line by asking further questions or making comments that touch on race, national origin, and other protected classes.

For example, in February 2014, a Massachusetts court ruled that a real estate broker violated fair housing law when he casually asked a prospect about her national origin. It happened during a meeting with a married couple when the broker—whose wife was Brazilian—asked the wife where she was from. The woman responded that she was from Venezuela, but she later said the question triggered extreme emotional distress. Unbeknownst to the broker, the wife thought they had just lost a rental opportunity because of her national origin and she feared that it was happening again. The couple filed a complaint with the Boston Fair Housing Commission, which ordered the broker to pay more than $60,000 in damages, penalties, and attorney’s fees.

On appeal, the court affirmed that the broker violated fair housing law by asking about the prospect’s national origin, but reduced the amount of damages. Even though his question had no discriminatory intent and didn’t result in discrimination against the couple, the question itself was a violation of fair housing law [Linder v. Boston Fair Housing Commission, February 2014].

Avoid linguistic profiling. Warn staff against treating prospects differently because of how they sound—for example, if they have an accent or difficulty speaking English—particularly when answering the phone. Treating someone differently because of the way she speaks is called “linguistic profiling,” a practice that could lead to fair housing trouble. The same goes for what’s known as “email profiling,” treating people differently because their name suggests that they—or their ancestors—are of a particular racial, religious, or ethnic group.

Avoid steering. When discussing vacancies with prospects, you should be guided by their stated requirements—not by your preferences or assumptions about where they would prefer to live in your site. Steering is the practice of encouraging or discouraging someone from living in your site or parts of your site based on a protected characteristic. Attempting to limit the housing choices of applicants or residents based on national origin, such as showing members of some ethnic groups only units in certain parts of your site, instead of any unit that meets their criteria, is a violation of fair housing law.