The Fair Housing Act and Your CoopCould Your Membership Policies Get You in

Trouble?

A few things first...

• This presentation should not be used as a substitute for legal advice from an attorney.

• You are encouraged to find workshops on the Fair Housing Act in your community

• Fair Housing compliance requires a different way of thinking about membership, but not a loss of community

• Much of our time today will be for Q&A

Origins of the FHA• The Fair Housing Act was a major

part of the Civil Rights Act of 1968.

• Minorities were excluded from housing, and even liberal neighborhoods would have NIMBY attitudes keeping them segregated.

• Civil rights leaders saw that if homes and neighborhoods remained segregated, minorities would remain oppressed and communities would never really integrate

Federal Protected Classes

Race, Color, Nationality, Gender,

Family Status, Disability, Religion

But at the state and local level, there can be many other protected classes. For example, the state of Wisconsin, Dane County, and City of Madison all have additional protected classes, which are listed on the next page.

Activity:Identity Mapping

• Age

• Ancestry

• Citizenship

• Color

• Domestic Abuse Victimhood

• Domestic Partnership Status

• Family Status (incl. pregnancy)

• Gender Identity

• Genetic Identity

• Lawful Source of Income

• Marital Status

All Protected Classes in Madison

• Mental or Physical Disability

• Mental Illness

• Military Discharge Status

• National Origin

• Physical Appearance

• Political Beliefs

• Race

• Section 8 Participation

• Religion

• Sex or Gender

• Sexual Orientation

• Student Status

What is Discrimination?• Refuse to rent/sell housing, or to negotiate for

housing

• Make housing unavailable or deny a dwelling

• Set different terms, conditions or privileges for sale or rental of a dwelling

• Provide different housing services or facilities

• Falsely deny that housing is available for inspection, sale, or rental

• For profit, persuade owners to sell or rent (blockbusting)

• Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.

What is NOT discrimination?

• Refusing housing to someone who cannot meet legal membership requirements, or uphold their contract

• Evicting a member based on not fulfilling their contract

• Evicting a member for violating agreed upon policies

• Evicting a member who presents a clear threat to themselves or others

Is a “Theme House” discrimination?

• A “theme house” is a coop with a specific social focus for members

• Examples might be “Vegetarian”, or might be trickier - like “Queer House” “People of Color House” or “Interfaith House”

• If the house exists as a space to explore and discuss those identity issues, no problem

• If the house uses orientation, race, religion, etc as membership criteria, it’s probably not OK

Violations• Violations can come with actual

and punitive damages, paid by the coop or individual directors responsible

• Damages can be financial or related to policy and procedure

• Both membership policies and advertising have to comply with FHA

Non-obvious ViolationsRefusing housing to someone based on their

membership in a protected class is not the only kind of housing discrimination.

•Offering housing on different terms to different people (larger deposits, for example)

•Offering only certain units or rooms to different people

•Using language or imagery in ads or tours that would discourage someone from moving in or applying

Steering

Steering would mean guiding residents to specific locations based on a protected class, such as:

•Making families with children live in one area

•Forcing disabled persons to live in a certain area

•Only showing certain units to an applicant

Limiting and Discouraging

• You cannot advertise in a way that indicates a limitation or preference based on a protected class.

• You cannot make any statement that indicates a limitation or preference based on a protected class.

• You cannot threaten, coerce, intimidate or interfere with anyone exercising a fair housing right or assisting others who exercise that right.

Disabilities and the FHA• Who counts as having a disability?

• If you have a physical or mental disability that substantially limits one or more major life activities,

• Have a record of such a disability or,

• Are regarded as having such a disability

• Disabilities include:

• Hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS Related Complex, and mental retardation

• Major life activities include: walking, talking, hearing, seeing, breathing,

learning, performing manual tasks, and caring for oneself.

Protections and Accommodations

• You cannot refuse to let members make reasonable modifications to their rooms or common areas, at their own expense, to use the housing.

• You may require the member to agree to restore the property to its original condition when they move

• You may not refuse to make reasonable accommodations in rules, policies, or practices for the disabled person to use the housing.

Reasonable Accommodation

• Service animals and companion animals are not pets.

• A building with a "no pets" policy must allow a visually impaired tenant to keep a guide dog, and cannot charge a pet deposit.

• A coop that offers members parking should honor a request from a mobility-impaired member for a reserved space near her apartment to assure access.

• However, housing need not be made available to a person who is a direct threat to the health or safety of others or who currently uses illegal drugs.

MCC’s Example: Reasonable

Accommodations Policy• Some highlights of MCC’s policy on reasonable

accommodations:All current or prospective members can request reasonable accommodations.

• Houses can choose whether to ask prospective members if they require reasonable accommodations but must ask everyone if they choose to ask.

• People can request accommodations from either house membership coordinators or the staff. They must fill out an application form and send it to MCC.

• The Individual Issues Committee makes the final decision about what accommodation is approved. (They decide only what the reasonable accommodation is – if the accommodation is deemed “reasonable”, then MCC cannot deny it)

Exemptions to FHA• Exemptions were inserted to get the bill

passed, because support for civil rights was soft at the time

• FHA Exemptions:

• Owner-occupied buildings with less than four units

• Single Family homes not using a broker or advertising

• Retirement Communities (can exclude families with children)

• “Lodging,” or temporary housing operated by private clubs which limit occupancy to being a part of membership

So coops are exempt, right?

• NO! Courts have found that coops are not “private clubs” in the context of FHA

• Coops are permanent, not temporary housing

• Coops are open membership by definition, and not private clubs

• Even exempt housing cannot use discriminatory advertising or make statements to limit someone moving in

No, really. My coop is exempt, right?

1.If your co-op is not incorporated,

2.If the owner of your home lives there,

3.If your co-op is fewer than 4 units,

4.If your co-op never advertises,

5.If you do not take public funding or tax status,

Your co-op may fall into an exemption. If this is important to your co-op, you may wish to consult an attorney. This is a very rare situation, and you should assume that the law applies to your group.

Example: MCC is NOT exempt

• MCC is not exempt at the co-op or house level.

• MCC is incorporated, has open membership, has a non-profit tax status, is not owner-occupied or less than 4 units, and advertises regularly for members.

• Therefore, MCC and MCC houses must follow all applicable fair housing laws.

Example: Who is Responsible?

• The MCC, not the house, has the relationship with members and applications.

• The MCC can delegate the membership process to individual coop houses, but the coop board is still responsible.

• This means that the MCC is responsible for seeing that each house follows FHA guidelines.

• However, if someone presses a legal case, MCC is the legal party who gets sued.

• Thus, penalties for fair housing violations affect everyone in MCC, not just the members of one house.

Common Co-op Issues• Gender Balance Because the FHA doesn't

allow gender discrimination, your co-op can't reject a member because of gender, even to help balance a gender ratio. It can do outreach to the underrepresented gender.

• Children The co-op can't refuse to allow a member with a child to move in, require a different process than for any other applicant, or discourage them from moving in. It can have a conversation about the environment within the co-op.

How should we membership?

Here are some tips on how your co-op can preserve the core of your membership policies while avoiding any legal issues or accusations.

Marketing

• Make sure that your ads are free of discriminatory language or images.

• Make sure that the content of ads is relevant to the mission of the co-op.

• Avoid content related to the culture or demographics of the co-op.

Explain Your Process

• Explain the membership policy during tours

• Show every available room during tours

• Explain the application process during meetings

• In membership meetings - Clearly state the criteria for membership (and possibly forbidden criteria) before making decisions

Have Clear Criteria• Avoid any subjective reasons (“creepy”,

“won't fit in”, “won't be happy here”) and use specific reasons for rejections.

• Put the result of all membership admissions/rejections in writing (in some cities, you are required to put a denial of housing in writing).

• Have the co-op discuss objective ways to describe the traits that would make a good or bad member, and base criteria off of those.

Keep Records!• Without records of decisions, the co-op

cannot prove why a decision was made if someone files a complaint of discrimination.

• The record should be signed by your membership officer, and dated.

• The record should show the final vote (or test for consensus) for the decision.

• These don't have to be public records – but they should be available to defend the co-op's decision if needed.

Notify the Applicant• Consider a standard letter if an applicant is

rejected. MCC has a sample “Denial of Housing” form that you can use.

• Keep it short and factual – and give more specifics if requested. Something like “We can't offer you a room at this time”.

• If requested, give more detail on what criteria were involved in their rejection.

• Make sure that the letter lists all of the criteria that were NOT involved in the rejection. (“Our co-op does not make membership decisions on the basis of race, gender, religion...”)

Have a Co-op Appeals Process• Make sure that the applicant can appeal if

they feel that the co-op is incorrect.

• Base the appeal on the facts of why they were rejected.

• If the applicant feels that they can address the coop fairly within the co-op, they are less to bring a complaint from outside the co-op (eg - courts).

• Remember – the co-op may have been wrong!Listen and think honestly about the appeal.

In conclusion…• Fair housing laws were put into place to

protect people from discrimination and promote civil rights.

• As a cooperative housing organization, we must avoid discriminating against anyone based on their membership in a protected class.

• Keeping your process open, clear, and keeping good records can help protect you against complaints of discrimination.

Have more questions?

• You can contact Daniel Miller at Daniel@nasco.coop, or 734-945-2424

• You can contact MCC at 608-251-2667 and talk to the Member Services Coordinator, or email services@madisoncommunity.coop.

• You can learn more about Fair Housing laws at http://www.civilrights.org/fairhousing/laws/