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REVISED - Legal and Housing Issues for Homeless Shelters

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Elizabeth Bagby

on 27 May 2015

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Transcript of REVISED - Legal and Housing Issues for Homeless Shelters

Develop a Reasonable Accommodation policy and be sure all staff, particularly intake staff, are aware of it.

Example: Just because a participant does not say “reasonable accommodation” does not mean that they are not protected by FHA.

Assess your facility’s accessibility, make whatever improvements you can afford to make.



Disability
Review all policies, procedures, rules and application criteria for unintended discrimination and make sure that they are not discriminatory on their face. Enforce all rules and policies consistently among all residents – deviations could be seen as discrimination, even if not intended to be.

Base admission to your program on very clear requirements that do not discriminate against a protected class.

Establish a consistent referral protocol. Don’t assume you know what people need or what would be ‘best for them’.

Make sure employees know how to document any issues related to fair housing problems.

Ensure employees obtain regular fair housing training.

Seek technical/legal advice as issues arise.
In General
It may be a violation of fair housing laws to compel residents to attend religious services.

If the provider receives federal funding, they are not permitted to make housing or shelter contingent on attendance at religious services

Even proselytizing may be considered a form of “coercion” prohibited by fair housing laws
Religious organizations and nonprofits operated by them are permitted to reserve housing or shelter to members of the same religion or to give preference to their members.

This does not mean a religious entity can discriminate against any other protected class.
Religious Organizations
Housing and shelter programs should have policies that prohibit residents from harassing, intimidating, coercing or threatening other residents because of their inclusion in any protected class.

Do not allow a “hostile living environment” for residents



Protecting Residents
Applicants should generally be screened, evaluated and selected in chronological order, and screening documentation should be kept on file for at least two years.

Providers can make their own screening criteria as long as it isn’t discriminatory and is applied consistently.



Put standardized screening/intake criteria in writing and use them to evaluate all applicants.

Use standardized forms.

Train staff in how to conduct a screening interview.

Examples of fact-based criteria include:

Rental history -- Including stays in shelters, hospitals and other alternative housing arrangements.

Amount of income -- Providers cannot discriminate against applicants based on their source of income, such as SSDI or child support, so long as the income is not derived from illegal activity.

Observable behavior -- An applicant can be rejected for acting in a violent manner towards a staff person handling the screening/intake.

Recommendations by identified referral agencies programs -- Such as social services, mental health, law enforcement, etc., so long as these programs do not have discriminatory practices and the recommendations are based on objective criteria.

Transitional housing and shelter programs should establish clear, objective and consistent written admissions criteria for new applicants. These criteria must be based on facts and not assumptions made about applicants.

Admissions
Has to have jurisdictional merit (complainant has to be in a protected class)

Anyone in a protected class or associated with a protected class has standing to file a complaint.

Filed within one year with HUD

The Investigators are a neutral party and do not represent the complainant

Complainant has the burden to show that discrimination occurred.

Investigation/conciliation in a structured time frame



Fair Housing Complaints
Accessible building entrance on an accessible route

Accessible public and common use areas

Usable doors

Accessible route into and through the covered units

Light switches and other environmental controls in accessible locations

Reinforcements in walls for grab bars

Usable kitchens and bathrooms

Covers multi-family housing (4 or more units) constructed for first occupancy (never before used for any purpose) after March 13, 1991.
Design and Construction Requirements under the Federal Fair Housing Act


While the housing provider is not expected to provide services they do not routinely offer (housekeeping, showering assistance, meals, transportation, assistance with pushing a wheelchair, etc.), they cannot reject a resident solely for having such needs.

A Note on Reasonable Accommodation

Examples:

Allowing service or emotional support animals regardless of “no pets” policy
Certification is not necessary

Individual who cannot stand in line for a “first-come, first-served” admission policy can take a number and sit during waiting period.

Disabled resident who must leave by 9:00 am can request additional time in the morning because it takes longer to eat, shower, and dress.

If the disability prevents an individual from performing chores an alternative or reduced chore schedule could be appropriate.



Reasonable Accommodation
At this time the only programs explicitly authorizing disability preferences under federal statute or executive order are:

Housing Opportunities for People with AIDS (HOPWA)
Section 811
McKinney Act Shelter Plus Care
Emergency Shelter Grant (must be in the language of grant)
Supportive Housing Program (must be in the language of the grant)

Other funding programs like Low Income Housing Tax Credit, public housing, Section 202, Section 236, Section 8, CDBG and HOME Investment Partnership programs do not permit recipients to favor specific kinds of disabilities.
Disability Preferences
Section 504 of the Rehabilitation Act:

“No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.”

Prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors.

The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in title I of the Americans with Disabilities Act.

The Rehabilitation Act of 1973

If a client has privacy or safety concerns, the provider must take reasonable steps to address those concerns

Bathroom partitions/curtains

Separate changing schedule

Separate bathroom/dressing area times

Stalls with doors/locks, separate shower stalls

However, privacy policies cannot isolate/segregate clients based on gender identity
Privacy
Asking a client their sex is permissible, and if the provider is uncertain of client’s sex or gender identity, the provider can inform the client that shelter is based on the gender with which the individual identifies.

No legitimate reason to request documentation of a person’s sex, though, and provider has no basis to deny access to a single-sex emergency shelter solely because the provider possesses identity documents indicating a different sex than the gender with which the client identifies.

Shelter CANNOT seek information or documentation concerning a person’s anatomy or medical history, or base eligibility for shelter on appearance/behavior that does not conform to gender stereotypes




Inquiries Related to Gender
DOJ:

For the purpose of assigning a beneficiary to sex-segregated or sex-specific services, best practices dictate that the recipient should ask a transgender beneficiary which group or service the beneficiary wishes to join.

The recipient may not, however, ask questions about the beneficiary’s anatomy or medical history or make burdensome demands for identity documents.



DOJ:

In deciding how to house a victim, a recipient that provides sex-segregated housing may consider on a case-by-case basis whether a particular housing assignment would ensure the victim’s health and safety.

A victim’s own views with respect to personal safety deserve serious consideration.

The recipient should ensure that its services do not isolate or segregate victims based upon actual or perceived gender identity.

A recipient may not make a determination about services for one beneficiary based on the complaints of another beneficiary when those complaints are based on gender identity.
Violence Against Women Reauthorization Act of 2013 (“VAWA”) prohibits discrimination on the basis of sexual orientation or gender identity.

Concerning recipients of VAWA grants to provide housing for victims of domestic violence, the DOJ says:

A recipient that operates a sex-segregated or sex-specific program should assign a beneficiary to the group or service which corresponds to the gender with which the beneficiary identifies, with the following considerations:


After the HUD final rule, in response to public comments, HUD realized it needed to provide further guidance to single-sex emergency shelters.

CPD-15-02 was issued on February 20th, 2015: “Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities”

The guidance first begins with some background on how other agencies treat the subject.
Providers who house DV victims and their children should not refuse to house women with sons under 18.

If there are not shared sleeping or bathing areas or shared bathrooms, such policies are probably illegal. Where there are shared sleeping or bathing areas, providers should consider if there is any way to modify floor plans to provide privacy.

If a family is turned away because of teenaged sons and they are not provided with alternative lodging/necessary services, that family would be considered a victim of discrimination.

Sexual Harassment is classified under Sex discrimination when it pertains to FHA.

Harassment includes:

Comments, Touching, and Assault

Creating or Allowing a Hostile Environment

Including: Vendors, Guests, and Neighbors


Examples of Sexual Harassment:

Denial of services until a sexual relationship is established

Requiring/Requesting sex for rent

Requiring/Requesting sex for maintenance

Sexual Harassment

It is alright to notice cultural differences

A heavy accent does not mean the person is uneducated or does not understand

Non-native English speakers may sound rude and demanding when they do not intend to

Do not lump groups together and resist the temptation to stereotype

Choose vocabulary wisely and avoid negative phrasing

Watch for signs that you have not been understood

Participate in the communication process

Things to consider when working with LEP persons:

www.lep.gov
Self assessment tools
Development of a language access plan

www.census.gov
Current Demographics in your area
LEP Resources

Oral interpretation services
Bilingual staff
Telephone interpretation lines
Written translation services
Notice to staff and recipients of LEP services available
Referrals to community liaisons proficient in language of LEP persons

Language Access Plan and Providing Appropriate Language Assistance
If the population within the service area is:

More than 1,000 people in ANY individual language group who speak English less then well,

or 5% of the eligible population (if at least 50 people),

then written translation of certain documents should be undertaken.
Guidelines for Written Documents

Asking about an applicant’s religious beliefs
Refusing to rent to people of other faiths or atheists
Giving preference to applicants/tenants of one’s own faith (differential treatment)
Advertising for applicants of a particular religion

Race:
Physical and cultural characteristics related to one’s ancestry and ethnicity
Ex.) Black/African-American, White/Caucasian, Asian, Native American/Alaskan Native, Native Hawaiian/Pacific Islander

Color:
Skin tone
Ex.) Preference towards people with lighter skin than other of the same race who have darker skin
Discrimination can occur within one’s own race



If the housing provider advances a valid business necessity for the policy or practice, an examination will be made as to whether:

The policy, practice, or rule is a valid predictor of future conduct.

A demonstrated health or safety reason exists.

There is a less discriminatory alternative that serves the same purpose.


It is very important that housing and shelter providers review all of their policies, rules, procedures, eligibility criteria, etc. to determine if there are policies and practices, however unintentional, which could result in members of a protected class being treated differently.


For people with Disabilities:

No medical equipment – for a person with a disability this may preclude them from housing opportunities (wheel chairs, etc.)

Requiring that all program participants work may impact someone who cannot work.




Rules can seem non-discriminatory on their face but have a “disparate impact” or have a greater effect on people in protected classes

Such rules are discriminatory unless there is no other feasible way (least restrictive alternative) to address legitimate business purpose


Disparate Impact/Unintentional Discriminatory Effects
Intentional Discrimination


Even when programs, housing and shelters are not covered by the FHA or other fair housing laws, they are still covered by laws of public accommodation (Americans with Disabilities Act (“ADA”)Title III, state and local laws)
Fair Housing v. Public Accommodation
Housing is vital to everyone’s livelihood.
Fair Housing is a federal mandate.
Encourages diverse communities.
It is a law that protects all of us.
Where can I find the complete law?
WWW.HUD.GOV


Why is this Important to Me?



The request may be made by or on behalf of the tenant at any time and in any manner.

It is recommended that requests be documented in writing.

The request must be related to the tenant’s disability and the request must be reasonable.

The landlord may request documentation if:
The disability is not readily apparent.
It is not obvious that there is a relationship between the modification or accommodation request and the tenant’s disability


Making Reasonable Modifications and Accommodation Requests
A housing provider must allow a reasonable accommodation in rules, policies, practices, or services if it may be necessary for a tenant to use the housing on an equal basis with nondisabled persons.
Changes to the physical structure of a dwelling for a person with a disability.

A housing provider must allow a reasonable modification to a dwelling or common use areas at the tenant’s expense if it may be necessary for the tenant to fully use the housing.

Wheelchair ramps
Installing grab bars in shower and near toilet
Widening doorways
Installing curb cuts
Moving light switches and electrical outlets

Federally-funded housing providers have to pay for reasonable modifications.

Housing providers which do not receive federal funds are typically not responsible for the cost of the modification.

Reasonable Modifications
Title III covers public accommodations and commercial facilities

Title III does NOT cover entities controlled by religious organizations

Title III can/does include homeless shelters
Americans with Disabilities Act, Title III
Federal Fair Housing Act protects:

Individuals with a physical or mental impairment that substantially limits one or more major life activities

Individuals regarded as having such an impairment

Individuals with a record of such impairment



Physical or mental disability that substantially limits one or more major life activities, including but not limited to:

Hearing, mobility and visual impairments
Cancer
Chronic mental illness
HIV/AIDS
Mental retardation
Substance abuse or alcoholism
(excluding current abuse)
Autism
Diabetes
Epilepsy
Assumption that shelter will place a client in a facility that corresponds to the gender with which the person identifies, taking health and safety concerns into consideration.

A client’s own views on health and safety should be taken into consideration, however. For instance, if a client, due to health and safety concerns, asks to be placed based on the client’s sex at birth, even if different from the sex the client identifies as, the assumption is that this request will be honored.

Assignment should not be made based on complaints of others when the sole basis of the complaint is the client’s non-conformance with gender stereotypes



Assignment


“Gender identity”: actual or perceived gender-related characteristics

Inquiries into gender identity are permissible in certain circumstances under the rule, however:

“This prohibition on inquiries does not prohibit lawful inquiries of an applicant or occupant's sex where the housing provided or to be provided to the individual is temporary, emergency shelter that involves the sharing of sleeping areas or bathrooms…” – 24 CFR 5.105(a)(2)
Equal Access Rule
Prohibits the inquiry of Orientation and Gender (Except where otherwise lawful – we’ll get to this in a minute)

What does this cover? All aspects of housing that receive federal money.
Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity
www.hud.gov/lgbthousingdiscrimination
The US Department of Housing and Urban Development

Final Rule - February 3rd, 2012 – “Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity” (“Equal Access Rule”)

Protected classes under local ordinances in Lexington, Louisville, Covington, Vicco, Frankfort, Morehead, and Danville.

Protects lesbian, gay, bisexual, and transgender (LGBT) individuals and families, as well as heterosexual people.

Domestic Violence
Victim is denied housing or otherwise treated differently by the landlord based on a history of victimization or stereotypes of victims

Victim is evicted due to criminal activity on property related to the assault

Victim is held liable for property damages caused by perpetrator

Victim needs out of the lease for safety reasons

Victim needs to be transferred to another unit or property owned by landlord for safety reasons

Perpetrator is a cohabitant of the victim - victim wishes to stay in home and remove perpetrator from lease
HUD’s Four Factor Analysis:
Ensuring Language Access

National Origin discrimination is unfavorable treatment based on a persons region or country of origin.

Discriminatory behaviors are illegal even if the parties are of the same protected class.
Examples:

For People who are Transgender:

Requirements to take public showers before entering the general population

Giving urine samples in front of shelter staff

Having to stay with “gender of origin”


Community House, Inc. v. City of Boise
, 490 F. 3d 1041 (9th Cir. 2007) – FHA applies to shelters, and the only permissible discrimination is for safety concerns or beneficial discrimination.




Renting
Selling
Advertising
Financing
Making Statements
Steering

Apartment Living
Single Family Homes
Mobile Homes/Parks
Condominiums Communities
Senior Citizen Housing
Vacant or Unimproved Lots
Shelters


FHA Covers all Aspects of Housing


Race
Color
Sex
Religion
Familial Status
Disability
National Origin

Prohibits discrimination in housing based on protected classes
Enacted in 1968 by President Lyndon B. Johnson after the death of MLK JR
Comprehensively amended in 1988 to cover all 7 protected classes:


The Fair Housing Act
Title IV of the Civil Rights Act of 1964

Title IV is federal law that protects individuals from discrimination based on their race, color, or national origin in programs that receive federal assistance

All programs that receive federal assistance must work to ensure language access to LEP persons

LEP persons- Individuals who, as a result of national origin, do not speak English as their primary language

May have limited ability to read, speak, write, and/or understand English



Limited English Proficiency
Discrimination during the application process:
Denial of housing based on protected class status, providing false information, steering people to facilities based on their protected status, assigning or segregating occupancy based on protected status, expressing or publishing a discriminatory preference or limitation. Applicant screening decisions must be based on consistent fact-based criteria.

Establishing policies or rules that "target" specific protected classes
: Instead of a rule that "children may not run in the facility", set a rule stating "running is not allowed in the facility."

Not treating all residents similarly
: Targeting certain protected class members for different treatment in terms of procedures, rules, rental criteria, fees or charges, repairs, access to common facilities, or other aspects of daily life.

Disability discrimination
: Generally, housing and shelter providers may not inquire about the existence or the severity of an applicant’s or resident’s disability, and they may not require applicants or residents to waive the confidentiality of medical records. Housing providers must provide reasonable accommodations and provide or allow reasonable modifications for people with disabilities. However, in some situations, a funding source may require specific preferences (for example, housing only for people with HIV/AIDS) – check with your funding source before setting any disability preferences.

Harassment, intimidation, threats and coercion
: Providers have a legal responsibility not only to refrain from these activities themselves, but to protect their residents from harassment by other residents.

Termination of housing for discriminatory reasons
: Terminations that are not based on factual violations of the residency agreement could be construed as discriminatory, regardless of whether that was the provider’s intent. Termination should always be based on objective fact-based behavior.

Retaliation
: Providers may not retaliate against applicants, clients, or residents for exercising their fair housing rights. Exercising fair housing rights includes filing complaints of discrimination. It is also prohibited to retaliate against neighbors, staff, or other residents who participate in a fair housing complaint investigation.


Award of compensatory damages to victims of discrimination

Orders for comprehensive corrective actions

Awards of punitive damages to victims

Civil penalties to the government

Design and Construction Cases:
Retrofitting

Remedies Following Violations of Law under FHA
There are additional protected classes under local ordinances:

Gender Identity
Sexual Orientation

Lexington, Louisville, Covington, Vicco, Frankfort, Danville, and Morehead

What is
?
Discrimination
Classes of Discrimination
Race and Color
Religion
National Origin
Familial Status
Sex, Sexual Harassment and Domestic Violence
Sexual Orientation/Gender Identity
Disability
Number of LEP persons served or encountered in the eligible service area
Frequency of contact with the program
Importance of service, information, program, or activity
Costs versus resources and benefits
HUD guidelines note that no matter how few LEP persons the recipient is serving, oral interpretation services should be made available in some form.
With this guidance from the DOJ in mind, HUD created guidance for single-sex shelters as well...
HUD Guidance for Single-Sex Emergency Shelters
There are other laws that protect the disabled from discrimination in housing, however...
A complainant can also file a lawsuit under the FHA within two years.

Documentation:
It is important for non-profit housing and shelter providers to keep applications, resident files and other housing-related records on file for a long enough period to be able to respond to housing complaints and/or lawsuits.
Best Practices
DOCUMENT EVERYTHING
Jaron P. Blandford
(859) 231-8780, ext. 252
jblandford@mmlk.com
@McBrayer_Law
www.mmlk.com
Any Questions?
Homeless Shelters and the

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