In a press release today, HUD announced that its Office of General Counsel (OGC) has issued new guidance on the application of the Fair Housing Act to a housing provider’s consideration of a person’s limited ability to read, write, speak, or understand English. Specifically, the guidance addresses how methods of proof apply with regards to disparate treatment and discriminatory effects in fair housing cases in which adverse housing actions are based on limited English proficiency (LEP). According to the notice:
- A housing provider violates the Fair Housing Act if the provider uses a person’s LEP to discriminate intentionally because of race, national origin, or another protected characteristic.
- Because of the close link between LEP and national origin or race, justifications for language-related restrictions in a Fair Housing Act case must be closely examined to determine whether the restriction is in fact a proxy or pretext for race or national origin discrimination.
- Intentional discrimination may involve imposing restrictions, targeting individuals for unfair or illegal housing-related services, or failing to comply with the requirement to provide housing-related language assistance services to LEP persons.
- A housing provider also violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. That is, even policies that appear neutral on the surface that potentially restrict access to LEP individuals can be seen as in violation to the act.
- As with the nuisance guidance issued earlier this week, the LEP guidance covers the three steps used to analyze claims that a housing provider’s use of LEP results in an unjustified discriminatory effect in violation of the act, which includes: assessing the discriminatory effect; evaluating whether the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest; and evaluating whether there is a less discriminatory alternative.
Do you have concerns about whether or not your agency is compliant with federal fair housing law? Nan McKay and Associates can help. Contact firstname.lastname@example.org for more information.