Fair Housing News HUD RULE FORMALIZES DISCRIMINATORY IMPACT STANDARD. In This Issue

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1 Fair Housing News Serving the City of Philadelphia, Bucks, Chester, Delaware, Lehigh, Spring 2013 Montgomery and Northampton Counties The Fair Housing Council of Suburban Philadelphia newsletter was made possible by funding from: U.S. Department of Housing and Urban Development Delaware County Office of Housing and Community Development Montgomery County Department of Housing and Community Development The Philadelphia Foundation Bucks County Department of Community and Business Development The Patricia Kind Family Foundation Citizens Bank Foundation In This Issue HUD Issues Rule Formalizing Standard on Discriminatory Effects in Housing FHCSP 2012 Refugee Testing Audit: 25% Face Discrimination in Housing HUD Program Rule Protects LGBT Access to HUD Housing Programs Spotlight on FHCSP Leadership: Jennifer Perry Enforcement Update: Families with Children Denied Housing 2012 Accomplishments T HUD RULE FORMALIZES DISCRIMINATORY IMPACT STANDARD he U.S. Department of Housing and Urban Development (HUD) issued a final rule to formalize the national standard for determining whether a housing practice violates the Fair Housing Act as the result of discriminatory effect. The final rule became effective on March 18, HUD is statutorily charged with the authority and responsibility for enforcing the Fair Housing Act and has long interpreted the Act to prohibit housing practices with an unjustified discriminatory effect, if those acts actually or predictably result in a disparate impact on a group of persons, or create, increase, reinforce, or perpetuate segregated housing patterns because of race, color, religion, sex, handicap, familial status or national origin. This new regulation, referred to as the Disparate Impact Rule was designed to provide nationwide consistency and formalize HUD s long-held interpretation of the availability of discriminatory efforts liability under the Fair Housing Act. The final rule states that a practice is deemed to have a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin. There is a strong consensus among HUD and all the federal courts that the Fair Housing Act prevents not only intentional discriminatory housing practices but also those practices that have a disparate impact or the effect of discriminating on groups protected under the act, even if they do so unintentionally. To make a prima facie case of liability under a disparateimpact theory, one must show that the practice at issue or that the decisionmaking process as a whole has a disproportionate impact on members of a protected class. Even if such a business necessity is proven, the challenged practice will be found illegal under the Fair Housing Act if a less-restrictive alternative is available to the defendant that achieves the same business purpose. Through the issuance of this Rule, HUD is reaffirming its commitment to enforcing the Fair Housing Act in a consistent and uniform manner, said HUD Secretary Shaun Donovan. This will ensure the continued strength of one of (Continued on page 7)

2 Page 2 Spring 2013 FHCSP Board of Directors Lisa Gaffney President Deborah Cooper Vice President Jennifer Perry Treasurer Frankie Baughn Secretary Nelson Acevedo Michael Bannon Stephanie Cehelsky Kristi Dennis Joel Johnson, AICP, P.H.M Elizabeth Moreira, Esq. FHCSP Staff James Berry Executive Director Rachel Wentworth Assistant Director Lynne Ellison Office Manager/ Bookkeeper Megan Bolin Outreach & Communications Coordinator Emma Ward-Williams Test Coordinator Contact FHCSP Fair Housing Council of Suburban Philadelphia 455 Maryland Dr., Suite 190 Fort Washington, PA Phone: Toll Free: FAIR (3247) Fax: information@fhcsp.com FHCSP Refugee Testing Audit: 25% of Refugees Face Discrimination B etween July and October of 2012, the Fair Housing Council of Suburban Philadelphia (FHCSP) conducted a fair housing audit documenting discrimination on the basis of national origin in the region s rental housing market. The purpose of this study was to determine the extent to which newly arrived refugee home seekers face discrimination in their search for rental housing. According to Lutheran Children and Family Service, a local resettlement agency, over 800 refugees arrive in the Greater Philadelphia region each year with immediate housing needs. Refugees are persons who have been forced to leave their countries due to a well-grounded fear of persecution based on their ethnicity, religion, social class, political group, or race. Refugees arrive in the United States with legal status and immediate work eligibility. Even though most refugees become employed within the first few months after arriving, access to safe and affordable housing is a primary factor in determining whether a newly arrived refugee family is able to become self-sufficient. Refugees are currently assisted in their initial resettlement through resettlement agencies which offer assistance in finding housing, social services, access to education, and health care. While resettlement agencies assist in finding housing for new families prior to their arrival, housing options are limited by refugee resources and by the availability of willing landlords. The refugee rental audit consisted of 20 paired tests in Delaware, Montgomery and Bucks counties and the City of Philadelphia. In the case of this audit, the protected class tester posed as a case manager of a refugee resettlement agency attempting to secure housing for a Bhutanese refugee who had recently arrived in the United States. The control tester posed as a father calling on behalf of his son who was a college student and was moving out of his parents home. Both testers represented prospective home seekers who lacked credit, rental, and work histories. The test pairs were assigned the same desired move-in date and similar income and financial information, with the refugee tester being slightly more qualified. Testers made contact with the housing provider by phone to gather information about the availability of the advertised unit, rental price, security deposit, utilities, other fees, application process, and date the housing was available. The results showed that refugee home seekers can expect to face discriminatory treatment 25% of the time in the Greater Philadelphia area. This audit documents how housing discrimination keeps refugees from accessing decent, affordable housing in the neighborhoods of their choice. This kind of discrimination in housing leads to reduced access to jobs, education, and transportation for the families that are discriminated against, as well as perpetuating the segregated housing patterns found in our region. (Continued on page 3)

3 Page 3 Spring 2013 (Continued from page 2) Of the 20 total tests: 15 tests (75%) showed similar treatment 5 tests (25%) showed differences in treatment that favored the nonrefugee tester Of the 5 tests resulting in different treatment: 3 tests (15%) documented landlords refusing to rent to refugees but offering available housing to similarly situated non-refugees 1 test reflected different terms favoring the non-refugee tester 1 test documented discouraging statements only made to the refugee In three of the tests, the non-refugee tester was offered housing that was unavailable to the refugee tester. In another test, a refugee tester was told they would need a co-signer a requirement that was not necessary for the similarly situated non-refugee tester. In a different test, a refugee was discouraged from housing based on the landlord s concerns over the commute from employment to desired housing. The same provider mentioned this as a potential obstacle for the non-refugee tester who would be travelling a similar distanced commute from school to housing, but only the refugee tester was turned away. A copy of the complete report is available online: In response to the audit findings, FHCSP recommends the following: Continuing Education of Social Service Agencies Serving Refugees The foundation for a comprehensive education campaign requires that regional social service providers and case worker be trained to recognize discrimination early in the process and refer clients with fair housing issues to FHCSP or HUD for assistance. In addition, social service agencies can offer linguistically and culturally appropriate fair housing education and assistance to their clients. Compliance Education for Housing Providers Housing providers, especially small private landlords, require education and training on their obligation to offer housing on a non-discriminatory basis. All employees who have contact with tenants or prospective homebuyers should receive fair housing training and understand their responsibilities to conduct business in a non-discriminatory manner. Support for Fair Housing Enforcement Effective enforcement is essential to guarantee all home seekers the protection of the laws to which they are entitled. While significant progress has been made, there is much to be done as new challenges arise as the demographics of the region evolve. The U. S. Department of Housing and Urban Development must continue to vigorously enforce fair housing laws and must allocate adequate resources to effectively carry out their mandates. The U.S. Department of Housing and Urban Development (HUD) estimates that each year 2.5 million people are victims of housing discrimination. The Fair Housing Act prohibits discrimination in housing on the basis of: Race Color Religion National Origin Sex Disability Familial Status (Presence of children under 18 in a household, pregnant women or anyone securing legal custody of a minor child) The Fair Housing Act covers all housing related transactions, including: What Is Fair Housing? Rentals Sales Mortgage lending Homeowner s insurance Advertising Zoning & Land Use Appraisals If you or someone you know feels victimized by housing discrimination, contact FHCSP at: Phone: Toll Free: FAIR (3247) information@fhcsp.com FHCSP can help investigate your complaint and assist you in determining what action should be taken.

4 Page 4 Spring 2013 Who is FHCSP? Established in 1956, FHCSP is the oldest fair housing council in the nation FHCSP Mission To educate and advocate for equal access to quality, affordable housing for everyone in Eastern Pennsylvania Counties Served Bucks Chester Delaware Lehigh Montgomery Northampton Philadelphia Services FHCSP is a Qualified Fair Housing Enforcement Organization as designated by HUD, and additionally provides education for both consumers as well as the housing industry I HUD Program Rule Protects LGBT Access to Housing n a 2011 survey of 6,450 transgender and gender non-confirming persons, 19% reported having been refused a house or an apartment because of gender identity, and 19% reported having been homeless because of gender identity. A 2007 Michigan study found that same sex couples face bias and discriminatory treatment based on sexual orientation when trying to access rental housing. The Federal Fair Housing Act does not specifically include sexual orientation and gender identity as protected classes. However, a Lesbian, Gay, Bisexual and Transgender (LGBT) person's experience with housing discrimination may still be covered by the Fair Housing Act. In 2011, the Department of Housing and Urban Development (HUD) issued guidance treating discrimination based on gender nonconformity or sex stereotyping as sex discrimination under the Fair Housing Act. In 2012, HUD published new regulations prohibiting discrimination on the basis of sexual orientation, gender identity or marital status in their housing programs. As a result, housing providers that receive HUD funding have loans insured by the Federal Housing Administration (FHA), as well as lenders insured by FHA, are subject to the new rule and must ensure that LGBT persons have equal access of to their HUD funded services. HUD has already begun enforcing the new LGBT Rule. In January 2013, Bank of America settled a claim of discrimination against a lesbian couple in Florida. HUD found that the bank discriminated against the couple based on sexual orientation and marital status when it denied them a loan just one day before they planned to close on the house they were purchasing together. Under the terms of the agreement, Bank of America will pay a $7,500 fine and update their training program so that current and future employees are educated on the new requirements. General Equal Access Provision (HUD LGBT Rule ) The final rule, entitled Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity, requires that housing assisted by HUD or insured by FHA shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status. The 2012 HUD LGBT Rule applies to all HUD funded programs including housing vouchers, Public Housing, Community Development Block Grants, Housing Opportunities for Persons with AIDS, Supportive Housing for the Elderly and Persons with a Disability and FHA insured loans. The HUD LGBT Rule clarifies the definition of family and household to include LGBT inclusive language. The clarification is critical because the definition of family and household identifies who is eligible to participate in a HUD funded program. The rule also prohibits inquiries about an applicant or occupant s sexual orientation or gender identity for the purpose of determining eligibility or otherwise making housing available. It does not prohibit any individual from voluntarily self-identifying sexual orientation or gender identity. HUD funded programs can inquire about an applicant s or occupant s gender in situations where the housing provided, or to be provided, is a temporary, emergency shelter that involves the sharing of sleeping (Continued on page 7)

5 Page 5 Spring 2013 S Spotlight on FHCSP Leadership: National Design Expert Jennifer Perry ince 1998, Jennifer Perry has worked for the United Spinal Association providing continuing education to members of the American Institute of Architects. Jennifer is also certified by Pennsylvania s Department of Labor and Industry to provide instruction on accessibility requirements to code enforcement officials. Jennifer has served on the FHCSP Board of Directors since 2007 and is currently the Treasurer. Jennifer felt that serving on the Board provided an opportunity to be involved with a great organization that has stayed true to its mission to further fair housing. Lisa Gaffney, FHCSP Board President, commented that Jennifer s extensive knowledge of accessibility and fair housing design standards is unparalleled. We are fortunate to have such an expert on FHCSP s Board who is so committed to our mission of insuring fair housing rights throughout the region. Regarding the motivation for her commitment to fair housing, Jennifer responded that Since 1988, I have worked to improve the lives of people living with spinal cord injuries (our members at United Spinal, many of whom use wheelchairs for mobility). My interaction with our members absolutely motivates me to do what I can, both personally and professionally, to ensure that the built environment is accessible to people with disabilities. FHCSP asked Jennifer to comment on the progress she s seen regarding fair housing compliance in new construction housing in PA and Jennifer said that the adoption and enforcement of the Pennsylvania Uniform Construction Code in 2004 has made great strides in improving physical accessibility. The adoption of the International Building Code and the technical standard for accessibility ICC ANSI A117.1, has improved compliance with the Federal Fair Housing Act, because the accessibility requirements mandated by the Fair Housing Act have been built into the building code. The statewide mechanism to enforce the multi-family housing accessibility requirements has in turn, improved compliance with the Fair Housing Act. When asked where new construction multi-family developments should focus their efforts, Jennifer commented that exterior accessible routes and the availability of an accessible route from individual units to common areas (mailboxes, dumpsters, recreation facilities, clubhouses, etc.) is often overlooked. It is imperative that if a site has multiple buildings that are required to comply with the Fair Housing Act (or Chapter 11 of the PA UCC), there must be an accessible route that permits residents with disabilities to access these common areas from their individual unit. In 2012, Jennifer partnered with FHCSP to bring a design and construction training seminar to architects, engineers and code officials in the Lehigh Valley. Attendees reported that they had never attended a more comprehensive review on this topic and praised Jennifer s exceptional ability to tackle complex design issues. The training was in response to recent FHCSP testing which showed a noncompliance rate of 45% in new construction multi-family communities. Jim Berry commented We are grateful that Jennifer has made the commitment to share her time and talents with FHCSP. Having partners like Jennifer enables FHCSP to work more effectively towards our goal of eliminating housing discrimination. IMPACT Since its inception, FHCSP has eliminated discrimination at 47,007 housing units Thank you for all you have done for me. You were there for me during a tough time. It s really great to know that there is a Council out there like yours that cares about making sure everyone is treated fairly. - Discrimination Victim Between 2008 and 2012, FHCSP conducted 328 trainings and education events for 6,991 individuals Thank you very much for your presentation. This was the first time that Fair Housing was presented in a clear and concise way! - FHCSP Training Participant

6 Page 6 Spring Years of Fair Housing 2013 marks the 45th anniversary of the Federal Fair Housing Act. On April 11, 1968, President Lyndon B. Johnson signed the Civil Rights Act of Title VIII of the Act is commonly known as the Fair Housing Act. We must open the doors of opportunity. But we must also equip our people to walk through those doors. -President Lyndon B. Johnson After a few failed attempts at trying to gain approval for the fair housing bill, President Johnson finally succeeded in urging Congress to pass fair housing legislation, only after the tragic assassination of Rev. Dr. Martin Luther King, Jr. on April 4, The law needs help In the end, for laws to be obeyed, men must believe they are right. -Rev. Dr. Martin Luther King, Jr., 1958 A FHCSP Enforcement Update s of May 2013, the FHCSP testing program has opened over 47,007 units of housing that were otherwise unavailable to minorities, families with children, persons with disabilities and other protected classes. In early 2013, FHCSP finalized agreements resolving two different housing discrimination testing investigations. Settlements and damages recovered from housing discrimination complaints support FHCSP s prevention and education efforts to reduce regional instances of discrimination. FHCSP v. Ohler FHCSP filed a complaint with HUD against Montgomery County landlord Barry Ohler, Sr. FHCSP observed discriminatory ads placed on craigslist for an available apartment in Jeffersonville containing the phrases $750 a month for one person, $900 a month for two people and We would strongly prefer one person at this time. FHCSP conducted testing and found that Mr. Ohler refused to rent to a single mother and her minor child but offered the apartment to a two adult household. In addition, FHCSP found that Mr. Ohler offered a lower deposit and the possibility of reduced rent to a white tester but not to an African American tester. In late 2012, a settlement agreement was reached that included payment to FHCSP and fair housing training for Mr. Ohler. FHCSP v. Roescher, Karpinski & Karpinski The previous FHCSP newsletter highlighted a charge on a complaint filed by FHCSP against Philadelphia landlord, Christine Roescher, and owners, Maryanna Karpinski and Stanislaw Karpinski. The charge of discriminating against families with children was the result of a housing discrimination complaint filed by FHCSP alleging that Roescher discouraged and turned away families with children from housing and placed discriminatory advertisements online. One advertisement stated: This would be a good place for a mature couple. Too many stairs for young children. Roescher told an FHCSP tester posing as a mother with a 5-year-old child requesting a tour of the property Well, I most definitely wouldn t rent to people with children so there really is no use. Roescher showed the available apartment to an FHCSP tester posing as a married man with no children and informed him that the language in the advertisement was meant to deter families with children. Roescher told the FHCSP tester that she was a real estate agent but didn t represent herself as an agent for her employer. The owners and agent admitted no wrongdoing and have agreed to comply with fair housing laws. The respondents defended that they weren t discriminating against families with children but rather attempting to avoid conflicts between tenants. To resolve the matter before a hearing with the Administrative Law Judge, Ms. Roescher, Ms. Karpinski & Mr. Karpinski agreed to settle the complaint. The respondents admitted no wrongdoing but agreed to promote their commitment to equal housing in all rental documents, advertisements and applications forms (e.g. - Equal Housing Opportunity logo on all materials) and submit documentation of compliance with fair housing laws (e.g. - advertisements, family composition in units, rental policies and procedures) to HUD annually for a period of three years. In addition, they paid FHCSP $5,000 and Ms. Roescher must participate in fair housing training to ensure continued compliance.

7 Page 7 Spring 2013 HUD s March 2013 Disparate Impact Rule (Continued from page 1) the most important tools for exposing and ending housing discrimination. Under the final rule, disparate impact liability is established by a three-part, burden-shifting test: The charging party or plaintiff has the burden of proving that a challenged practice caused or will predictably cause a discriminatory effect; If the charging party or plaintiff satisfies this burden, the burden of proof shifts to the respondent or defendant to prove that the practice is necessary to achieve one or more of its substantial, legitimate, nondiscriminatory interests ; and If the respondent or defendant satisfies this burden, the charging party or plaintiff may still prevail if it can prove that the respondent or defendant s interests could be served by another practice that has a less discriminatory effect. The review process for the rule was expansive, transparent, and inclusive. HUD solicited, received, and incorporated input based on comments from individuals, fair housing and legal aid organizations, Attorney Generals, state housing finance agencies, public housing agencies, public housing trade associations, insurance companies, financial institutions, and numerous other entities. You can read the entire final rule online at HUD is maintaining well-established legal precedent and formalizing a nationally consistent, uniform burden-shifting test for determining whether a given housing practice has an unjustified discriminatory effect, said John Trasviña, HUD s Assistant Secretary for Fair Housing and Equal Opportunity. The openness of this process allowed us to implement a rule that can be consistently and fairly applied. Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity (Continued from page 4) areas or bathrooms. HUD programs can make inquiries about the applicant s or occupant s gender made for the purpose of determining the number of bedrooms to which the household may be entitled. The rule does not apply to private housing providers who do not receive HUD funding, however, there may be local antidiscrimination ordinances which protect LGBT individuals from housing discrimination. Individuals who have been denied access to HUD funded housing or FHA insured loans on the basis of sexual orientation, marital status or gender identity should contact FHCSP to report the program violation to HUD. HUD LGBT Rule Definitions Sexual Orientation: homosexuality, heterosexuality, or bisexuality Gender Identity: actual or perceived gender related characteristics Family and Household: includes persons regardless of actual or perceived sexual orientation, gender identity, or marital status FHCSP Volunteers Help Fight Housing Discrimination: Become a Fair Housing Tester! FHCSP is in need of fair housing testers to assist with investigating complaints of discrimination and uncovering illegal practices. FHCSP conducts testing investigations in the City of Philadelphia and Bucks, Chester, Delaware, Lehigh, Montgomery and Northampton Counties. As a trained tester, you will be called on to help identify possible instances of discrimination in housing, which will contribute to the health and wholeness of the community, and you will be paid for your efforts. For more information about testing, contact: Emma Ward-Williams ward@fhcsp.com (267) x3

8 Fair Housing Council of Suburban Philadelphia 455 Maryland Drive, Suite 190 Fort Washington, PA ADDRESS SERVICE REQUESTED NONPROFIT ORG. U.S Postage PAID Media, PA Permit No. 684 The Nation s Oldest Fair Housing Council Founded in FHCSP Highlights: Expanding Housing Opportunity to All FHCSP is proud to report on its 2012 accomplishments, which include: Directly educating and serving 1,353 individuals, including 119 victims of housing discrimination Training 1,261 individuals at 51 educational events and webinars Providing 15,760 individuals with educational guides, brochures, or newsletters Conducting 135 testing investigations Reports on refugee discrimination, zoning and land use impediments, and new construction violations Filing or referring 46 housing discrimination complaints to enforcement agencies Settling 3 complaints of housing discrimination Opening 12 units of housing to low-and moderate-income consumers Recovering $6,650 for victims of housing discrimination Thanks to the MANY volunteers, testers, individual donors, private Foundations, and Federal, State, and local funders who partnered with FHCSP in 2012 to support equal access to housing in PA! We are grateful for your continued support.