Three Ways to Prepare for Covert Fair Housing Testers

January 21, 2020

The de Blasio administration recently released a draft report that outlined plans to promote fair housing in New York City for the next five years. The impetus for the “Where We Live” report began during the Obama administration when the federal government wanted to strengthen enforcement of the Fair Housing Act. Under the 2015 Affirmatively Furthering Fair Housing rule (AFFH), the federal Department of Housing and Urban Development (HUD) moved to require states and cities to study how their housing policies affect segregation.

The de Blasio administration recently released a draft report that outlined plans to promote fair housing in New York City for the next five years. The impetus for the “Where We Live” report began during the Obama administration when the federal government wanted to strengthen enforcement of the Fair Housing Act. Under the 2015 Affirmatively Furthering Fair Housing rule (AFFH), the federal Department of Housing and Urban Development (HUD) moved to require states and cities to study how their housing policies affect segregation. But the Trump administration stalled that effort, so New York City launched its own segregation study in 2018.

As part of the draft plan, the city will have a new Fair Housing Litigation Unit. This group will use “secret shoppers” to conduct covert testing and file cases against owners who discriminate based on protected classes. The new unit will have an annual budget of $2 million, with $750,000 earmarked for testing.

In anticipation of increased scrutiny from fair housing testers, we’ll go over New York City’s protected classes and give you three tips for avoiding problems if your building is ever subjected to “secret shoppers.”

What Is Fair Housing Testing?

Fair housing testing typically involves paired testers—individuals with similar credentials but of different protected classes—who may contact your building by email, phone, or website or visit in person to check for differences in how they’re treated based on their race, national origin, or any other characteristics protected under federal, state, or local law. Since it’s unlikely that you’ll know when an email, phone call, or a visit from a prospect is really from a fair housing tester, your best bet is to treat everyone contacting you as if he or she is a fair housing tester.

Fair housing testing may be triggered by a variety of circumstances. In complaint-based testing, it’s used to verify whether an individual who claims a particular building or owner discriminated against him based on his race or other characteristic has a legitimate complaint. If the results of testing support the individual’s claim, then the evidence gathered may be used in court or enforcement proceedings.

Sometimes, testing isn’t triggered by a complaint, but conducted as part of a larger fair housing investigation. Testing may be initiated to check whether discriminatory policies or practices are a problem at one or more sites within a geographical area.

What Are the Protected Classes?

At the city level, the NYC Human Rights Law prohibits discrimination in housing in New York City. This means that any person involved with leasing an apartment—including owners, superintendents, and building managers—cannot discriminate because of a person’s actual or perceived protected status under the law. The protected classes covered under the NYC Human Rights Law are:

  • Age
  • Alienage or citizenship status
  • Color
  • Disability
  • Gender (including sex)
  • Gender identity
  • Lawful occupation
  • Lawful source of income (the term “lawful source of income” includes income derived from Social Security, or any form of federal, state, or local public assistance or housing assistance, including Section 8 vouchers)
  • Marital or partnership status
  • Race
  • Religion/creed
  • National origin
  • Pregnancy
  • The presence of children
  • Sexual orientation
  • Status as a victim of domestic violence, stalking, and sex offenses
  • Status as a veteran or active military service member

THREE TIPS FOR PREPARING

Tip #1: Watch What You Say in Your Advertising

Pay particular attention to your advertising and marketing policies to avoid triggering a fair housing investigation. Fair housing organizations are actively monitoring online advertising for discriminatory statements. Violations of the law typically occur through the use of certain words or phrases in the ad. The law prohibits the making, printing, and publishing of ads that directly or indirectly state a preference or limitation on the basis of any of the protected classes. To avoid violations, the NYC Commission on Human Rights suggests owners consider limiting advertising descriptions to features of the property. For example, the following descriptors are likely to be discriminatory:

  • White family home
  • No Irish
  • Christian home
  • No programs
  • No Section 8
  • No wheelchairs
  • No small children
  • Couple preferred
  • Heavily Jewish area
  • Adult or mature couple

And the following descriptions are unlikely to be discriminatory:

  • No smoking
  • Walk to bus stop
  • Income and credit check
  • No elevator

Tip #2: Ensure Consistency in the Leasing Process

Focusing attention on the initial stages of the leasing process may also help you pass muster if your building is ever the subject of fair housing testing. Testing is often focused on differences in the information provided to prospects about the availability of units, so it’s important to ensure that staff who speak with prospects have accurate, up-to-date information about vacancies.

Similarly, be sure to give prospects the same information about the terms and conditions of tenancy, such as screening criteria, rental terms, security deposits and fees, and any other relevant information. Quoting more stringent lease terms or higher rental payments to prospects based on a protected characteristic is a violation of fair housing law.

Testers also may be looking for signs of unlawful steering—that is, guiding, directing, or discouraging prospects from living in your building or certain parts of the building based on a protected characteristic. For example, it’s a violation of fair housing law to tell Hispanic prospects that they wouldn’t be happy living in your building—or showing them only units in undesirable locations.

Tip #3: Shop Your Building

Shopping yourself—either by internal means or by hiring an outside shopping service—is one of the best ways to ensure that you won’t be caught off-guard from the results of a fair housing test. It’s an effective tool to monitor whether your employees are complying with fair housing laws and to identify any weaknesses—either in an employee’s performance or in the effectiveness of your training program.

You can do it informally, by asking people you know to pose as rental prospects, but many owners hire outside shopping services to contact the leasing office to monitor sales and marketing as well as fair housing issues.

Whatever means you use, it’s important to follow up to determine the root cause of any deficiencies detected during the shop. There could be a number of reasons why a staff member may respond inappropriately to a shopper’s question. If it’s because the employee truly acted improperly, you should respond with disciplinary action. If the employee simply misunderstood fair housing requirements, you’ll know that the employee needs additional training.

Alternatively, the results of a shopping test may reveal a larger problem—for example, that your policy or training on a particular issue is unclear or incorrect. If that’s the case, you’ll have an opportunity to rectify the problem on your own—rather than having to address it after the fact if it surfaces for the first time during a fair housing test.

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