The federal government has announced significant changes on how it will enforce the Fair Housing Act. A recent memorandum from the Office of Fair Housing and Equal Opportunity (FHEO) signals a major shift in enforcement priorities that community association boards and managers should understand.
The most significant change involves a renewed focus on cases involving clear evidence of intentional discrimination, as opposed to disparate impact claims. The federal government will now prioritize investigations where there is strong evidence that someone was treated differently because of their race, color, religion, sex, national origin, familial status, or disability. At the same time, the federal government will move away from what the memorandum describes as “novel and tenuous theories of discrimination.” This includes reduced focus on cases involving, for example, appraisal bias, environmental justice claims, local zoning disputes, and certain screening practices that were previously targeted for investigation.
The new enforcement priorities emphasize a distinction between two types of discrimination that community associations should understand. Facially discriminatory conduct refers to policies or actions that explicitly treat people differently based on protected characteristics. For example, a community association rule that states “no families with children under 12” would be facially discriminatory based on familial status. These cases are generally straightforward because the discrimination is obvious from the policy itself. On the other hand, disparate impact involves policies that appear neutral but have a disproportionate effect on protected groups. These cases are more complex because they require statistical analysis to prove the discriminatory effect.
For community associations, these changes likely mean reduced risk of federal investigation for certain types of policies and practices. However, community associations should not interpret these changes as permission to relax their fair housing compliance efforts. Community associations remain subject to state and local fair housing laws, which are likely to still pursue enforcement of discrimination claims based on disparate impact. Additionally, future administration could easily change course on HUD’s willingness to pursue discrimination claims based on disparate impact.
This is an area of the law to closely monitor, as community associations often face discrimination claims. There are a number of actions associations can take to help ensure compliance with fair housing laws. Community associations should review their governing documents and policies to ensure that they do not explicitly discriminate against protected classes and eliminate language that could be interpreted as targeting specific groups. Associations should also ensure that there are clear procedures for handling accommodation requests. When making enforcement decisions or policy changes, associations should document the legitimate, non-discriminatory reasons for the actions. Boards should also ensure that those making decisions on the Association’s behalf understand fair housing requirements and avoid actions that could suggest discriminatory intent. Most importantly, every community association’s handbook of rules should contain an anti-harassment policy.
By understanding these changes and maintaining appropriate compliance measures, community associations can continue to serve their members while maintaining compliance with fair housing law. If your Association has any questions or would like to review its existing policies and procedures for compliance, If your association is interested in learning more about our services and how we can help, please click the following link: Request for Proposal and type “HUD ENFORCEMENT” in the subject field.
