How to Keep Maintenance Staff from Triggering Fair Housing Claims

Some of the most important, and often overlooked, sources of fair housing complaints arise from maintenance operations. Sites may face allegations of discriminatory maintenance policies or procedures—for example, that requests from white members are routinely pushed ahead of those from minority members. Or complaints may stem from accusations of sexual harassment or discrimination by a single individual—a member of your maintenance staff or an outside contractor. And increasingly, maintenance operations are implicated in requests for reasonable accommodations or modifications by individuals with disabilities—for example, requests to alter the interior of a unit or common areas to make it accessible for a resident in a wheelchair or to refrain from using pesticides from a resident with disabling chemical sensitivities.

     We’ll explore the many ways in which fair housing claims can arise from maintenance operations, and offer five strategies to help ward off problems at your site.

FHA & HUD’s Disparate Impact Rule

The Fair Housing Act (FHA) prohibits housing discrimination based on race, color, national origin, religion, sex, disability, or familial status. In addition, last year HUD issued a final rule that took effect on March 5, 2012, that bans discrimination based on sexual orientation, gender identity, or marital status at HUD-assisted housing or at housing whose financing is insured by HUD.

     Among other things, the FHA outlaws discrimination against anyone in the provision of services or facilities in connection with the rental of a dwelling because of a protected characteristic. In particular, it’s unlawful to fail or delay maintenance or repairs of rental dwellings because of race, color, religion, sex, familial status, national origin, or disability, according to HUD regulations. Consequently, owners may be directly liable for adopting policies or practices that discriminate in the level of maintenance services provided to residents based on a protected characteristic.

     In addition, on Feb. 8, 2013, HUD issued a rule clarifying the circumstances under which certain housing practices may violate the FHA as a result of disparate impact, practices that have a discriminatory effect even where there may not be evidence of discriminatory intent.

     With respect to maintenance operations, a site could face a disparate impact claim based on a policy to focus maintenance efforts on certain areas or properties, to the exclusion of others, if it has a discriminatory effect based on the protected characteristics of the members living there. Such a claim could arise, for example, if the site devotes all its attention to maintaining market-rate units or buildings while ignoring basic maintenance chores in lower-rent units or buildings. If most of the residents of the luxury units are white—or childless—but most of the residents in the low-rent units are minorities or families with children, then it could lead to a disparate impact claim.

FOLLOW FIVE RULES

To help ward off potential discrimination complaints at your site, abide by the following five rules.

Rule #1: Provide All Employees with Basic Fair Housing Training

Train maintenance and service workers on how to respond to comments or questions that touch on fair housing matters by anyone whom they encounter in the course of their duties. In general, they should understand why they shouldn’t answer any questions by visitors about the racial makeup or other protected characteristics of the people living in the site. It could be part of a fair housing test to ferret out unlawful discrimination.

     Nor should employees offer personal opinions or indicate agreement with a resident who complains about neighbors, such as displeasure with cooking odors or noisy children. Train employees to keep personal feelings to themselves and to refer the resident to contact the management with any such questions, comments, or complaints. In addition, instruct employees to report such incidents themselves, so the site can document what transpired—and how the employee handled the situation—to ward off later accusations that the employee acted inappropriately.

     Moreover, train employees to report any suspicious activity or anything else out of the ordinary to the office. Maintenance workers, housekeeping staff, and other employees are in a unique position to act as the eyes and ears of the management staff to alert them to potential problems, such as disputes among neighbors, complaints about domestic violence, or suspected criminal activity on the premises. Such reports could give you an early warning sign on the potential problem brewing among neighbors, allowing you to head off any potential fair housing problems.

Editor’s Note: For lessons and quizzes you can use to train your staff on all aspects of complying with the FHA at multifamily housing sites, visit the Insider’s sister publication, Fair Housing Coach, at www.FairHousingCoach.com.

Rule #2: Adopt Uniform Policies for Handling Maintenance and Repair Requests

In general, it’s a good idea to handle maintenance and repair requests on a first-come, first-served basis—unless the request involves an emergency.

     Develop a written policy that defines what constitutes an emergency, with specific examples of the types of problems that would justify an immediate response. Examples include complaints about smoke, overflowing toilets, and electrical problems. The policy should also outline the types of problems, such as a jammed garbage disposal or stuck closet door, which wouldn’t be considered emergencies. While it may be difficult to foresee all types of problems that may arise, the more detailed the list, the better.

     The policy should detail the process for handling maintenance requests. For example, the staff member taking maintenance calls or emails should document the time and date of the request, details about the problem, and the name and contact information for the resident making the request. These basic procedures ensure that maintenance services are provided consistently based on reasonable, objective criteria, as opposed to discriminatory factors such as the race or other protected characteristic of the resident making the request.

     Also, a log showing the date, time, and way that maintenance and repair requests are handled can alert managers to the early warning signs of a potential fair housing problem. A review of the records may reveal a previously undetected problem—for example, that a particular maintenance worker is ignoring the standard policy by doing favors for white residents to bump their maintenance requests ahead of requests from African-American residents. Periodic review of the records may enable the manager to head off a formal fair housing complaint by addressing the problem immediately with the employee via the community’s disciplinary policy.

Rule #3: Take Reasonable Accommodation Requests Seriously

Emergencies aren’t the only times that justify making an exception to the first-come, first-served policy for handling maintenance and repair requests. In some cases, a maintenance or repair request may require immediate attention if it qualifies as a reasonable accommodation for an individual with a disability.

     Fair housing law requires housing providers to make exceptions to rules, policies, practices, or services as a reasonable accommodation when necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. The rule applies both inside the unit and in common and public-use areas. An exception to the first-come, first-served rule to provide immediate repair or maintenance service could qualify as a reasonable accommodation for an individual with a disability under certain circumstances.  

     Moreover, federal enforcement officials stress that sites must respond promptly to reasonable accommodation requests. Failure to respond within a reasonable period is considered a denial of the request, setting the stage for a formal complaint or lawsuit.

Rule #4: Take Steps to Prevent Sexual Harassment

Owners have a duty to ensure that their employees, agents, or contractors don’t engage in sexual harassment, according to HUD. A property owner or manager may be held liable if he knew or should have known that an employee, agent, or contractor is sexually harassing applicants or members, but failed in her duty to stop it.

     Sites have to take proactive measures to ban sexual harassment, which is considered a form of discrimination based on sex. The first step is to develop a site-wide policy banning sex discrimination. The policy should fully explain the two types of sexual harassment:

• Quid pro quo sexual harassment—in which an employee or contractor conditions access to housing or related services on a victim’s submission to sexual conduct; and
• Hostile environment sexual harassment—in which a member is subjected to sexual behavior of such severity and pervasiveness that it results in an environment that’s intimidating, hostile, or offensive.

     Make it clear that the policy applies to all employees, whatever their position, as well as to outside contractors or vendors. The policy should spell out that violations are grounds for disciplinary actions against employees—and termination of services by outside contractors.

     Adopting the policy is a good first step, but sites must go further to prevent liability for sexual harassment by employees or contractors. According to HUD, owners and managers are subject to liability for sexual harassment by employees or agents—regardless of whether they knew about it or were negligent in failing to prevent it from occurring. For example, HUD says that if a manager authorizes a maintenance worker to enter a member’s home to make a repair, and the maintenance worker sexually harasses the resident, then the management company would be legally responsible for the discriminatory actions of the maintenance worker.

     To reduce the risk of improper conduct—or false accusations of improper conduct—by your maintenance staff or outside contractors, maintain and follow written policies and procedures regarding when maintenance and repair work is performed—particularly inside occupied units. Among other things, guidelines for maintenance workers could include:

• Have proper identification, such as a work shirt or badge, while on the job;
• Enter units only for scheduled repairs or maintenance or in case of emergency;
• Give reasonable notice before repair or maintenance visits;
• If the resident is home, don’t enter the unit unless the resident lets you in;
• Except in case of emergency, do not enter a unit if any child under the age of 18 is home without the presence of a parent or other adult;
• Treat all residents the same;
• Don’t fraternize with residents;
• Respect residents’ privacy; and
• Don’t allow yourself to be in a compromising position.

Rule #5: Keep Good Records

Good record keeping is essential to help prevent—and defend against—any fair housing complaints with respect to how your community handles maintenance and repair requests.

     Make sure that that you maintain written policies and procedures for handling maintenance requests. Keep records about each request for maintenance and service.

     Moreover, fully document any complaints about maintenance services and what the site did to resolve the problem. This is particularly important if there’s any suggestion that a complaint about maintenance services seems related to a fair housing matter. Examples include a member who complains that she received inadequate service because of her race or complains about inappropriate sexual comments or conduct by members of your maintenance or landscaping crew.

     Since disability discrimination is the leading source of fair housing complaints, it’s essential to keep good records about any requests for reasonable modifications and maintenance-related requests for reasonable accommodations. Fully document your efforts to resolve any questions about request, such as whether the resident (or person associated with him) qualifies as an individual with a disability under the FHA and whether there’s a disability-related need for the requested accommodation or modification.