Porgy and Bess," composed by George Gershwin in 1935 with a libretto by DuBose, is often hailed as one of the great American operas. By requiring a Black cast, the opera was groundbreaking given the racial discrimination that plagued the opera industry at the time.

However, more recently, "Porgy and Bess" has also been controversial because some contend that the opera perpetuates racial stereotypes. A particular area of concern is the use of stereotypical dialect in the characters' speech and song lyrics.

Gershwin and Heyward chose to represent the characters' speech in a stylized Black vernacular. They likely intended to authentically capture African-American speech in the South during the period. DuBose Heyward was familiar with the Gullah culture of the South Carolina Lowcountry, where the opera is set. However, possibly to appeal to the audience of the day, the opera's dialect was exaggerated or simplified to reflect 1930s stereotypes of African-American speech.

In 2011, Pulitzer Prize-winner playwright Suzan-Lori Parks and composer Diedre L. Murray adapted "Porgy and Bess" for a Broadway revival. In doing so, they addressed dialect issues to make the dialogue sound more authentic and less caricatured. Among other things, the dialogue was updated so it better reflected how African Americans might have genuinely spoken in the 1930s.

Earlier this month, the Department of Housing and Urban Development (HUD) filed a Charge of Discrimination (Charge) alleging that landlord N. Clark LLC (Landlord) and its managing member Kathleen Cresson unlawfully discriminated against prospective tenants for Landlord’s duplex based on their race and familial status. The Charge alleges that Cresson did not return voicemails from prospective tenants whose dialect she associated with being Black.

This article discusses the Charge and how stereotyping of prospective tenants based on their linguistic dialect can support a race discrimination case.

What is the Fair Housing Act?

At first, the FHA only prohibited discrimination because of race, color, religion, and national origin. In 1974, the FHA was expanded to prohibit sex discrimination. In 1988, the FHA was amended to add disability and familial status to the list of protected groups.

The FHA covers much more than the refusal to rent or sell housing to individuals in the listed classes. The FHA also prohibits other actions which treat individuals in protected classes less favorably than others. One prohibited activity is steering, which involves trying to convince an individual to live (or not to live) somewhere because of their association with a protected class.

Although there is an exception to the FHA for duplexes, it applies only where the owner lives in one of the units. In this instance, neither the Landlord nor Cresson resided at the rental duplex.

HUD’s Allegations

The Charge states that after receiving a complaint, HUD assembled eight “testers” to investigate where there was reasonable cause that Cresson was unlawfully discriminating against prospective tenants. Half of the testers (1, 3, 5, and 7) were black, and the remaining testers (2, 4, 6, and 8) were white.

Testers 3 and 4 posed as individuals without children. The remaining testers posed as prospective with children.

The testers responded by phone to a Craigslist advertisement offering one unit in Landlord’s duplex for rent. All the phone calls went to voicemail, and all the testers left messages.

The Charge alleges that Cresson did not return three out of the four Black testers' calls due to stereotyping their linguistic dialect. The Charge notes that Cresson's nephew, rather than Cresson herself, responded to the fourth tester's call. The Charge alleges that although the White testers' voicemails were returned, those with children were discouraged from renting the unit.

Of the Black testers, the Charge indicates that testers 1 and 5 did not receive a return call. Tester 3 received a return voicemail but, according to the Charge, was never offered an opportunity to tour the property. Tester 7 was provided with possible tour times (but by an individual other than Cresson). The Charge indicates that when tester 7 asked for alternative times, they received no response.

The Charge says that Tester 2 (who was White) and Cresson exchanged several voicemails trying to schedule a time to tour the property, but no tour occurred. According to the Charge, Cresson also responded to tester 4’s voicemail, asking for more information. The Charge alleges that after tester 4 said they would be renting the unit with a roommate, they were offered tour times and toured the property. During that tour, the Charge states that the back yard, pool, and parking lot were not mentioned.

The Charge alleges that tester 6, who indicated they had two children (ages 8 and 10), had a different experience. During voicemail exchanges, Cresson engaged in an extended discussion about there being no backyard for the children. Some of Cresson’s alleged statements include:

• “So there’s no yard for the kids or a dog, you see what I am saying? Cars come in, go around the back, and come out. Have you seen the place yet?”

• “Because that’s the only thing I’m concerned…but your kids are not real young like I wouldn’t be afraid a two-year old would run…run out into the parking lot. They 8 and 10.”

• “Um, I don’t mind kids if they are well-behaved, and if you don't care that there's no yard…so I could show it to you"

After tester 6 said the lack of a back yard wasn’t a concern, Cresson showed them the property. During the showing, Cresson allegedly commented on safety concerns about children possibly living at the property.

The Charge states that Tester 8, who said they had a two-year-old, and Cresson also exchanged voicemails trying to set up a time to tour the property. In her voicemails, Cresson allegedly provided several reasons the property was a problem for someone with a two-year-old and discouraged tester 8 from touring the property:

• "so that's the only thing I'm concerned about for a 2-year-old. Would he run out the door and then somebody…you know, "cause it's, it's not…if I were a parent, I'd want like a yard and stuff."

• The property is "surrounded by parking lot". . . .The only thing I would be concerned about it would be a little 2-year-old run out and somebody be…a client be coming in or something."

• "So, so, I don't know if that's a concern, it would be a concern for me, it might just not be the right…you know, and unfortunately, I have a place in Lakeview that would be perfect, but it doesn't…you know, and even that backyard is completely open ‘cause I have two lots onto it . . . But at least the kid, if he ran out, he wouldn't run into a parking lot."

• “So, um, I don’t know if you want to see it. Um, I mean, I’m here now. Um, but I’m not gonna be here a whole lot longer, but I am here now, but it would…that would be a concern for me as a parent.”

Respondents’ Defense

In their response to the complaint, Respondents indicated that they were concerned that tenants with children might not watch their children carefully and would sue Respondents if their children were injured:

· They “did not want increased liability with young kids running into the lot or playing in a parking lot.”

· They “think it is a consensus with the parent about the property owner, not a one-sided power trip where parents who rent get to call all the shots.”

· ". . . I am aware of how stupid people are. They leave their kids to die in a hot car. Now, there are constant disturbing news stories about so many parents killing their kids intentionally. I love kids, as I am the oldest of 8. But if parents do not watch their kids playing in the commercial parking lot, and something happened, they will sue me."

How Linguistic Stereotypes Can Constitute Race Discrimination

Language, including accents, dialects, and choice of vocabulary, can be an integral part of cultural identity. Accents can reveal information about a person's geographical origins, cultural background, or first language (i.e., national origin).

When linked to race or ethnicity, linguistic stereotypes can be a form of unlawful discrimination. Further, when individuals experience discrimination based on their linguistic attributes, it may reflect broader biases against their racial or ethnic group.

The Charge alleges that Black testers received limited interaction or property-related warnings, whereas white testers received more engagement.

The Charge does not explain why Respondent might have concluded from telephone messages and conversations that particular testers were Black. However, they may have used African American Vernacular English (AAVE), a linguistic system with its own rules and structures. Discriminating against someone for speaking AAVE is inherently tied to race discrimination.

Linguistic stereotypes are not limited to AAVE. Stereotypes and discrimination may occur with individuals speaking with an accent associated with a particular ethnic group or national origin.

Understanding Familial Status Discrimination

Landlords renting apartments may not restrict rentals based on any individual's familial status. Familial status refers to anyone living with a child (someone under 18) as that child's parent, guardian, or other legal custodian. Familial status also includes individuals attempting to adopt or obtain custody of a child or who are pregnant.

The only exception to the prohibition on discrimination based upon familial status is for certain senior living communities where at least one resident of each unit is at least 55 years old.

It is not unlawful to restrict the number of individuals who can reside in a rental unit based upon zoning requirements, as long as the restriction isn’t directed at children. HUD has stated that a policy of two people per bedroom is a reasonable limitation. So, restricting occupancy of a two-bedroom unit to four individuals would be lawful. But, allowing four adults to live in a two-bedroom unit while prohibiting one adult with three children from living there would be familial status discrimination.

Landlords also must be circumspect regarding restrictions on the use of common areas based on age. Subject to legal requirements, parents, not landlords, are the decision-makers regarding what is best for their children.

Although some safety restrictions in common area use are permitted, those restrictions must be reasonably related to safety concerns and best will be supported by objective standards. For example, it would be reasonable to restrict the use of playground equipment to children in the manufacturer's recommended age range.

Although most states do not state when a child may be left unsupervised, in Maryland, a child under eight must be supervised by someone over 13. So, a Maryland landlord would be reasonable in adopting requirements consistent with Maryland law.

Elsewhere, there may be no clear line where a restriction changes from a reasonable one to unlawful discrimination. There are extremes, however. For example, it might be reasonable to require that a three-year-old be supervised when using playground equipment. However, requiring supervision of a thirteen-year-old would be suspect.

Cresson claimed her concerns were safety-related. However, according to the Charge, those supposed safety-related concerns were not based on objective standards. Instead, they appear to have been based on stereotyping individuals with children.

Cresson alleged made statements that reflected an assumption that children need a yard to play in and that parents cannot be trusted to adequately supervise their children (e.g., that a two-year-old might run out of the unit into a parking lot or that parents leave their children in the car to die). Making rental decisions based on objective criteria addressing legitimate landlord concerns about prospective tenants is fundamental to fair housing. And making rental decisions based on assumptions about an individual’s parental status is no better than making assumptions based on their gender, race, or any other protected class.

One of Cresson’s alleged statements reflected outright hostility toward fair housing laws by describing parents who stand up for their rights as being on a “power trip” and “calling all the shots.”

Conclusion

HUD’s allegations center on assumptions the landlord allegedly made about prospective tenants. Cresson allegedly assumed that individuals were Black based on their dialect. Cresson’s alleged statements show she assumed that children need a yard to plan in and that parents would not properly supervise their children.

Cresson claims her concerns were well-intended, that she wanted to ensure children’s safety (and minimize her potential liability). However, regardless of her intentions, Cresson’s alleged statements reflect an attitude that she knew better than the parents what children need and how they will behave. Plus, HUD alleges that the result was to discourage or prevent families with young children from leasing her rental unit in violation of the FHA.

This case serves as a reminder to landlords to approach all prospective tenants with an open mind and free of stereotypes and assumptions. Further, landlords should remember that subject to state zoning and occupancy laws, the tenant, not the landlord, should decide whether a particular rental unit meets their needs.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.