Retaliation And The Fair Housing Act

Fox Rothschild LLP

Fox Rothschild LLP

I suspect I have mentioned this before, but it keeps coming up.  In addition to the seven protected classes (race, national origin, color, religion, sex, familial status, and disability) in the federal Fair Housing Act (FHA), there is another cause of action tucked away in a different section of the law that trips up housing providers from time to time: retaliation. Here is how it comes into play and hits my desk.

Assume a resident submits more than a few service requests and/or regularly gets into altercations with his neighbors. The leasing office has sent a couple of warning letters to comply with the terms of the lease and/or community rules. With this resident nearing the end of a one year term, management needs to decide about offering a lease renewal. While the leasing office is deciding what to do, the resident files a fair housing complaint. In it, the resident claims the property is discriminating against him on the basis of his religion (or any other protected class). The complaint is specious, but it gets referred over to me to handle in the ordinary course.

But, after learning about the complaint and before talking to me, the leasing office decides this filing is the last straw with this resident and decides not to offer him a lease renewal. And writes that in an email to the corporate office. As such, the leasing office sends the notice of non-renewal to the resident. What will happen next? The resident will call HUD to amend his complaint to add a new count – this time for retaliation. Section 818 of the FHA makes it unlawful to retaliate against anyone because he or she has filed a discrimination complaint or has assisted someone with the filing a discrimination complaint. And investigators will latch on to a retaliation count, even if the rest of the complaint is meritless. Read that again: even if the underlying complaint lacks merit, management can be on the hook if we retaliate against someone because he or she filed a meritless complaint. And in this example, it can be difficult to explain the email noting we non-renewed him because of the filed fair housing complaint.

Does that mean we can never non-renew a difficult resident? No, of course not. But we must have a legitimate, non-discriminatory reason for doing so. Having nothing to do with filing a fair housing complaint. Indeed, there are times when management just decides not to renew someone. Which can be fine. But what requires a lawyer like me to get involved is if the leasing office acts against a resident because he or she filed a complaint or was exercising fair housing rights. Finally, note that retaliation covers not just residents – but will also protect an employee who assists a resident with a complaint. Management cannot take an adverse action against an employee without risk of violating the statute.

Just A Thought.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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