Fair Housing Laws
Both the United States Federal Government and Massachusetts have a list of “protected classes,” which are groups of people who cannot be turned away from housing, employment, or certain other situations because of their membership in a protected class. They can be turned away for other reasons.
The federal government says you cannot discriminate about the following:
- National origin
- Family status
- microbiological, including HIV
Massachusetts agrees that all of the above are illegal. Also, you can’t discriminate about:
- Sexual orientation
- Gender identity
- Marital status
- Genetic information
- Veteran status
- Membership in the armed forces
- Receiving public assistance
See MGL Ch. 151B Section 4. Depending on what kind of landlord you are, there might be certain allowances granted.
Note that these categories apply to housing. Employers or others may have different requirements to meet.
The Massachusetts Commission Against Discrimination is in charge of making sure these anti-discrimination laws are followed in housing and employment. They use federal funds to higher third party “testers” for landlords, in particular.
How Testing Works
Two actors are given substantially similar profiles. Same income, same credit, same economics. One is given a little something extra — they’re placed in a protected class. The first actor pretends to be a prospective tenant and calls you, the landlord, to schedule a tour. They pay attention to every little detail about what you say and do, and then as soon as they leave, they write it all down. The second actor does the same thing. If there is any material difference between what you say and do with one person vs with another, you will be investigated more deeply or fined immediately.
For instance, suppose the rent is $1,000/mo and you write in the ad, “Perfect for a young husband and wife or boyfriend and girlfriend.” You think you’re being clever because you have avoided discrimination about marital status!
A young man and a woman trained as testers take a tour. You shake their hands and quickly come to like them — they remind you of yourself at their age — so you offer to reduce the rent to $980/mo. That’s good business practice, right? Try to snare good tenants before someone else does.
Your next tour is to two young women who state that they are same-sex partners. You’re fixing a mini-blind when they arrive and you don’t shake their hands. You don’t particularly find much in common with them and you don’t mention anything about reducing the rent. They seem nice enough, though, and the rest of their tour goes the same as the first one.
After these two tours, MCAD will have two different reports. One says you shook the hands of — and lowered the rent for — a straight couple. The other says you didn’t shake the hands of — or lower the rent for — an equally qualified LGBT couple. You probably didn’t even realize you did this. But they targeted you because of what you wrote in the ad, and now your actions have confirmed their suspicions. You are in very hot water.
More Real Examples of Bad Discrimination
“This building is full of Norwegian people. Do you speak Norwegian?”
Any time you want to describe a situation to a prospective tenant, try inserting “black people” instead of the actual word. “This building is full of black people. Do you speak black people?” This is very bad. It doesn’t matter if you love black people, or Norwegian people, or any kind of person and you rent to them all the time. The implication here is that someone might be “not a good fit” because of their race.
Do not worry about cultural fit. You might be looking at a Latino and wondering if they would mind living with a house full of Asian tenants. Maybe they will be greatly annoyed at the annual Chinese New Year party. You might want to ask them about it as a friendly gesture. But you don’t know that person’s life story. Maybe the wife who didn’t come on the tour is Asian. Maybe this Latino will think you don’t want them celebrating Puerto Rican Day.
Do not comment on race or racial preference. Do not ask about race or racial preference.
“You are Russian? I am Polish. I will never forgive what the Russians did to my country and family.”
The Polish landlord was fined massively.
Do not comment on or ask about national origin.
The same goes for small talk: “Oh, what country is your family originally from?” Do not do this.
“This apartment is not deleaded. It is not safe for children.”
A realtor wrote this in an ad. Even though they were being honest and thinking about child safety, the lead law in Massachusetts is a catch-22. You cannot have children living without a lead certificate, but if you do not have a lead certificate you cannot tell them to go away! You must delead. The realtor who did this may have lost their job and their firm was fined massively and publicly.
Do not turn away families on account of lead paint.
Are there other things you can do? Yes. Ask local landlords.
“No Section 8.”
Whoa! You cannot discriminate against someone because they receive public assistance. The landlord who wrote this in their ad was not in Massachusetts, but if they had been, they would have been taken down by MCAD.
Duty to Translate to Avoid Discrimination
Does a landlord have to provide documents in other languages in order to avoid discrimination on the basis of national origin? The answer is, “no, but maybe?”
All landlords must permit a tenant to use translation services.
English may not be a requirement for renting. This comes straight from Jamie Williamson, Chair of the MCAD (conversation with MassLandlords staff, November 10, 2016).
For written communication, like eviction notices, landlords should purchase a stamp that reads, in the language of your tenant, “This is an important document. Please have it translated.” There are multi-language stamps available. Stamp everything you give to that tenant.
For oral communication, including tenant screening and signing the rental agreement, landlords should require the tenant to locate translation services. This way you both understand one another fully. Don’t wing it.
“Language line” is something used by the Commonwealth, the tenant may have access to this or other translation services.
Any landlord may be subjected to a “reasonableness” test.
If a landlord delays or otherwise doesn’t cooperate with requests to use translation, and a claimant alleges discrimination, the landlord may liable.
It will depend on whether it would have been reasonable for the landlord, given their financial position, to accommodate delays or other expense in order to communicate fully with the tenant.
For instance, it might be reasonable to expect a large landlord to provide rental applications in Spanish, a common language in Massachusetts, but not Bhutanese (Dzongkha), an uncommon one. This helps Spanish-only speakers complete applications as quickly as English speakers when applying for apartments and avoids claims of disparate impact.
On the other hand, it might be reasonable to expect a small landlord to communicate only in English, and to provide forms in English only, but to permit the tenant to use translation services for completing the forms.
For the purpose of emergency communications and maintenance requests, you should verify that the translation services used at startup will remain available throughout the tenancy.
A tenant or prospective tenant may request a change to the apartment or to your rules. This change is called an “accommodation”. If it would be reasonable for you to grant this accommodation, you must grant it, even if it costs you money that a non-disabled tenant wouldn’t cost.
When someone requests an accommodation, you should not impose undue delays or bureaucracy in an effort to kill the request. This will be perceived as discrimination.
First, whether the request was verbal or in writing, create a written summary that acknowledges the request and your intent to consider it. Your written summary can be email, text message, or a letter. For instance, “Thank you for requesting handrails into your bathtub. If you don’t ask, we don’t know you need it! Handrails require professional installation and may need wall upgrades. We are evaluating whether we can accommodate you and intend to reply within 30 days.”
Second, get quotes for the renovation, ask tenants if they’re allergic to dogs, get whatever additional information you need. Try hard to find a solution.
Third, issue a decision within 30 days. Document your rationale and offer alternatives, if applicable, or set a timetable for the accommodation to take effect.
Note that some requests cannot be questioned. For instance, a blind tenant with a seeing eye dog must be taken at face value; you cannot require them to fill out a reasonable accommodation form. For emotional or other hidden disability, you can require third party verification.
Landlords are free to say “no relatives, no coworkers, no employees” even if these people are in protected categories. This prevents family and workplace awkwardness if there should be a rental disagreement.
A landlord’s duty not to discriminate extends past the rental application and covers the entire tenancy. This is particularly important for tenants with disabilities who request changes to their rental unit or who want to relocate within the complex. You must engage in dialog and grant all requests that are reasonable, given your financial means.
Choosing without Discriminating: Tenant Selection and Protected Classes
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Further Reading on Discrimination
- Attorney General Housing Penalties Decline (Article August 2018)
- Clark v New Bedford Housing Authority (2013), which established limits on reasonable accommodations where an emotional support ball python was concerned.