On September 15, 2016, the HUD Office of General Counsel provided guidance on Fair Housing Act protections for persons with Limited English Proficiency (LEP). The guidance discusses how the Fair Housing Act (FHA) applies to housing providers when dealing with individuals with limited abilities relating reading, writing, speaking, or understanding English. The guidance addresses how the disparate treatment and discriminatory treatment provisions of the FHA will apply in these cases. Owners of properties that receive federal financial assistance have greater obligations to provide meaningful access to LEP persons under Title VI of the Civil Rights Act of 1964. This guidance does not apply to those properties.
Background
Individuals with LEP are not protected under the FHA. However, the FHA prohibits housing providers from using LEP selectively based on a protected class or as a pretext for discrimination due to a protected characteristic.
Over 25 million persons in the United States are LEP (about nine percent of the total population). The link between national origin and LEP is obvious but is also supported by statistics. In the U.S., 34% of Asians and 32% of Hispanics are LEP, yet only 6% of whites and 2% of non-Hispanic whites are LEP. 61% of persons born in Latin America and 46% of persons born in Asia are LEP. Only 2% of persons born in the U.S. are LEP. Based on this data, housing decisions based on LEP generally relate to race or national origin. “National origin” means the geographic area in which a person was born or from which his or her ancestors came.
Although language discrimination is not necessarily national origin discrimination, national origin discrimination includes discrimination because an individual has the physical, cultural, or linguistic characteristics of persons from a foreign geographic area. For this reason, courts have found a link between language requirements and national origin discrimination.
National statistics demonstrate a connection between citizenship and LEP. Although discrimination against non-citizens or those with a particular immigration status is not national origin discrimination in and of itself, a requirement involving citizenship or immigration status will violate the FHA when “it has the purpose of unjustified effect of discriminating on the basis of national origin.” (Quoting Espinoza v. Farah Mfg., Co.).
Intentional Discrimination
Selectively enforcing a language-related restriction based on a person’s protected class violates the FHA, as does using LEP as a pretext for intentional discrimination.
The guidance states that often, “lack of English proficiency is used as a proxy for national origin discrimination.” (Aghazadeh v. Me. Med. Ctr – 1999). Courts have held that language related restrictions deserve close scrutiny and should be closely examined. Justifications for language-related restrictions in housing will be looked at closely to see if the real reason for the policy is race or national origin discrimination. Any blanket refusal to deal with LEP persons will be suspect because such persons may speak English well enough to deal with essential housing-related issues or may have a friend or household member who can provide assistance as needed. Examples of suspicious policies include:
- Advertisements containing blanket statements such as “all tenants must speak English,”
- Turning away any applicant who does not speak English; or
- Banning residents from speaking other languages other than English on the property or disparaging residents for speaking any language other than English.
Intentional discrimination may also be shown by policies or practices that discriminate against persons based on their primary language. For example, if a housing provider has a policy of not renting to persons who speak a certain language, but will rent to persons who speak other languages, this is likely intentional national origin discrimination.
Some courts have recognized as legitimate the needs of employers to require that employees speak English for effective supervision, a cohesive workforce, and customer relations. However, this need does not apply in the housing context.
Disparate Impact
A housing provider violates the FHA when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider has no intent to discriminate. Unless a policy is necessary to serve a substantial, legitimate, nondiscriminatory interest of a housing provider, any policy that restricts access to housing based on LEP may be considered discrimination based on national origin, race, or some other protected characteristic. Even if the policy does serve the business interests of the housing provider, it will still be considered discriminatory if another, less discriminatory practice, may serve such interest.
The determination of whether a policy or practice results in a disparate impact is always fact and case-specific. However, available data may be used to support individual cases, including census data.
It is also important to remember that a policy affecting LEP persons can have a disparate impact on persons of multiple national origins. In the Faith Action for Community Equity case, a Title VI challenge to Hawaii’s decision to stop offering its driver’s license test in eight non-English languages, the court stated “If a policy differently affects individuals from nations where English is the primary language and nations where it is not, then the policy has a disparate impact.”
If a housing provider implements a policy against non-English speakers, the provider must be able to provide evidence that there is a substantial, legitimate, and non-discriminatory reason for the policy, keeping in mind that many of the employer justifications for such a policy will not apply in the housing context.
In summary, this guidance makes it clear that selective application of a language-related policy, or use of LEP as a pretext for unequal treatment of individuals based on race, national origin, or other protected characteristics, violates the FHA. Also, even if there is no intent to discriminate, restrictions on access to housing based on LEP are likely to have a disparate impact on certain protected classes and, if not legally justified, may violate the Act under the disparate impact theory of fair housing law.