I recently came across a situation where an owner of a multifamily property had a policy of requiring that all applicants be able to communicate in English in order to apply for occupancy at the property. After discussing the issue with the owner, he was clearly unaware that such a practice may be construed as a violation of Federal fair housing law. A review of the relationship between the Fair Housing Act and limited proficiency in English is worthwhile.
While people with limited proficiency in English (known in HUD programs as Limited English Proficiency or LEP) are not a protected class under the Fair Housing Act (FHA), HUD has determined that the ability to communicate proficiently in English is closely related to national origin, which is a protected class.
HUD has issued guidance on protections for persons with LEP (HUD Office of General Counsel Guidance on Fair Housing Act Protections for Persons with Limited English Proficiency, September 15, 2016). The guidance indicates that a housing provider will violate the FHA by using a person’s LEP to discriminate intentionally because of race, national origin, or another protected characteristic. In such cases, the use of language-related criteria by a housing provider will be analyzed in the same way as other potentially discriminatory criteria, and intentional discrimination can be established through direct or circumstantial evidence. Under the guidance, suspect practices include advertisements stating all tenants must speak English and rejecting all applicants who are not fluent in English. In addition, restrictions on tenants speaking other languages on the property have no perceivable justification under the FHA. The guidance notes that some courts have recognized employers’ requirements that employees speak English as legitimate defenses against discrimination claims under Title VII of the Civil Rights Act of 1964, but it says the justifications for such requirements would be inapplicable to FHA claims.
In addition to intentional discrimination, the guidance says the use of LEP to make housing decisions could subject a housing provider to discriminatory effects liability under the FHA. Specifically, the guidance says that when a policy or practice restricting access to housing on the basis of LEP has a discriminatory effect based on national origin, race, or some other protected characteristic, the policy or practice will violate the FHA if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect.
Discriminatory effects liability is determined through a three-step burden-shifting test requiring a fact-specific analysis. First, the plaintiff or HUD must show that the challenged policy or practice has a discriminatory effect on members of a protected class. If this showing is made, the burden shifts to the housing provider to prove that the policy serves a substantial, legitimate, nondiscriminatory interest of the provider. If the provider meets this burden, the plaintiff or HUD must show that the provider’s interest could be served by another policy or practice with a less discriminatory effect.
In short, while the ability to communicate with applicants and tenants in a multifamily development is essential, requiring that applicants and tenants be proficient in English is unrelated to this requirement. Communication with non-English speakers may be accomplished through interpreters (these may be professional or family members/friends) or bi-lingual staff. No owner or management company should have a policy requiring that applicants or tenants be able to speak English.