How to Avoid Discrimination Claims Based on Sexual Orientation and Gender Identity

March 27, 2012

This April marks the 44th anniversary of the Fair Housing Act's (FHA) passage—the landmark legislation signed into law on April 11, 1968, that prohibits discrimination in the sale, rental, and financing of housing based on race, color, national origin, sex, and, as amended, disability or family status. In 2010, the Department of Housing and Urban Development (HUD) issued a report stating that more than 10,000 people filed housing discrimination complaints in 2009.

This April marks the 44th anniversary of the Fair Housing Act's (FHA) passage—the landmark legislation signed into law on April 11, 1968, that prohibits discrimination in the sale, rental, and financing of housing based on race, color, national origin, sex, and, as amended, disability or family status. In 2010, the Department of Housing and Urban Development (HUD) issued a report stating that more than 10,000 people filed housing discrimination complaints in 2009. Most complaints came from persons with disabilities, and race-based housing discrimination was the second most common reason individuals filed complaints.

As a result of recent initiatives, however, there may be an increased number of complaints in another discrimination category by the time HUD issues its next fair housing report. Recently, HUD has placed a spotlight on discrimination against lesbian, gay, bisexual, or transgender (LGBT) persons.

On Jan. 30, HUD announced new regulations intended to ensure that HUD's core housing programs are open to all eligible persons, regardless of sexual orientation or gender identity. And although the FHA doesn't explicitly protect against discrimination against persons based on their sexual orientation or gender identity and the new rule applies only to HUD-assisted housing, HUD has issued guidance regarding potential discrimination claims that may arise based on those categories. For example, HUD has stated that an owner or manager who discriminates against a transgender person based on his nonconformity with gender stereotypes has probably violated the FHA's ban on gender-based discrimination.

In addition to HUD's warnings, New York City has enacted its own law that explicitly prohibits sexual orientation and/or gender identity housing discrimination. In this issue, we'll cover the local law banning discrimination based on sexual orientation and gender identity. Then, we'll give you six steps to help you avoid discrimination claims based on these categories.

Protections Under New York City Law

New York City's housing discrimination law is more stringent than federal law. “Because New York City's law is stricter and covers more classes of people than at the federal level, an owner who follows the city law will automatically comply with federal law,” says Craig Gurian, executive director of the Anti-Discrimination Center of Metro New York.

In April 2002, the New York City Human Rights Law, located in Title 8 of the Administrative Code of the City of New York, was amended to make it clear that an individual's gender identity is an area of protection under the law. New York City defines “sexual orientation” as including heterosexuality, homosexuality, and bisexuality. However, transgender individuals are protected under New York City's definition of the term “gender.”

Gender is one category that's interpreted differently at the local level than it is at the federal level. “Gender” is defined in the city's Human Rights Law to include:

  • Actual or perceived sex;

  • Gender identity;

  • Self-image;

  • Appearance; and

  • Behavior or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the legal sex assigned to an individual at birth.

Gender identity is an individual's sense of being either male or female, man or woman, or something other or in-between. Gender expression, however, describes the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, speech patterns, and social interactions.

Another potentially confusing term is “transgender.” This word is an umbrella term that includes anyone whose gender identity and/or gender expression does not match society's expectations of how an individual who was assigned a particular sex at birth should behave in relation to that gender. The term includes, but is not limited to:

  • Pre-operative, post-operative, and non-operative transsexuals who may or may not use hormones;

  • Intersex individuals;

  • Persons exhibiting gender characteristics and identities that are perceived to be inconsistent with their gender at birth;

  • Persons perceived to be androgynous;

  • Transvestites;

  • Cross-dressers; and

  • Drag queens or kings.

Enforcement and Penalties

The Commission on Human Rights provides opportunities for mediation of complaints, and investigates and prosecutes violations of the law.

If the Commission, after a hearing, finds that a violation of the law has occurred, it may award damages and civil penalties up to $250,000. A person who fails to comply with an order issued by the Commission may also be liable for a civil penalty of not more than $50,000 and an additional civil penalty of not more than $100 per day for each day the violation continues.

In addition, a private lawsuit may be filed under the city's Human Rights Law. Upon finding that a violation of the law has occurred, a court may award damages, injunctive relief, and attorney's fees.

TAKE FIVE STEPS TO AVOID LGBT DISCRIMINATION CLAIMS

Step #1: Review Policies and Procedures

Your office should develop clear policies and procedures for preventing discrimination based on sexual orientation and gender identity against applicants, tenants, and employees. In addition, the policies should address your procedures for the investigation and equitable resolution of complaints alleging discrimination based on sexual orientation.

The policy also should prohibit retaliation against a person who complains about discrimination based on these characteristics. Under local law, it is illegal for an employer or housing provider to retaliate against an individual because the individual opposed an unlawful discriminatory practice or made a charge, or because the individual testified, assisted, or participated in an investigation, proceeding, or hearing.

You should also check your harassment policy to ensure that it bans harassment by employees or contractors against applicants and residents, regardless of their gender. For example, a non-harassment policy should prohibit harassment, intimidation, and abusive, foul, or threatening language or behavior directed at people because of their sexual orientation or gender identity/expression. You might identify discriminatory harassment to include severe or pervasive threats or other abusive and offensive conduct against a person because of sexual orientation or transgender status.

Harassment may include, but is not limited to, malicious behavior, sexual advances, use of derogatory names or terms, or intentional misuse of gender pronouns and names.

Even though many harassers believe their behavior is funny, flattering, or harmless, your policy should warn staff that such conduct is illegal and unreasonably interferes with the tenant's use and enjoyment of his or her home.

Step #2: Train Staff on Your Fair Housing Policies

To prevent fair housing trouble, all your employees must understand—and consistently apply—your policies and procedures without regard to the sexual orientation or gender identity of applicants and tenants.

Make sure your employee education program emphasizes that employees may not exclude or otherwise discriminate against an applicant or resident based on his or her real or perceived sexual orientation. In addition, employees should understand that your company's policy banning harassment includes sexual orientation.

Also, review your company's fair housing policies with your entire staff on a regular basis. Many companies require staff members to attend fair housing training or use online training resources at periodic intervals.

Finally, it's important to document employee fair housing training efforts. For example, you should require new employees to sign an acknowledgment that they received a copy of your building's fair housing policy and agree to abide by the policy. In addition, you may require employees to sign attendance sheets for fair housing training sessions. Keep the documentation in your files—you'll need it if an employee is ever accused of housing discrimination.

Step #3: Review Advertising and Marketing Materials

Review your advertising and marketing materials to ensure that they don't contain any discriminatory phrases or images based on sexual orientation. Laws protecting sexual orientation generally prohibit statements that express a preference for or against people with a certain sexual orientation.

Similarly, avoid subtle messages from the images used in your brochures and other marketing materials that people of a particular sexual orientation or gender identity are unwelcome at your building.

Step #4: Refrain from Unlawful Steering

To avoid discrimination claims based on sexual orientation or gender identity, you may not discourage prospects from living in your building because of their sexual orientation or “perceived” sexual orientation. For example, you could be liable if you discourage a prospect from living in your building based on an assumption that he's gay, even if he's really straight.

Avoid fair housing trouble by showing prospects all available apartments in your building that meet their needs, regardless of their sexual orientation or gender identity. You may not limit an applicant's choice of apartments by engaging in unlawful steering—that is, directing, encouraging, or discouraging applicants from living in certain areas or buildings.

It's also unlawful to provide inaccurate or untrue information about the availability of apartments for discriminatory reasons. For example, you may not tell a prospect that an available apartment has been rented, or limit information about suitably priced available apartments, because of his sexual orientation or gender identity.

Step #5: Review Application Form

Review your standard interview questions and application forms to ensure that they don't contain any biased questions—or questions that might be used in a discriminatory manner. You may want to remove any questions that ask about the sexual orientation, gender identity, or gender expression of the applicant; the relationship between household members; their marital status; and the name of an applicant's spouse or significant other.

Questions relating to a person's sexual orientation or gender identity—or questions intended to ascertain a person's sexual orientation or gender identity—are irrelevant and should be avoided. Relevant questions pertaining to the tenant's ability to pay rent on time might ask about credit history and references.

 

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