HUD’s Office of General Counsel has issued a memorandum providing guidance discussing how the Fair Housing Act applies to a housing provider’s consideration of a person with limited English proficiency (LEP), the limited ability to read, write, speak or understand English. The Fair Housing Act prohibits both intentional housing discrimination and housing policies and practices that have an unjustified discriminatory effect because of race, national origin, color, sex, family status, disability, and religion. People with limited English proficiency are not a protected class under the Fair Housing Act. However, there is a close link between LEP and certain racial and national origin groups.
Because of this close link, selective application of a language-related policy, or use of LEP as a pretext for unequal treatment of individuals based on race or national origin violates the Fair Housing Act. In addition, restrictions on access to housing based on LEP are likely disproportionately to burden certain protected classes, and if not legally justified may violate the Fair Housing Act under a discriminatory effects theory (see Memo, 6/29/15). Numerous court decisions are cited throughout the guidance.
The memorandum notes that 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. Thus, courts have found a connection between language requirements and national origin discrimination. In addition, as with language discrimination, discrimination against non-citizens or against those with a particular immigration status is not national origin discrimination, but a requirement involving citizenship or immigration status will violate the Fair Housing Act when it has the purpose or unjustified effect of discriminating on the basis of national origin.
Regarding intentional discrimination, suspect practices include advertisements containing blanket statements such as “all tenants must speak English,” or turning away all applicants who are not fluent in English. The guidance, citing a court decision, notes that LEP persons may speak English well enough to conduct essential housing-related matters, or have a household member who can provide assistance as needed, making a blanket refusal to deal with LEP persons in the housing context unlikely to be motivated by genuine communication concerns.
Regarding discriminatory effects, the guidance states that a housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. Determining whether a policy or practice has a discriminatory effect involves the three-step, burden-shifting legal evaluation of the statistical evidence of a discriminatory effect (see Memo, 2/8/13). First, an LEP person, or HUD in an administrative proceeding, must prove that the housing provider’s policy or practice has a discriminatory effect, a disparate impact on a group of persons because of national origin, race, or other protected characteristic. Second, the housing provider must prove that the policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. Assertions based on generalizations or stereotypes about LEP persons will not satisfy this burden. If the second step is demonstrated by the housing provider, then the LEP person or HUD must prove that there is a less discriminatory alternative policy or practice.
Discussing the second step, the guidance states that English proficiency is likely not necessary in the landlord-tenant context where communications are not particularly complex or frequent, or where for example, a landlord employs a management company with multilingual staff or otherwise can access language assistance. In the seller-buyer context, refusing to allow an LEP borrower to have mortgage documents translated, or refusing to provide the borrower with translated documents that the lender or mortgage broker has readily available, is likely not necessary to achieve a substantial, legitimate, nondiscriminatory interest. Likewise, restricting a borrower’s use of an interpreter, or requiring that an English speaker cosign a mortgage, likely will not prove justifiable.
Discussing the third step, the guidance states that allowing a tenant (or home-buyer or mortgage-borrower) a reasonable amount of time to take a document such as a lease to be translated, could be a less discriminatory alternative. Other less discriminatory alternatives in an LEP case might include obtaining written or oral translation services or drawing upon the language skills of staff members. Similarly, if the family has a member who speaks English or brings another person along to interpret, agreeing to communicate through these individuals could be an alternative to refusing to deal with anyone who does not speak English.