Sooner or later it may happen. A tenant will file a complaint against your apartment community claiming you have violated the Fair Housing Act by discriminating against them. A disgruntled former tenant, as their parting shot at you, will most likely make the complaint. After all, it doesn't cost anything for them to file the complaint, it is sure to cause you aggravation, and there is no penalty if they “lose”.
If someone files a Fair Housing Complaint against you in Austin, the Austin Human Rights Commission (“AHRC”) will investigate the complaint. The Texas Commission on Human Rights will likely investigate complaints concerning properties outside the City of Austin. The Investigator is a neutral party who is trying to determine if there is a violation of Housing Ordinance of City of Austin or the Federal Fair Housing Act. You will be given a statement that sets out the substance of the complaint. You may be given a form to complete which is your opportunity to respond. Of course, if you have been reading my prior articles for this publication, you and your staff have been following the law and are not guilty of violating the Fair Housing Act. Nevertheless you should take the complaint seriously.
What do you do? The easy answer is to take two aspirin and call your lawyer. However, there is no legal requirement for you to hire an attorney. Whether you handle the matter yourself or hire an attorney, here are some pointers:
1. The notice of complaint from the AHRC will ask you to respond within 10 days after your receipt of the complaint. Respond timely and send your response by certified mail, return receipt requested. Ask that your response be kept confidential and not be released. Your response must be signed and notarized.
2. Read the complaint carefully and only respond to the complaint made. The complaint will let you know who is making the charges against you and why. If they are complaining about you discriminating against them for x, do not go into an explanation about y. Only respond to the issues in the complaint. Include all relevant facts and information. Amending your response at a later date may require the consent of the Administrator of the AHRC, therefore, give a comprehensive and complete response the first time.
3. Interview your staff and do your own investigation before responding to the complaint. Be sure that what your firm is being accused of is not true. If you believe that you do have a policy or procedure that violates the Act, fix it immediately. If you believe that you have violated the Act, try to resolve the complaint by conciliation. Conciliation is a settlement and the Administrator of the AHRC must approve it. If the complaint is resolved by conciliation, the case will be over and you can devote you time and energy to something else.
4. Provide information that supports your position. For example, I had a client who was accused of discriminating against residents with children. Our defense included providing the investigator with my client's monthly newsletter that included pictures and announcements of the children's activities that the apartment management organizes every month. In addition, the brochures they use advertise the amenities such as playscapes and play areas that are specifically provided for children. This evidence directly contradicted the fair housing complaint.
5. You may be asked for a copy of your rent roll. I generally do not hesitate to provide the rent roll or copies of the leases to the AHRC Investigator with the understanding that the information will be kept confidential. Usually, the purpose of the Investigator wanting the rent roll is so that they can evaluate your tenant mix to see if the tenant mix supports the fair housing claim. For example, if the claim is that you denied rental to someone because you discriminate against people based on ethnicity, the investigator may evaluate the rent roll to see if the ethnicity of the tenants who have obtained leases supports the discrimination claim. If the investigator asks you a question that would require you to speculate, do not answer it.
For example, if they ask you how many Hispanic residents you have, do not try to answer a question like that. First, if you know the answer to that, it may cause the investigator to think that you are keeping track of that statistic for some illegal reason. Secondly, unless you have asked each resident for their ethnic background, which you should not care about, you will only be guessing at the answer. Do not guess or put yourself in a position to have to guess based on someone's last name. If you give the investigator the leases, they can contact whomever they need to find out the tenant mix for themselves and make their own determination of the tenants' ethnicity.
6. If there are third parties who can bolster your case, speak with them and let them know that you may give their contact information to the Investigator. For example, suppose you are accused of discriminating against people with disabilities. If you have residents who are disabled and for whom you have made accommodations for, ask them if they will attest to your history of non-discrimination with them.
7. If your Community Policies, brochures or other written materials, contain information that demonstrate that you are committed to complying with fair housing laws, provide them to the Investigator even if you have not been asked. If your Resident Handbook contains a “Fair Housing Statement,” provide the Investigator with a copy. If your advertising brochure contains an Equal Housing Opportunity symbol, point it out to the Investigator. These materials do not necessarily prove that you comply with the fair housing laws; however, they do demonstrate that you communicate to your residents that fair housing laws exist for their protection and that you are committed to complying with them.
If the Investigator finds that you have violated the Housing Ordinance of City of Austin or the Federal Fair Housing Act, the next step will be for the City Attorney to file suit on behalf of the AHRC and the complaining party. All during the process you may settle the matter at any point by conciliation. If the Investigator concludes that a reasonable cause does not exist to believe that a discriminatory housing practice has occurred, the complaint will be dismissed by the AHRC.
Just because the AHRC dismisses the complaint that does not mean that is the end of the matter. The person complaining may always file a civil action in state court. A civil action must be commenced no later than two years after the occurrence or termination of an alleged discriminatory housing practice. Usually, if the complaint was dismissed by the AHRC, the person complaining will lose interest and move on to other things in life.