HUD's new Guidelines for Real Estate Licensees and LEP Clients

by Karla Allen on 2017-12-06 3:32pm

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HUD’s new Guidelines for Real Estate Licensees and Limited English Proficiency (LEP) Clients


By Karla Allen, At Your Pace Online

December 28, 2016


With immigration and a person’s immigration status front and center for many in the United States in 2017, what does that mean for a real estate licensee when a prospective client enters the office and says in their own language that they don’t speak English, such as No hablo ingles (Spanish), Hindi ako nagsasalita ng ingles (Tagalog), or Tôi không nói được tiếng Anh (Vietnamese)?


To answer that, we’ll take a quick look through a Fair Housing lens at that question by breaking down the much anticipated September 2016  U.S. Department of Housing and Urban Development, HUD, release, Guidelines on Fair Housing Act Protections for Persons with Limited English Proficiency.


In these Guidelines, HUD definitively links the Fair Housing protected class of ‘national origin’ to those persons with Limited English Proficiency, or LEP. LEP “refers to a person’s limited ability to read, write, speak, or understand English.” Here we’ll look at the language straight from the memo, even though the first part of this licensees probably have memorized:


“... the Fair Housing Act prohibits discrimination on seven protected bases, including national origin, which is closely linked to the ability to communicate proficiently in English.


Housing providers are therefore prohibited from using limited English proficiency selectively or as an excuse for intentional housing discrimination. The law also prohibits landlords from using limited English proficiency in a way that causes an unjustified discriminatory effect.” (Emphasis added.)


HUD also points out that national origin may not be the only protected class that is affected by LEP discrimination as, for example, many religious or racial communities share common languages as well and therefore discriminating against those who are LEP might trigger additional Fair Housing complaints for religion or race. Neither does proof of U.S. citizenship or lack thereof guarantee immunity from a Fair Housing charge with LEP because the Fair Housing Act is generally interpreted to apply to everyone, no matter their citizenship status. Licensees who discriminate against anyone based upon their English speaking skills are playing with Fair Housing fire.


Real estate licensees can therefore consider this question answered, No, you may not discriminate against anyone because they are not speaking English. Likely many (most?) licensees who have been in practice for any length of time have had this issue come up at some point because, as HUD estimates, 9% of Americans qualify as LEP.


This goes further than just the obviously illegal act of posting a sign in your brokerage or rental office that says, “Only serving English speakers.” HUD confirms that even the most subtle discriminatory practices are going to get swept up in this LEP rule dragnet. The memo explains:


“A housing provider also violates the Fair Housing Act when the provider’s policies or practices have an unjustified discriminatory effect, even when the provider had not intended to discriminate. Determining whether a practice has a discriminatory effect involves a three-step legal evaluation of the statistical evidence of a discriminatory effect; whether the housing provider’s policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest; and, if so, whether there is a less discriminatory alternative policy or practice.”


In other words, even if a licensee did not intend to discriminate, if the practice had the effect of discrimination, the licensee will find themselves in trouble as well.


There are further examples and definitions provided by HUD in the Frequently Asked Questions on the Final LEP Guidance. This site offers everything from FAQs to actual sample documents that could help licensees navigating this rule.

What is an example of discrimination based upon LEP?

The obvious and easy example is simply a sign posted that says “only English speaking people may apply” in an apartment manager’s office. What is less clear is if a licensee selectively chooses which non-English speaking applicants to show property to or allow to fill out applications. Another more subtle method of discrimination is based upon an individual’s accent or appearance. Examples of discrimination are almost endless, with many nuanced variations.

The best policy both legally and for best practices in your real estate practice, is zero tolerance for discrimination. That goes for the licensee and every person in the office with whom prospective clients come in contact. Does the office receptionist greet the public when they come in the office? Train that individual in Fair Housing policy. How about the various office unlicensed assistants? Same thing – thorough Fair Housing policy training. If office vendors come into contact with your prospective clients or applicants, they better have a tutorial on how NOT to discriminate. The last thing you want to be responsible for, and you will be, is discriminatory comments from the water cooler guy as he passes through your lobby.

Therefore, it is worth spending some time reading and understanding the Final LEP Guidelines. By following HUD’s recommendations you and your real estate practice can always stay on the right, and legal, side of Fair Housing no matter what language your next client speaks!