Many years ago, I wrote an article for NCHM’s quarterly print magazine called “Between A Rock and A Hard Place,” that focused on HUD’s decision to eliminate the issue of intent in issuing charges of discrimination. I am getting a similar sensation now as I ponder the ramifications of HUD’s recently issued “Discriminatory Effects” regulation.
Paul R. Votto, in his excellent article that should be considered a companion piece to my own, gives an operational perspective on the regulation, offers for your consideration the point that, “[There is the] possibility that an owner or managing agent’s practices may have the effect of being discriminatory even if it doesn’t actually lead to discrimination.”
What most troubles me about the new standards (which, as Paul points out in his article, HUD is somewhat claiming rather disingenuously isn’t all that new — until you consider the Fair Housing Discrimination app, and so forth) is that there is that there is what appears to me to be disconnection between what is fair, and what is just. The Fair Housing regulation is unambiguous and reasonably clear. HUD’s regulation on discriminatory effects, as a practical matter, is less so.
From the compliance standpoint, there have always been so-called gray areas. But these do not dominate the playing field as much as does the discriminatory effects standard, i.e, could a housing provider have done something in a way that is “less discriminatory?” “Less discriminatory is more inherently subjective than “not discriminatory” in that it implies a degree of discrimination in one instance, but not in others. This can have disastrous effects when it comes to compliance.
For this reason, I am strongly suggesting that housing providers take this opportunity to evaluate and assess every policy, practice and procedure they have or are using — which is not the same thing as having — and do so with an eye toward reworking them, rewriting them, and educating staff on them again. The purpose should be to get rid of those policies, practices and procedures, written or otherwise, that are antiquated or that have not been followed, used or enforced for years, and start afresh. If you wait until a complaint is filed, it’s too late. The time to do this is now!!
NCHM can assist you with this process. No one can, of course, guarantee that you will never face a civil rights litigation. But you do have a better chance of avoiding losses when you choose not to rest on laurels or traditions, and instead update and educate.