kimball, tirey & st. john llp ...kimball, tirey & st. john llp 1 41stannual seminar &...

Kimball, Tirey & St. John LLPwww.kts-law.com

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41st Annual Seminar & Tradeshow

May 20 – 22, 2018

LAX Mariott

Fair Housing Workshop

Focus on Maintenance

presented by Partner Susie Lein

MAY 20‐22, 2018 PACIFIC SOUTHWEST


Legal Disclaimer

• This training offers general information only, and is not intended as legal advice

• Attendance at this training does not create an attorney‐client relationship with the speaker or the firm they represent

• For legal advice on specific issues, please contact an experienced attorney

• The information contained in this training may not be duplicated in any way or duplicated in any other medium without the prior written consent of Kimball, Tirey & St. John LLP


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Introductions

• Your instructor and our law firm

• Handouts and housekeeping

• Overview for today– Fair housing laws and protected classes

– Putting fair housing law into practice

– Disability & accommodations

– Harassment & sexual harassment


Why Fair Housing for Maintenance Personnel?

• More exposure to potential problems than other staff

• What you don’t know can end up costing your company a lot of money


Who Can Be Named?

• Anyone alleged to have committed the act– Owners, on‐sites, management,

maintenance staff, etc.

• Includes direct and vicarious liability – HUD’s final rule re: harassment

– Follows the line of authority

• Personal liability (importance of training)


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Penalties and Awards

• Fair housing violations cost you and your company $$$!– Legal fees

– Settlements

– Judgments

• Can include non‐monetary penalties – Signs/notices

– Required fair housing training

– Monitoring for fair housing compliance


Who Can File a Complaint?

• Anyone who believes their fair housing rights have been violated

• Types:– Residents,

applicants, testers, guests, agencies, employees


The Laws

• Federal – Civil Rights Act of 1866

– Fair Housing Act of 1968

– Fair Housing Amendments Act (1988)

• California– Unruh Civil Rights Act

(1959)

– Fair Employment and Housing Act (FEHA)


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Enforcement & Statute of Limitations

• Federal: HUD /DOJ

• CA: DFEH

• Private fair housing agencies

• Fair housing attorneys


Federal Protected Classes

Race Color Religion Sex

National Origin

Familial Status

Handicap ‘Disability’ in California


California Protected Classes

Marital Status

Sexual Orientation

Age

AncestryMedical Condition

GenderGender

ExpressionGender Identity

Genetic Information


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California Protected Classes

• Local Ordinances– Berkley: students

– Santa Cruz/San Francisco: Size

CitizenshipPrimary LanguageImmigration Status

Arbitrary Discrimination Perception and Association


No Discrimination

What is wrong with these statements?– We don’t need any more ____________ people here.”

– “___________ make too much noise.”

– “__________ people are always making trouble around here.”

– “You have to have a good job to live here.”

– “___________? They make the worst Residents!”

– “Are you married?”

Best Practice: Don’t say anything that states or implies a restriction, limitation, or negative opinion about any person or group.


No Preferences

What is wrong with these statements?– “We prefer _____________ live here!”

– “Don’t worry, since we are the same _____________, we will help you out if you need anything.”

– “Here’s my number, call me directly, and I’ll help you out.”

Best Practice: Do not say anything that shows or implies a preference towards any person or group.


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Case Study No. 1

A prospective resident approaches you outside and asks,

“What kind of people live here?”

What do you answer?

DON’T:

– Describe the demographics of the community or neighborhood

– Disclose any personal information about any other resident

Best Practice: – Anyone who qualifies is welcome to live here

– Refer them to the management office


Maintenance Team Policies

• Company attitude starts at the top

• Code of conduct

• Treat all residents the same – No discrimination

– No preferential treatment


Maintenance Requests

• Law requires equal service to all residents

• First come, first served unless emergency or company has priorities based on what can be done in‐house

• Keep good documentation


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Emergencies

• What constitutes an emergency? (have a list prepared)

• Have a standardized response for all other service requests (turn around time and protocol to be followed)


Intake of Maintenance

• Have a procedure in place, followed by all

• Get detailed information so you are prepared

• Date, time, resident info, exact nature of problem, animals in unit? Who will be home at time of repair?


Case Study No. 2

Resident Rachel sees you in the hallway and tells you that her faucet is leaking. She asks since you are “in the neighborhood” if you can stop by before you leave to fix it.

DON’T:– Fix it just because you happen to be in the neighborhood

– Make promises you can’t keep

– Ignore it or just forget about it

Best Practice:– Nicely ask her to follow up with a maintenance request (per your

company’s procedure)

– Let your Manager/Supervisor know to address any follow up needed


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Handling the Maintenance Visit

• Treat everyone the same without regard to the protected class of the resident and be able to prove it!

• Don’t make a repair without complying with procedures

• Don’t make unrealistic promises…and keep the resident informed as to any delays.

• Document everything (including any deviations from procedure or info related to request ‐ ex. refused entry, kids home alone, refused service…)


A Resident’s Home is His/Her Castle

• Respect your resident’s privacy and personal things (don’t touch or make comments)

• Don’t go in areas of the home where you are not making repairs

• Don’t wear more protective gear than is necessary


Handicap/Disability

Definition

• An impairment that limits one or more of life’s major activities or makes it difficult– Certain medical conditions,

mental/ psychological or physical conditions

– Record of having a disability/or being regarded as having a disability


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Two Rights

*To allow the person full and equal use and enjoyment of the rental property.


Requests for Accommodations

• Requesting an accommodation or modification

• Verifying the disability need and relationship

• Is the request reasonable?


Case Study No. 3

You see John walking around with an unauthorized dog on your “no pet” property. You approach John and remind him that no pets are allowed. John tells you, “I need my dog because I am sick.”

What do you do?

Don’t:

– Comment on whether or not you believe them

– Get into any further argument with them

Best Practices:

– Don’t confront residents about potential lease violations – report to management!

– Notify your manager/supervisor for immediate follow‐up


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Reasonable Modifications

• Physical change to the premises to make it accessible

• Done at tenant’s expense

• Workman‐like manner

• Restore interior

• Common area modifications


Case Study No. 4

Steven calls you and asks you to install grab bars in his unit.

What do you do?

DON’T:– Say “Yes” or “No”

– Ignore the question or delay response

Best Practices:– Request they follow up with your management team in writing per

– your company policy

– Let your manager/supervisor know to initiate necessary follow up


Reasonable Accommodations

• Exception to rules, policies, practices, services– Examples: parking, assistive

animals

• May or may not cost money


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Harassment

Types

• Hostile environment– Defined

• Quid pro quo– Defined

• Applies to – Harassment based on race, color,

religion, national origin, sex, familial status, or disability

– Includes sexual harassment


Harassment (General)

Using intimidating or discriminatory phrases, gestures, name calling or gossiping about residents is illegal

Examples:– Enforcing “rules” excessively against kids

– Telling other residents about one resident who has a disability and has been given an accommodation

– Telling residents about your personal opinions in regards to political issues (ex. immigration, gay marriage)

– Becoming hostile (even subtly) to a resident who makes a greater number of requests than other residents


Examples of Sexual Harassment

Hostile Environment– Visual (Obscene gestures, display

of inappropriate objects, emails)

– Verbal (Discussing graphic sexual details, sexually derogatory language, teasing about sex or sexual orientation)

– Physical (Unwanted touching, brushing up or bumping another intentionally, blocking someone’s way)

• Quid Pro Quo


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Avoiding Sexual Harassment Claims

• Only enter an apartment because of resident’s request, emergency or proper notice of intent to enter (if resident says can’t come in, check with office)

• Don’t enter if questionable to do so

• Always knock loudly before entering

• Leave a follow up note letting resident know you were there and what you did

• Draw the line between friendliness and becoming friends with residents

• Avoid consensual romantic relationships!


Written Procedures

• If company has a written procedure that spells out how you handle complaints, be sure you are familiar with it

• Many include a zero tolerance policy in employment manual (no second chances)

• Make sure policy is clearly understood, could be basis of termination of employment

• Be sure all complaints are investigated


Other Fair Housing Tips

• Caution about conversations with each other

• Be the eyes and ears of management– Drugs

– Pot growing/pot smoking

– Hoarding/unsanitary conditions


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More Fair Housing Tips

Be the eyes and ears of management (continued)

– Unauthorized persons/pets

– People not cleaning up after animals

– Suspected terrorist activities

– Observing discrimination between residents

– Loud noises

– Acts of vandalism occurring

• Document events


THANK YOU!

www.kts‐law.com

This concludes our presentation today.

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