Documentation Is Critical in Discrimination Cases

By Lisa Scoble posted 19 days ago

  

Documentation Is Critical in Discrimination Cases

It is easy to make assumptions, draw conclusions, and ultimately make decisions that may not be based on facts. As a real estate professional, you work with a diverse general public who must be treated equally under the law. Explaining away a comment or action by saying “you didn’t mean it that way” is not a defense against discriminatory practices.

Here is a real-world scenario that illustrates the importance of good recordkeeping. It also shows the impact of a claim on your business regardless of whether the claim is settled in your favor.

SITUATION

A commercial leasing agent was responsible for maintaining a multi-unit apartment complex in a growing, multicultural city. The agent handled rentals for the complex as well.

PROBLEM

An existing tenant contacted the agent to ask about the availability of one-story units. The tenant claimed she saw a one-story unit available on a flyer posted across the street. The tenant requested a transfer to a one-story unit due to a mobility-related disability. The disability was not obvious to the agent. The agent informed the tenant there were no one-story units available. The tenant accused the agent of discrimination due to her disability and filed a complaint with the U.S. Department of Housing and Urban Development (HUD).

MISTAKE
The agent denied discriminating against the tenant based on her disability, but the tenant alleged the agent was rude and insensitive to her condition. This was not a clear violation of the Fair Housing Act (Title VIII of the Civil Rights Act of 1968).

RESULT

After the tenant filed the complaint, numerous proceedings took place. It was the agent’s position the building could not accommodate one-story section 8 tenants due to inventory, not because the tenant was disabled. The tenant argued the agent should have suggested other buildings in the area that had availability. The HUD investigation revealed there was no documented communication from the tenant of her desire for a one-story unit and her disability was never disclosed. The tenant was not transferred to a one-story unit after her lease expired because of rental inventory. After incurring defense costs, this matter was dismissed in favor of the agent.

PREVENTION

Real estate professionals should be familiar with fair housing laws and take measures to ensure adherence to them. Document attendance at fair housing educational programs and communicate with buyers and sellers about the importance of these laws.

Prohibited practices that lead to fair housing claims include the refusal to rent, lease, or negotiate; offering different terms or affording different treatment; keeping records describing clients/ customers; and failing to make reasonable accommodations. Never work with a discriminatory seller or owner, and always provide equal service to all. These standards of care will reduce the possibility of discrimination claims and a compromised reputation.

When a client with a physical disability is ready to rent or buy a property, helping coordinate the accommodations they need is of critical importance. Providing equal service to all and not making assumptions about your client’s preferences will reduce the possibility of discrimination claims. It’s not just the law—it’s the right thing to do.

For more information about E&O coverage and other risk management topics, visit pearlinsurance.com.
This article was produced in conjunction with AXA XL and is not to be taken as legal advice.
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