Federal and State Fair Housing Issues. The federal Fair Housing Act, prohibits discrimination based on:
- Race; Color; National origin; Religion; Sex; Familial status; Disability.
Oregon’s version contains additional protected classes:
- Race; color; religion; sex; national origin; children, disability (also: source of income, domestic violence survivors, marital status, sexual orientation, and gender identity).
Procedures. With the caveat that the following general guidelines are based on cautionary rules (i.e., balancing a “choice of evils” approach, discussed below) rather than dealing with specific factual situations:
Don’ts. Avoid the following:
- Inconsistent verification procedures;
- Screening procedures that could be interpreted as based upon ethnicity, immigrations status, country of origin, citizenship, etc.;
- Refusing to rent because you believe the applicant may be an undocumented alien.
- Treating applicants differently based on their country of origin.
Do’s. Proper tenant screening procedures must be objective and consistent for all applicants. While you may ask about immigration or green card status, it must be done for everyone - even of those you have no question about.
Even when responding to prospective applicants, follow the same caution you would as if they were an actual applicant. Make sure your Park documents are consistent with your promotional literature.
The better screening approach may be (in my opinion) not to vet immigration status at all. Don’t even go down that path. Just consider the choice of evils analysis: It is not a crime or violation of state or federal Fair Housing laws to fail to inquire about immigration status. Inquiring can create a perceived intent to discriminate, ergo, a potential Fair Housing claim. Why go there? Plus, there are Fair Housing testers who may be lurking about. Not asking creates far less risk than asking.
Dealing with ICE. If contacted in person, first ask for identification. Verify the information, if necessary. Do not voluntarily turn over tenant information. If the ICE official asks for tenant documents, require that he/she provide a subpoena or warrant signed by a judge. Then consult your lawyer. If contacted by phone or mail, do the same; do not respond yourself. When dealing with ICE in person or via phone/mail, thoroughly document what occurred, when, and what was said. Retain your records!
General Discussion. Acceptable documentation from tenant applicants includes such things as:
- Government-issued photo ID (e.g., driver’s license, passport)
- Individual Taxpayer Identification Number
- Visa or residency documents
The best approach in screening is to focus on those things which bear directly on whether the applicant can meet those requirements necessary for being a good, dependable, and financially responsible tenant; e.g., creditworthiness, income, rental history, and criminal background. It is always important to remain consistent.
Maintain written rental criteria for distribution to all applicants. I personally would avoid publishing that information on a website. Do not describe it over a phone call with an applicant or ICE official. It would be better to invite applicants to identify what rental information they would like. If you have nothing in writing, be careful about volunteering information. If in doubt, consult you attorney.
Give the same rental literature to all applicants. Make sure it is current. Retain copies of all documents given to all applicants. Avoid answering questions about such things as demographic makeup in the Park. Even oral conversations can be documented (or recorded) by an applicant or tester later and used against you. Always be polite.
When denying an application for tenancy make sure the reasons are clearly set out and are legal and verifiable. Avoid subjective reasons that could be argued to be discriminatory. If in doubt, have your attorney or expert review the stated reasons for denial before sending.
The above information is general in nature and should not be construed as legal advice. MHCO Members should consult with their own attorney if they have any questions or concerns when contacted by ICE.
