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MnDHR: Housing Discrimination and the Minnesota Human Rights Act | Webinar

Hello everyone and welcome to today’s
webinar series, Housing Discrimination and the Minnesota Human Rights Act: Help your clients secure and establish stable housing. For today’s webinar, the audio
will be muted for participants. You will find the chat feature to ask questions.
Please type your questions into the chat box. We will hold these questions until
the end of the presentation. Today, we have Paul Ziezulewicz and Leonora White
joining us as our presenters. Paul Ziezulewicz serves as the Associate General
Counsel for the Minnesota Department of Human Rights. He assists the department
in overseeing discrimination investigations, drafting appeal decisions,
and providing legal advice to Commissioner and Department employees. Prior to joining MDHR, he practice as a housing attorney at Southern Minnesota
Regional Legal Services in Saint Paul, Minnesota. Lenore White is Human Rights Enforcement Officer at the Minnesota Department of
Human Rights since 2014, and she is a member of the Department’s Task
Force for the Minnesota Interagency Council on Homelessness. She earned her
law degree from the University of St. Thomas. Please welcome, Lenora White. Good morning everyone, and thank you for joining us
for the webinar today. We will be discussing information for service providers and
the Minnesota Human Rights Act. The purpose of today’s webinar is to provide service providers with the knowledge necessary to identify unlawful
discrimination while assisting clients and applying for housing, maintaining
housing, or leaving housing. A heart to house tenant in need of services may
face discrimination in all three phases of tenancy, learning how to identify
housing discrimination, and what to do when you encounter it will empower you
to remove barriers to housing for your clients. For today’s agenda, we just want
to go over the Minnesota Human Rights Act and the jurisdiction as it relates
to housing exemptions in the area of housing and then discuss areas where
your client may face discrimination and the beginning stages of tenancy, during
tenancy, and terminating the tendency, and at the end of the presentation, we have
resources for service providers, and we will leave some time for questions at
the end as well. So under Minnesota law, housing is a protected area under the
Human Rights Act. It is illegal to treat a person differently because of their
race, color, creed, religion, national origin, sex, marital status, disability,
public assistance, sexual orientation, or familial status. Under federal law, the
Department of Housing and Urban Development enforces the Fair Housing
Act. Federal law does not explicitly protect against housing discrimination
based on public assistance status or sexual orientations. Regarding federal
law, Minnesota is actually a leader when it comes to progressive civil rights, it
is not uncommon that a state or municipality provides more protected
classes than those set out in federal law. For example, in Madison Wisconsin,
protected classes include homelessness, political affiliation, genetic identity,
whether you’re in college, so for example, a landlord can’t refuse to rent to a
tenant who’s in college. Some examples of housing discrimination
include refusing to rent to a person because of membership in a protected
class, refusing to provide reasonable accommodations to applicants and tenants, treating a person differently during the tendency due to membership in a
protected class, and terminating a tendency because of a person’s
membership in a protected class, and if we take a look at the next slide, we can
go over some exemptions in the area of housing. So Minnesota statute 363 8.20 1,
discusses exemptions in the area of housing, where Minnesota statute 360 38.0
9 do not apply. Our landlord may be exempt under the following circumstances.
Under the first bullet point, with respect to 6, a nonprofit organization
that rents a room in the residence, it may discriminate with respect to 6. A
resident owner of a single-family dwelling that rents to another person, a
resident owner of a rental unit in a dwelling with no more than two units may
discriminate with respect to sex, marital status, public assistance, and sexual
orientation or disability. The third bullet point, a resident owner of a
building containing only two units may discriminate with respect to sexual
orientation. A resident owner occupied building containing four or fewer
dwelling units may discriminate with respect to familial status, this is also
referred to as the Mrs Murphy exception, and housing for the elderly may
discriminate with respect to familial status, and age, we just want to point out
that right now, age is not a protected class in the area of housing under the
Minnesota Human Rights Act. The next slide, we want to look at maximum occupancy codes and case law. Application of local, state, or federal restrictions
regarding the maximum number of people allowed to occupy a dwelling shall not
be regarded as familial status discrimination. If you’re working with a
client and you find that a landlord municipality is restricting the number
of occupants in a building beyond what state, local, or federal law requires that
may be an indication of discrimination so your client may want to contact us so
we can discuss the specific facts and later on in the presentation, Paul will
discuss the familial status in more detail. Okay thanks Leonora. So we’re going to
get into what possible signs of discrimination at the beginning of the
tenancy and that mainly is in regards to the tenant application process. So common things that tenants need to disclose when they’re applying for housing
include criminal history, sources of income, and size of family, and for each
of those topics, they’re areas of concern for us because they could result in
denying a person housing based on their protected class. Other questions that are
really, that are commonly asked have to do with rental history as well as credit
history, but for now we’re going to talk about these three topics, when it comes
to applying for housing. So why do we care about criminal history in housing?
Whether you’re criminal or not is not a protected class in, under the Minnesota
Human Rights Act, but a lot of us have criminal records, nearly 1 million of us
adults or 1/3 of the population have some sort of criminal record according
to the Bureau of Justice Statistics. As of 2012, the US accounted for only
about 5% of the world population, but almost a quarter of the world’s
prisoners were held in American prisons. Since 2004, an average of over
650,000 individuals have been released annual from federal and state prison, and
over 95% of current inmates will be released at some point. Those are
important, some background information to keep in mind as we look into criminal
history in the housing process. In minutes, or according to the FBI at 2017
Uniform Crime Report, African-Americans represented 27 percent of all arrests
nationwide, but only represented 13 percent of the total population
according to the US Census Bureau. Here in Minnesota, we have similar
numbers, 24 percent of all arrests statewide, according to the Department of
Public Safety Uniform Crime Report in 2017, 24% of African-Americans made up arrests, but they only accounted,
African-Americans only account for 5.8 percent of the total population. We see
that there’s a disparity in arrests and criminal history based on protected
class and that’s why we’re concerned, and the real hook here is that 2003 report
called the Minnesota statewide racial profiling report, dug in to traffic stops
from 65 law enforcement agencies throughout the state, and the state, or
the report found that officers subjected to, subjected a higher rate of
African-American drivers to discretionary searches in traffic stops
than the average total stop population. There was a 12.61% traffic stop
for African-Americans or discretionary search of a vehicle for
African-Americans at a traffic stop. While for the rest of the population,
there was only a 4.95 percent rate of discretionary searches
and all, but two of the 37 jurisdictions under this report, there were more
discretionary searches for African-Americans than non
African-Americans, and the biggest point here is that the report also find, found
that despite the fact that African-Americans were searched on the
discretion of the officer at a higher rate, evidence of contraband was found at
a higher rate for white people. So overall, 24 percent of discretionary
searches for whites produced evidence of contraband, while only 11 percent of
search for African-Americans produced evidence of contraband. So that’s why
this is a cause for concern for the department because if African-Americans
are being unfairly cited for criminal activity in the form of arrest charges
or convictions, a strict housing application policy regarding criminal
history may have a disproportionate effect on African-American people
without adequate justification. That’s where the Minnesota Department of Human Rights comes in here, and just this morning, the Star Tribune posted article
about the Minneapolis City Council discussing ending traffic stops entirely
because they fall so disproportionate, there’s such minor offenses and they fall so
disproportionately on African-Americans. So this is a conversation that we’re
continuing to have. So, you know, a lot of people are getting word that you need to
be careful when you consider criminal history when you’re, when a landlord
accepts housing applications, but how should, you know, how can a landlord look
at your clients housing application when it comes to criminal history.
Indeed, they, the department and HUD are not saying that a landlord cannot
consider criminal history when they are assessing a housing application, but HUD
recommends that landlords take individual assessments of the criminal
history. According to guidance entitled, the office of general counsel guidance
an application of Fair Housing Act standards to use criminal records by
housing providers from April 4th, 2016. Landlords should consider the fact or
circumstances surrounding the criminal conduct, the age of the individual at the
time of the conduct, and evidence that the individual has maintained a good
tenant history before and/or after the conviction or criminal conduct. The
landlord should also consider rehabilitation efforts, and I think HUD
is taking from an old case that had to do with considering criminal history in
the employment context. In a case called Green versus Missouri Pacific Railroad’s,
the court held that a defendant’s policy of refusing employment to any person
convicted of a crime other than a minor traffic offense at an adverse impact on
African-American applicants and was not justified by a business necessity. So the
court put out a test and said you should consider the nature of the criminal
offense or criminal conduct, the time that has passed since the offense, and the
nature of job held or sought. So I think what HUD is saying and the case law is
saying is, you know, create a policy that has some parameters, but also look at
each application on a case-by-case basis as opposed to having categorical automatic denials for certain criminal history. So according to
HUD, if someone is denied housing simply because they have arrest records, HUD
finds that, that’s discriminatory. The same HUD guidance I cited said, the mere
fact that a man has been arrested has very little, if any probative value in
showing that he has engaged in any criminal misconduct. For that reason, a
housing provider who denies housing to persons on the basis of arrests, not
resulting in conviction and not prove that the exclusion actually assists,
protecting residents safety and/or property. Another example is a no
felonies policy, my wife, the last apartment she lived in, the landlord said,
no felonies. Another example is someone saying regardless if you have a
conviction, whether it’s a disorderly conduct or felony assault, you’re barred from housing, you know, those are the types of policies that should, that
these categorical policies should, you know, you should keep an eye out for. So we talked about criminal history and
the application process, let’s talk about sources of income in the application
process. Unlike the Fair Housing Act, as Lenora
explained, the Minnesota Human Rights Act protects people regarding the status of
public assistance. So if a landlord is denying you a housing benefit or housing
because you’re on public assistance, that constitutes discrimination in Minnesota.
In addition, many people on public assistance may be disabled. For example,
people on Social Security that simply cannot work. So, you know, that’s a, that
could also disproportionately impact people with disabilities and I saw an
interesting question about the HUD no felonies policy, and we can answer that late, at the end of the presentation. Keep in mind that state law today allows
a landlord to deny a person housing because they are on Section 8, and a 2010
Minnesota Court of Appeals case made that ruling in a case called,
Edwards vs. Hopkins Plaza Limited Partnership. The court looked at federal
and state statutes controlling subsidized housing and determined that
the legislature intended the Section 8 program to be voluntary for landlords, but the court also said that the states
may choose to make denial of Section 8 tenants an act of discrimination. So
that’s something we should keep in mind, if the legislature wants to require
landlords to take Section 8, it’s not, this case is saying they can and in
making their analysis the Court also cited a 1979 case from our office, the
Department of Human Rights, where we said, you know, as of right now the law
provides that Section 8 is voluntary. The Minneapolis City Council enacted an
ordinance a couple years ago that stated a landlord cannot deny a person with
Section 8 housing simply because their on Section 8 and they cannot say, you know, it’s not for business, it’s not for discriminatory reason, it’s for
business reasons that we don’t want to take Section 8. So the state district
court in Hennepin County struck down that ordinance when the landlord sued
the city. The landlords made a compelling case that they’re not saying no to
Section 8 because they’re racist or against people that are disabled or on
public assistance, they’re doing it because the burdens of be participating
in the Section 8 program are so great and the court seemed to be persuaded
that the ordinance presumed landlords not taking Section 8 were bigots ,and so
the policy was irrational. The MinneapolisCity Council did appeal
this decision and so we’ll see where that case goes in the coming months. So again, example of discrimination based on public assistance, we had a case here in the
Department of Human Rights where the the charging party was seeking
emergency public assistance, help cover the cost of a security deposit in order
to lease a property. Although the charging party and respondent sign the
lease, the agreement was rescinded by the respondent after the landlord spoke with the County Human Services. The investigation by our
department found that the respondents decision not to renter the property was
simply because the persons was, sought public assistance status by getting help
with the security deposit. So that, you know, a landlord not taking a security
deposit here, in our view is a public assistance discrimination. I did
use that defense when I used to practice that if a landlord didn’t take public
assistance, there, or didn’t participate in the public assistance program, they’re
discriminating. The courts have not spoken as to whether it actually does
constitute public assistance discrimination, but that’s right, now how
the department used a denial in this context. Okay so the last topic, I
want to talk about regarding applying for tendencies in the beginning of the
tendencies is a landlords occupancy policy. A landlord, under the Human Rights
Act, cannot deny an application for housing because of a person’s familial
status, and familial status under the Human Rights Act, means the condition
one or more minors being domiciled with their parent, or the designee of the
parent, or parents guardian with permission from the parent, or the
parents guardian. So a lot of it has to do with whether, you know, the intent of
this, of the Act is, to protect people and to make sure they’re not being
treated differently simply because they have kids, but keep in mind that a
landlord can follow the occupancy policies guidelines of a local ordinance
and not be accused of familial status discrimination. So if a landlord, if a
family with six, with three kids tries to rent a two-bedroom apartment and under a
city ordinance, the room, the rooms could only accommodate three people, not
four, a landlord cannot be held liable for familial status discrimination. For example, the St. Paul City Code provides that a person in a single sleeping room must, the room must
have at least 70 square feet and where there’s two people in a sleeping room,
there must be at least 50 square feet per occupant. However, if a landlord has a
more strict maximum policy than a local ordinance, the policy could be familial
status discrimination. So let’s say, a landlord owns a building in Uptown and
he’s trying to keep the demographic of Millennials in the building, and the city
in a two-bedroom apartment would have allowed four people to live there, but the
landlord says, you know what, I’m only going to allow two people to live in
this apartment, that could be familial status
discrimination because the landlord’s restricting occupancy beyond what the
city has deemed to be safe and so that could result in less children being in
the building or less grandparents being in the building with their parents. So
that, so I think, if your client is being denied housing because of the size of
their family, it would be good to look up the ordinance in the city to see what,
what it says. So here are some examples, and we had
cases that touched on this issue in the last couple of years. One family lived in an apartment and the children were, according to Landlord,
making too much noise in the upstairs building and the landlord referred to the noise as running of little feet and legs, which
suggested he’s, she’s talking about children, and that the sound wasn’t that
great and the landlord said they’re not going to renew the lease to this family
unless they moved to a basement apartment, and so the family didn’t want
to live in the basement, and so they moved out and the new renters that the
landlord rented to, in this 50 unit building did not have kids, and the
investigator in this case found that the landlord was treating these tenants
differently simply because the family had two children, and that case settled
for $12,000 for the family, and the Landlord agreed to update its policies
regarding occupancy and to train employees regarding familial status
discrimination. Another example we had, I’m talking about
familial status, but a occupancy when it may also have a disparate impact on
people of net, of certain national origins, we had a case where an applicant
applied for an apartment and the applicant had three kids, but the
Landlord said she wouldn’t allow a family with more than two kids in the
apartment, even though the city said you could have the tenants family
in the apartment. The city said that it’s big enough under their ordinance and so
the investigation found that the state demographer published data which shows
approximately 20% of white households have family members of four or more.
However, other racial minority groups had a higher percentage of four or more
household members. Hmong families, for example, seventy percent of those
families have four or more people and four Mexican families up were up to
forty nine percent of families of four or more. This, so the client was a member of a protected class and the court, or we
found that there was a disparate impact on families of different national
origins as a result of this housing policy. So let’s talk about the analysis
and I’m trying, I’ll try to keep it as plain language as possible that a
department or a court would look at. If the landlord is saying you can’t have
any felonies on your on your record or landlord saying I’m not going to, I’ll
take families, but not families with more than two kids, or a landlord says you
have to be gainfully employed to live here, you don’t, you can’t be on public,
you can’t be receiving public assistance. So, well, if a landlord, has a rule that
is facially neutral, but has a disparate effect on a certain protected class so
whether it’s race, or gender, or national origin, there is a an analysis that
courts and the department use to determine whether this facially neutral
policy results in discrimination. So why don’t we use the no felonies example to
go through this analysis. First, the tenant to challenge a policy has to
prove that the practice would cause or predictively cause a discriminatory
effect, or a disproportionately negative effect on a protected class. So for
example, the no felonies policy from HUD or from any landlords, is there data out there that suggests more members of a protected class have
felonies than not. The tenant would have to prove something like that and come up
with some data to establish the first its first burden under the analysis, and then the landlord could, has the burden to come back and justify it ,policy so in the no felonies example, perhaps a landlord will say it’s
because of safety, and safety is a hard interest to beat. So that could be a
legitimate non-discriminatory reason for having a no felonies policy. If the
landlord meets its burden there, then the tenant can come back and prevail still
if it can prove a less discriminatory way to forward the interests of safety.
So I’m just thinking out loud, but for a no felonies policy, maybe they can have a
policy that is no violent felonies. So if someone committed a felony by stealing
money, but it didn’t involve hurting anyone, could that be less restrictive
and still for the interests of safety, or what about a no felonies policy within
the last five or ten years. Those are just examples, and I don’t know how a no
felonies case would come down if it were challenged in court, it hasn’t been
challenged in. So that’s a quick loss walkthrough of what your client would
have to prove if he wanted to challenge a discriminatory housing practice that
appears facially neutral. There’s a case, the most recent disparate impact case in
Minnesota is called Crossroads Residents versus MSP Crossroad
Apartments and you should look into that case because it’s about a housing
provider that upgraded its building and in the process said that they’re going to no
longer take Section 8, that they’re limiting occupancy to two
bedrooms no matter what the size, and they also required an increased
increased improvement on criminal histories and housing histories, and so
tenants filed a class action saying these new policies are
disproportionately hurting members of a protected class. The tenants survived a motion to dismiss from the landlords and that case settled
with about $1,500 going to each displaced tenants. The landlord’s also committed
about 200 thousand to preserving affordable housing in the Twin Cities. So
it’s not a lot of case law on this, but that’s the most recent one. Okay, we’ve
talked about discrimination before the tenancy occurs. Now, let’s talk about some
discrimination that you might, your client might run into while while housed.
So the first topic is a change in familial status while you’re living in
the apartment. So what happens if a tenant has, is on a lease where it’s just
the one person and that person gains custody of a child or that person
becomes pregnant. Under the Minnesota Human Rights Act, the definitions of
familial status and gender discrimination include being pregnant, so
even though pregnancy wasn’t listed when Leonora cited the statute, if you’re
treated differently because you’re pregnant, that constitutes gender and
familial status discrimination under the Minnesota Human Rights Act. In addition,
the landlord-tenant statute here in Minnesota says that a landlord, if a
landlord tries to evict a tenant simply because they have a child, because that
child is not on the lease that is unlawful and if the landlord wants to
terminate a lease after someone has a child, one year must have elapsed from
the commencement of the change in the familial status. So I read that as you
have to wait a year after the person has the baby or adopts the
child. In addition, a landlord has to provide six months notice in writing
that it’s terminating the tenancy. Keep in mind that if a tenant otherwise
breaches the lease by failing to play rent, or does something she’s unrelated to her pregnancy or the person obtaining custody of a child, the
landlord still has the right to terminate the lease. Okay, I’m going to
turn it over to Lenora to talk about request for reasonable accommodations during the tendencies. Hi again everyone, so I want to highlight
the second area, some of your clients may experience discrimination in during
tendencies which is request for reasonable accommodations. This may be
one of the most common complaints we receive from individuals in our day to
day practice here at the Department of Human Rights. So a landlord must make a
reasonable accommodation for a person’s disability and that discrimination
includes, potential discrimination includes, a refusal to make
accommodations and rules policies practices or services, when the
accommodations may be necessary to afford person with a disability equal
opportunity to use and enjoy at dwelling. So requests for reasonable accommodations are something that you as service providers are pivotal in
orchestrating for tenants with disabilities. You can help health care
providers provide documentation and make sure that your clients landlord receives
the documentation, which can be a daunting task for dependent with a
disability. So if we move on to the next slide, who is a qualified disabled person
under the Act? The Minnesota Human Rights Act states that any person who has a
physical sensory or mental impairment which materially limits or one or more
major life activities, this is also any person having a record of an impairment,
and any person regarded as having such an impairment. So under the Minnesota Human Rights Act,
an impairment must materially limit a major life activity. This is less, this is
a less stringent standard than substantially limiting which is required
under the ADEA or Fair Housing act. A major life activity includes
things such as, caring for oneself, performing manual tasks, seeing, hearing
eating, sleeping, walking, standing, lifting, also keep in mind that if you are
working with individuals who say that there are, they’re recovering from
substance abuse, while it’s not always a disability, if that person is seeking
treatment and requires an accommodation while they are in recovery that may
qualify as a disability under the Act. It really just depends and if that person
were to feel that they were being discriminated against in the area of
housing, that is certainly something they should contact the department and we can
discuss that with them further. So if we move on to the next slide, legal elements to establish a reasonable accommodation. So if your client says, you
know, I’ve asked for an accommodation, I’m being denied, and they may have to take
legal action. This is just kind of what they would have to show, they would have
to show that they’re requested accommodation is linked to a disability
related need, that the accommodation was necessary to afford an equal opportunity
to enjoy the the dwelling, you know, their place of residence, and that the
accommodation was possible to implement. If we move on to the next slide, so the
Department of Human Rights construes, we require that an interactive process and
which is a discussion between a landlord and attendant take place when a tenant
requests a reasonable accommodation and we suggest that both housing providers
and tenants should document these discussions. Examples of reasonable
accommodations, permitting an assistance animal in a building where there is a no
pets policy, granting a person in the some parking space near the apartment
building entrance due to a disability that impairs mobility, permitting a
tenant to pay rent for one bedroom when they’re actually living in a two-bedroom
apartment where medical equipment occupies one of the, one of the bedrooms,
and in case we had a, we investigated here at the department, we had a tenant
who owned a condominium that was managed by another, by respondent and the tenant
psychiatrist submitted a letter to the respondent stating that attendant
required an emotional support animal. The tenants request for an emotional support
animal in the condo was a reasonable accommodation due to a disability and
then we found that the request was improperly denied by the respondent. So
they cannot prove that the tenants keeping an emotional support animal in
the condo resulted an undue hardship for the respondent. So this matter was
resolved in conciliation, the respondent agreed to provide training, managerial
and supervisory employees, update its declaration and rules and regulations,
and pay damages to the charging party. For the third bullet, where we’re
discussing whether allowing a tenant to pay rent for one-bedroom apartment while
actually occupying the two-bedroom apartment. The question here is whether
waiving the increase in rent is a reasonable accommodation, would that
result in an undue hardship for the landlord, you know, we would look at how
big is the building, how much more with the rent be, what is the reasonable
accommodation policy for the landlord, and loss of profit for a landlord does
not categorically render an accommodation request unreasonable. So
the next slide, we look at what if a housing provider decides to deny a
request for accommodation. That housing provider has the burden to show that the
accommodation request was unreasonable. In our statute states that accommodation
is unreasonable if it imposes undue financial or administrative burden,
or requires a fundamental alteration in the nature of the program. Other
instances where a housing provider need not accommodate is if there is a direct
threat or damage to property, and I’ll pass this back to Paul, he’ll give you a
quick story about a Pitbull in housing. So just an antidote to kind of chew on, I
had a client who wanted me to help him get an assistance animal into his
apartment and the animal was a Pitbull. HUD guidance says that housing providers
cannot discriminate based on an animal’s, an assistance animals breed, the type of
animal it is, or the size, and so I went ahead and took the case and said we’ll
get the documentation from your doctor and help you get this assistance animal
into your apartment. I looked up his case history at the firm’s database and it
turns out we had already permitted, or helped the tenant get a previous pit
bull into their, into his apartment and that Pitbull bit someone. So the
question is, you know, doesn’t become an undue burden or is there a direct threat
here by allowing a tenant who’s dog, a previous dog already bit someone to have
another dog, or another assistance animal. My boss said we shouldn’t take the case
because there’s not a reasonable likelihood of success and we have
limited resources, but I did pose this to a group of housing providers at another
training and they said it’s a completely different animal, you know, it’s still a
reasonable accommodation, it’s not the same, not the same animal and it
shouldn’t matter whether the second animal is a Pitbull or not. So that case
could really go either way. So let’s talk about, you know, during the tenancy,
criminal activity, during the tenancy and grounds for termination of a lease.
Cities are, have implemented policies where they require a landlord to
terminate the lease for criminal activity, even though a person is never
charged or even convicted of a crime. I wanted to show you this video today,
but I think it’s a little too long, but I encourage you to look at this story from
channel 5 that talked about a city where a hundred and fifty five people have
been, had their leases terminated for criminal activity even though they were
never charged or convicted. This story chronicled the person whose guests had
gone off the property and committed criminal activity and the person who had
lived there since 1996, this woman was, her lease was terminated by landlord and
she was living in a shelter when the news interviewed her. So you know, that’s
a problem why, you know, there’s no due process, there’s no conviction, but a land,
city’s directing, a landlord to terminate the lease based on criminal activity.
It’s a problem, but why does it concern the Minnesota Department of Human Rights and that is because that policy may disproportionately impact people of a
protected class, think of domestic abuse for example, according to the CDC phone
survey between 2010 and 2012, 1/3 of women reported domestic violence, only
1/6 of men reported such violence. So what happens if a guest or even a non
uninvited person, a person under the tenants control as the leases say,
commits criminal activity by attacking the tenant or damaging property there?
Technically, under the lease, and under the city’s crime-free ordinance, that’s
grounds to determinate the tenants tenancy even though she was a victim. I
had a case where a Public Housing Agency was trying to terminate benefits, or
Section 8 benefits after an Ex came in and beat up the tenant and threw, her
daughter through a door, and we fought for several months with the Housing
Authority because the lease said you cannot allow anyone in the premises to
commit criminal activity. This guy was arrested and went to jail for violating
a Danko. So that policy may have a disproportionate effect on women because
women are disproportionately victims of domestic abuse. That’s why, that’s why this concerns the Department of Human Rights, we haven’t
had a case on this or found, made any findings on it yet, but we’re keeping an
eye on it. There is a case against the city of Faribault, filed by both former
tenants living in federal and the ACLU and in that, in Faribault, the, if a
landlord, or if a police department determines disorderly conduct occurred
three times within the 12-month period or if one felony occurred within a
12-month period with no charges or convictions, the city can still revoke a landlord’s license if he doesn’t terminate the
tenancy where that alleged criminal activity occurred. So that, this is going
on in federal court right now and that’s up for trial and sometime in 2020. Okay, we’re going to move on to another
area of possible discrimination during the tenancy, and that’s sexual
harassment. Here’s Lenora. So the last area that we wanted to highlight that
your clients may experience discrimination and during tendency of
sexual harassment. The Act prohibits discrimination because of sex with
regards to terms and conditions or privilege of rental of any real property.
So what is sexual harassment under the Minnesota Human Rights Act? It
is unwelcome sexual advances requests for favors, sexually motivated physical
contact, or other contact, other conduct communication of a sexual nature when
the submission is made a term of housing submission or rejection is used as a
factor in affecting housing, or the conduct has the purpose or effect of
substantially interfering with the housing environment. You can take a look
at 363A.03 subdivision 43 for definitions. Two types of sexual harassment
we wanted to highlight under the Act are hostile environment and quid pro quo,
quid pro quo. Under hostile environment, we are looking
for is the behavior severe pervasive it does not all, it does not include stray
remarks, it may include verbal harassment, but in
general, we review the totality of the circumstances surrounding the harassment. Unwelcome sexual advances requests for favors, sexually motivated physical
contact, or other conduct of communication when it can be severe
pervasive and it’s similar to hostile work environment in the employment
context and under the Fair Housing Act. If you’re looking at, if you’re working
with a client and they’re trying to determine how do they show that they are
being subjected to a hostile environments. Case law that the
department uses to prove hostile environment is whether the tenant is a member of a protected class, if the tenant was
subject to unwelcome sexual harassment, if that harassment is based on sex, and
the harassment unreasonably interfere with the tenants enjoyment of the
premises. Now, the tenant does have the burden to prove that, which is a low
threshold when when coming to the department to make a complaint.
The next area we look at is quid pro quo harassment, and that’s literally
something for something. So when submission to conduct is a term
or condition of housing whether explicit or implicit this often means economic
consequences or risk of losing housing for the victim if they do not comply
with the request. Elements to show quid pro quo harassment include the tenant is
a member of a protected class that is subject to unwelcome harassment, the
harassment was based on sex ,and submission to unwelcome harassment in
order to receive housing benefits, or the tenants refusal to submit to result,
refusal to submit to the harassment results in loss of housing benefits. Some
examples of sexual harassment during tendencies. So an example of quid pro quo
harassment is, you know, maybe a landlord is requesting sexual favors from a
tenant in exchange for stable housing. In a case that was handled at the
department Scott V Trilogy Properties, we had a
female tenant at the time she signed her lease, the landlord was aware that she
was an exotic dancer, the department determined that the landlord’s request
for a lap dance from the charging party in order to allow her more time to pay
her rent, we found that that was quid pro quo sexual harassment and asking for the
lap dance and that the landlord retaliated against her when she turned
down a sexual advances. This matter was resolved through conciliation. Hostile
environment is making sexually inappropriate comments
and advances to tenants over prolonged periods of the tendency. Now, turn it over
to Paul to discuss issues when terminating the tendency. And I just want
to talk a little bit more about reasonable accommodations at the end of
the tenancy and, you know, this presentation talked about the more
nuanced areas of discrimination and you know we know that you know a landlord
cannot terminate a tenancy because of a person, the color of a person’s skin, or
because of the person’s religion or because of whether the person is single
or married. So you know, those are topics regarding terminating the tenancy that
we didn’t feel the need to cover, but keep in mind that a landlord has to
continue to provide reasonable accommodations basically up until the
tenant hands the keys over to the landlord and there’s a case in the
Eighth Circuit called Radecki V. Joura that basically said the landlord’s
duty to accommodate a tenant doesn’t end when the landlord gives a notice to
vacate, it ends basically, either when the writ of restitution is issued and the,
well, it doesn’t even happen there, it happens at the end of the tenancy, and
importantly the Minnesota Human Rights Act does not refer to tenant in its
housing language, it refers to person so that even suggests that it made perhaps
a person may ask for a reasonable accommodation after they move out to
pick up their items from storage. Other examples of reasonable accommodations is allowing a tenant additional time to move or foregoing of eviction based on
a breach of lease that may be related to a person’s disability. So if a person
breaches a lease, the landlord wants to kick them out for it, if it’s because of
a person’s disability, there may be a reasonable accommodation that the
parties can make to allow the tenant to stay on the property. So here are the
resources that we had, if there’s any that you would like to share with us on
the chat feature we’re happy to mention them in the next few minutes,
but these are what we have, the Minnesota Attorney General’s Office has a really
good landlord-tenant handbook and at that link and at the end, the end of the
document right where there’s resources, a lot of resources for tenants. Also
local legal aid offices clinics, expungement clinics can be found at lawhelpmn.org and home line is also a, if your clients not eligible for legal aid
services or clinics Home Line has I think a more liberal, they can provide
help to people with higher incomes. So in just a plug for the Department of
Human Rights that we are involved with an 11 agency Council to end homelessness
in Minnesota and they’re counting homelessness in Minnesota and working to
reduce it and we’re trying to keep this going as the administration, during the
administration changed. So thank you all very much for attending this webinar, we
got about five minutes left. Let’s take some questions. So one of the questions
that we’ve received is with the definition of reasonable accommodation,
can you expound on the difference between being regarded as having a
disability and having a disability. So if we go, if you want to take a look at
slide 21, where we are defining a qualified disabled person under the Act.
So some people sometimes a disability is impaired, is a parent, so you can maybe look at someone and determine that there is some impairment that they have,
other people sometimes are able to present a doctor’s note stating, you know,
I have visit ,I have this condition, and I require XYZ as an accommodation to
assist me. The regarded as is sometimes, if an individual meets requirement of being regarded as having an impairment, if they’re able to
establish that he or she has been subjected to an action prohibited
under the Human Rights Act because of an actual or perceived physical or mental
impairment, whether or not the impairment limits or perceives or limits a major
life activity. So for instance if you have a dishwasher and the dishwasher may, maybe they’re missing one or two fingers
and the dishwasher has not asked for an accommodation, has not mentioned anything about a disability, however the employer upon seeing that automatically assumes
that this person has a disability and decides oh well we had previously
offered you employment, but upon meeting you in person, we won’t hire you. That
could be a perceived disability of that person and to the department and made a
complaint that’s probably something that we would likely write a charge of
discrimination for. I hope that answered your question. Another question we received was with regards to rental payment are Minnesota
landlord able to charge more than first and last month’s payment upon
agreeing to new tenancy, or can landlords pretty much charge how they want it. it
seems that this is a huge barrier for renters because it can’t afford that
much money and they are eliminated from being able to rent unless they have
middle to high income, this affects low-income families do you
have any information on this? Unfortunately, I will say this is
something we do receive quite a few calls about, what I can say right now is
if the policy applies, if the landlord is applying the policy to all of, all of the
tenants or potential tenants then it’s a neutral policy, however there’s some
indication that the landlord is arbitrarily applying that policy that
may be an indication of discrimination. So for example, if someone comes in and
submits a rental application and the landlord assumes they have middle to
high income so they only require first and last month’s rent, but you have
someone else who may come in and based on their appearance, the landlord says well
I need first and last month’s rent and I need a security deposit, if that person
were to contact the department and be able to provide us some information that
they feel they are being asked to do more to obtain tendency with that
landlord, then there’s some of a different protected class, that may
be something that we write a charge of discrimination for. So I hope that
answers your question. So just to confirm Lenora, you’re saying if it’s applied
equally there really aren’t any limit to what they can charge. Okay, so it was, okay so there is one question someone asked, HUD has basically has a no
felonies policy, is that illegal? I didn’t know that was the case, but if there is a
policy it says no felony never, you know, we’re gonna go back to our, and this
hasn’t been challenged in court yet, but we’re gonna go back to our disparate
impact analysis right, did I, and, you know, question is, does a no felonies policy disproportionately impact a certain
members of a protected class? I pulled evidence that suggests arrest
records do, I’m not sure what the felony numbers are among races or projected
classes, but again, the landlord would have to prove that the practices
necessary to achieve a substantial interest. So if a landlord says, we have
families here we’re trying to keep the place safe, you know, that could be enough
to satisfy the second element, but keep in mind, the according to HUD as it
stands now, well first of all, say that Agra Creek Carson is revising this
analysis and we’re not sure how it’s going to come out, but second, under the
Obama administration, HUD said you can’t just say something like safety, you have
to actually produce evidence that will lead a fact-finder to conclude that the
policy really does forward the interest of, for example, safety. So it’s not, you
can’t just bring up safety to, in support of a no felonies policy, but
again, there’s no, you know, that hasn’t been litigated yet, and I think that’s
one of those cases that we don’t know how that would go. So how does other groups compared with regards to criminal history and housing discrimination? You know, that’s a good question, I’d uh I’d
suggest looking up the FBI Uniform Crime Report as well as, I think, the Minnesota
Department of Public Safety Uniform Crime Report because, I think that, that
does break down the numbers among races beyond just African-Americans and non
African-Americans. Another question is what is the definition of a disability
and is there inconsistencies, and yes there is inconsistencies between federal
and state law as Lenora explained. What a disability is in Minnesota, under state
law requires that a person have a condition that materially limits a major
life activity, and under federal law under the Americans with Disabilities
Act, the standard is something that substantially limits a major life
activity, so you know, and that’s been deemed as a higher hurdle to cross
than the state law. So and you know that could, that results in confusion and it
could result in mistaken, you know, a mistaken identification of a disability
if there’s fraud, you know, there that would have to be intentional, but you
know, that’s just why we need to stay in our lanes, is are we talking about
federal law, or state law because they’re different. What about landlords who request three or four times, income of three or four
times the monthly, a monthly rent and individuals receiving county and federal
benefits are discriminated based on income disability. Well okay, so I think,
we could go back to the disparate impact analysis, I think first, we say generally
as Lenora said, if it’s applied equally to everyone, that’s a neutral policy that
that we don’t at first blush say is discriminatory, but could this fit into a
disparate impact analysis if we have require a person to have three or four
times rent, a landlord requires that, can the landlord justify element to and
they say that there’s a good reason for that, you know, and for what about tenants
on section 8 requiring a three or four times income for a 10-month Section
8. Well, on the one hand, a lot of the, a lot of the rent might be coming from
section eight instead of the tenant, so why does it matter what the tenants
income is? On the other hand, the landlord might prove that Section 8 benefits
aren’t reliable or that he tends to get less rent and has to terminate leases
for people with on Section 8 more often. So there’s two sides to how that second
element could fall, but I have heard that from more than one service provider
during trainings, that you know this totally affects my client and the amount
of income my client makes is irrelevant because most of the rent is paid for by
the federal government. Good question it’s oneI cannot,I cannot answer and I
think someone just pointed out that the Walz Administration seems interest, I’m
not, I don’t know about this, but the Walz Administration, according to this
attendee seems interested in housing and, you know, it might, there may be
changes coming in legislation. Okay, thank you guys again, very much for your
attendance. Thank you all, we will go ahead, thank you all for joining MDHR for
today’s webinar. we appreciate and value the work you do every day. Thank you to
our presenters, Lenora White and Paul Ziezulewicz.
You will find more information on MDHR’s website mn.gov/mdhr. Remember to have your colleagues view these webinars and the MDHR’s website.
We will follow up with an email to registered attendees once the
video is ready to share. Thank you so much and we look forward to you joining
us again. Have a great day. Bye.

1 Comment

Alicia Tur

Mar 3, 2019, 10:50 pm Reply

Minnesota has become like the deep south in the 50's and 60's. I would probably be treated better in the Deep South. If you complain – they do NOTHING

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