HUD’s Office of Fair Housing and Equal Opportunity (FHEO) released “Guidance on Compliance with Title VI of the Civil Rights Act in Marketing and Application Processing at Subsidized Multifamily Properties.” The guidance explains how Title VI of the “Civil Rights Act of 1964” applies to the marketing, application, and waitlist processes of HUD-assisted multifamily properties, which include Section 8 Project-Based Rental Assistance (PBRA), Section 202 Supportive Housing for the Elderly, and Section 811 Supportive Housing for Persons with Disabilities. The eight-page document clarifies how certain marketing, rental application processing, and waitlist management practices can perpetuate segregation or otherwise discriminate in violation of Title VI. It also provides suggestions for implementing more inclusive practices that are less likely to produce discriminatory results. Meanwhile, HUD’s Office of Multifamily Housing Programs (Multifamily), which administers the PBRA, 202, and 811 programs, issued “Implementation Sheet for HUD’s Title VI Guidance,” a four-page document providing a shorter outline of FHEO’s document.
Title VI prohibits intentional discrimination on the basis of race, color, or national origin. Title VI regulations also prohibit discriminatory effects, which occur when a facially neutral policy or practice disproportionately affects members of a group identified by race, color, or national origin; when an entity’s policy or practice lacks a substantial, legitimate justification; and when one or more alternatives exist that would serve the same legitimate objectives but with less disproportionate effect on the basis of race, color, or national origin. Note that Title VIII of the “Civil Rights Act of 1969” (the “Fair Housing Act”) added to race, color, and national origin the categories of sex, disability, family status, and religion (known as the “protected classes”). The FHEO and Multifamily materials, however, focus solely on Title VI.
Marketing
When groups protected by Title VI are underrepresented at a property, compared to their representation in the market area, housing providers should evaluate whether their marketing efforts contribute to that result and should consider alternatives. Certain marketing practices can perpetuate segregation or otherwise discriminate. These practices include relying solely on word-of-mouth, posting “For Rent” signs on a property, or relying on referrals from a single community organization or small number of community organizations that serve limited populations.
Title VI compliance can be assured by, for example, distributing flyers and blank applications to local organizations with ties to different populations throughout a property’s market area, such as social service providers, legal aid offices, health clinics, and grocery stores. Properties with many units can create websites advertising available units, eligibility requirements, and application processes. Such an approach would more effectively market the properties to those who have difficulty calling or visiting during business hours. Advertising through neighborhood newspapers and radio stations oriented to various racial and ethnic groups (including in non-English language media) can also help reach a broader audience.
Application Process
Some application practices can risk perpetuating segregation or otherwise discriminate, such as requiring applications to be picked up and/or submitted in person during business hours. Such practices impose burdens on people who cannot travel due to inflexible work schedules, child or elder caretaking responsibilities, or limited transportation options.
Title VI compliance can be assured by offering fillable-form applications on property websites or enabling blank applications to be printed from websites, and allowing applications distributed to various community locations to be obtained, completed, and then returned at a person’s convenience via mail, email, web-based formats, drop boxes, and other methods.
Applicant Screening
On April 4, 2016, HUD issued guidance regarding criminal records screening, noting that housing providers should not rely on arrest records. Providers should consider the nature, severity, and recency of criminal records, as well as any extenuating circumstances. A property’s criminal-records screening policy should be available to prospective tenants and should specify the types of records that will be considered (such as convictions only) and explain that evidence of mitigating circumstances will be considered.
When evaluating a household’s rental history, providers should consider the accuracy, nature, relevance, and recency of negative information. For example, records from an eviction in which the household prevailed or that was settled without either party admitting fault do not necessarily demonstrate poor tenant history. Extenuating circumstances should be considered as well, such as an unexpected medical emergency.
Waitlist Management
The marketing discussed above should take place at least 60 days before a waitlist is opened. Applicants should be put on a waitlist based on a lottery system, rather than on a first-come basis. Households with housing insecurity or who are homeless may have difficulty if a stable mailing address is required; properties should also communicate with applicants by phone or email. Also, when updating or purging waitlists, properties should attempt to reach out to applicants using phone or email if mail is returned as undeliverable.
Read FHEO’s “Guidance on Compliance with Title VI of the Civil Rights Act in Marketing and Application Processing at Subsidized Multifamily Properties” at: https://bit.ly/3s0r460
Read Multifamily’s “Implementation Sheet for HUD’s Title VI Guidance” at: https://bit.ly/3vRm6tu
Read “Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions” at: https://bit.ly/3vX3yZ3
Read more about discriminatory effects on NLIHC’s Racial Equity and Fair Housing webpage, under Disparate Impact.
Read more information about Section 8 Project-Based Rental Assistance on page 4-67 of NLIHC’s 2022 Advocates’ Guide.
Read more information about Section 202 Supportive Housing for the Elderly on page 4-73 of NLIHC’s 2022 Advocates’ Guide.
Read more information about Section 811 Supportive Housing for Persons with Disabilities on page 4-78 of NLIHC’s 2022 Advocates’ Guide.