Fair Housing Retaliation: Just Don't Overreact

We all know of stories that generate chuckles and head shaking over the ridiculous nature of some discrimination claims in community associations.  This is not to say that there are no genuine claims of discrimination, but there certainly appear to be far more frivolous claims of discrimination than legitimate ones.  And most of us can think of some very memorable claims.  Also, being told that you are a racist or a bigot or are otherwise acting in a way to discriminate against people is a real personal attack and an emotionally charged accusation.  It can be hard to forget such an accusation.  The potential problem for directors and managers is that reacting to such accusations in the wrong way can bring an additional claim of “retaliation”.

After making a claim of discrimination or making a request for the accommodation of a disability under the Fair Housing Act (“Act”), residents are protected from retaliation by the board and management.  The Act provides:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the Act].

In simpler terms, you cannot take adverse action against a resident because they asserted any rights under the Act. 

A resident, who may have asserted some right under the Act, may claim retaliation for getting a fine for a trash can being left out or a late fee for not paying assessments on time.  However, so long as the resident is treated in a uniform manner with other residents and owners, then a retaliation claim should not be a major concern.  If a Fair Housing retaliation complaint is filed with the government, you simply would need to produce your accounting or enforcement records showing all the other owners who received fines or late fees for the same conduct.

In addition, in order to succeed on a claim of retaliation, the resident would have to prove that they are, in fact, part of a protected class that is being singled out (based upon race, color, religion, sex, handicap, familial status or national origin); that they enjoyed or exercised a right under the Act; that the adverse action interfered with the resident’s enjoyment of his home; and that the adverse action was at least partially motivated by a discriminatory intent.  There is no requirement that a resident have actually filed a complaint with the government in order to be protected.  All that a resident must do is communicate in some way that they are enjoying or exercising some right under the statute.

There is an interesting facet to the retaliation issue that may not be obvious.  If a resident ever causes an association to incur attorneys’ fees for addressing a Fair Housing issue, under no circumstances should those attorneys’ fees be posted to an owner’s account.  We know that the Arizona Attorney General considers that to be blatant retaliation. 

Otherwise, the point to take away is that you need to be aware of the retaliation provision of the Fair Housing Act.  You do not have to give special treatment to someone after they have made a claim of some type under the Act, but you should be mindful of the potential risk of treating them differently after the claim.  As always, uniformly inspect all properties and treat all owners in the same manner, and there will be little reason for concern.  Do not let fear of a retaliation claim keep you from enforcing your documents. 

If you have any questions about this or other Fair Housing issues, please contact Jason Smith in our office for more information.