What is language related discrimination?
The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, color, sex, religion, disability, and familial status.
Certain policies or practices of a landlord could be regarded as fair housing discrimination against protected classes when a person with limited English proficiency applies for tenancy. A landlord’s policy or practice that contains language-related housing restrictions or that result in a language-based adverse action decision is a violation of the Fair Housing Act.
The Department of Housing and Urban Development (HUD) has published a Limited English Proficiency (LEP) guidance for landlords as an aid in renting to persons who as a result of national origin do not speak English as their primary language and who have a limited ability to speak, read, write, or understand English. The guidance addresses how the Fair Housing Act would apply to claims of housing discrimination brought by people with limited English proficiency.
People with limited English proficiency are not a protected class under the Fair Housing Act. However, national origin, which is a protected class, has been closely linked to the ability to communicate proficiently in English. The guidance points to statistical data supporting the nexus between limited English proficiency and national origin.
According to the guidance, nearly all LEP persons are limited in English proficiency because they or their family members are from non-English speaking countries. Housing decisions based on limited English proficiency are generally related to national origin or race.
National origin discrimination includes discrimination because an individual has the physical, cultural, or linguistic characteristics of individuals from a foreign geographical area. Courts have found a close link between language requirements and national origin discrimination.
The guidance addresses how various legal approaches, such as discriminatory effects and disparate treatment, apply in Fair Housing Act cases in which a housing-related decision – as an example, a landlord’s refusal to rent or renew a lease – involves a person’s limited ability to speak, read, write, or understand English.
Landlords are prohibited from using an applicant’s or a tenant’s limited English proficiency in a selective manner as basis for discriminatory actions or as an excuse or pretext for intentional housing discrimination. The law also prohibits landlords from using limited English proficiency in a way that causes an unjustified discriminatory effect.
Landlords may be liable for claims of intentional discrimination if their rental practices include advertising that contains blanket statements of language-related restrictions, such as “all tenants must speak English” or turning away all applicants who are not fluent in English.
Landlords should consider less discriminatory alternative practices for matters involving people with LEP, such as allowing an applicant or tenant a reasonable amount of time to have a document, such as a lease agreement, translated; providing written or oral translation services, using multi-lingual skills of staff members; or having an applicant or tenant bring another person or family member along to interpret documents or facilitate communications.
HUD has authority to charge landlords with violations of language-based discrimination or on behalf of the complainant refer the case to the Department of Justice. Landlords who violate the Fair Housing Act could be required to pay damages, civil penalties, and punitive damages to the complainant.