A Case Regarding National Origin and Racial Discrimination
CNY Fair Housing filed a complaint against Defendant Swiss Village alleging disparate impact and intentional discrimination on the basis of national origin and race, in violation of the FHA, based on the Defendant’s policy of only renting out apartments if a prospective occupant spoke and read English. Defendant filed a motion to dismiss, arguing that CNY Fair Housing had failed to state a claim and that HUD Guidance regarding renting to persons who are Limited English Proficient (LEP) was not due to any deference. See https://www.hud.gov/sites/documents/LEPMEMO091516.PDF The United States filed a statement of interest arguing that Plaintiff had plausibly alleged disparate impact and intentional discrimination claims and that the HUD LEP Guidance was due deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944).
The Court denied the Defendant’s motion in its entirety. The Court first found that, contrary to the Defendant’s position, the HUD LEP Guidance did not assert that LEP status alone is a protected class under the FHA, but rather that language criteria may be evidence of discrimination, the same as any other potentially discriminatory criteria. The Court held that the HUD LEP Guidance was “persuasive and entitled to deference” because it was consistent with case law regarding the use of language as a proxy for race and national original, was consistent with other HUD Guidance, and that the Fourth Circuit had given it deference in a recent case, Reyes v. Waples Mobile Home Park LP, 903 F.3d 415, 432 & n.10 (4th Cir. 2018). The Court also found that the Complaint alleged sufficient facts to state a disparate impact claim (it repeated statistical Census data allegations regarding national origin and race made in the Complaint). The Court found that the Complaint stated a claim for intentional discrimination in that “[d]iscriminatory intent may be inferred from the totality of the circumstances, and this Court discerns no reason why” that “would not include evidence of a language policy being used as a proxy for discrimination on the basis of national origin or race.” Finally, the Court held that a “Plaintiff does not need to identify the specific national origin or race of particular tenants in order to state a prima facie case of discrimination under the FHA” and that “neither disparate impact nor discriminatory statement claims require a showing that Defendants were aware of the national origin or race of the prospective tenants.”
Case Open Date: Friday, April 1, 2022
Case Name: CNY Fair Housing v. Swiss Village LLC, et al. (N.D.N.Y.)
Tags: Jill Butler; LEP; limited English proficient; Fair Housing Act; FHA; Asian; Hispanic; Black; Census; DOJ; HUD; national origin; race; Spanish
Industry Code: None
Component: Civil Rights Division
Civil Rights – Housing and Civil Enforcement Section
Statement of Interest – CNY Fair Housing v. Swiss Village, LLC (N.D. N.Y.)
Memorandum-Decision and Order – CNY Fair Housing v. Swiss Village LLC, et al. (N.D.N.Y.)
It is accurate that limited English proficiency (LEP) status is not a specific protected class under the federal Fair Housing Act or the New York fair housing law. However, as this case demonstrates, tenancy-related decisions based on language or refusal to attempt to communicate with LEP individuals can be interpreted as national origin discrimination, and therefore a violation of the FHA. This case went a step further by including a claim of disparate impact discrimination on the basis of race and national origin.
Title VI places certain obligations on recipients of federal funds to take reasonable steps to ensure that LEP persons have meaningful access to federal programs and activities. Most federally subsidized housing providers are aware of their obligations under Title VI to provide oral and/or written translation to LEP individuals and to have a Language Assistance Plan. Although these specific obligations may not apply to conventional, private-market housing, the FHA’s prohibition against national origin discrimination still creates a burden on these providers to attempt to effectively communicate with LEP prospects and tenants, and certainly to provide housing to qualified LEP individuals. This is because, as the court noted in this case, language has been considered to be a proxy for race and national origin.
Therefore, it is important for all housing providers to be aware, regardless of funding, that policies or practices that limit LEP individuals from applying or being approved for housing, or that prevent an LEP tenant from obtaining necessary tenancy-related information, will likely be considered to be a violation of the FHA. If you are unsure if your policies meet the criteria, seeking the advice of a fair housing attorney is always a best practice.