The Fair Housing Act and Roommate Matching

by Katie Sloan

Tracy Shank interviews Kim Cory and Nadeen Green about FHA best practices.

Tracy ShankGaze deeply into the magic mirror on your leasing office wall and ask… “Who’s the fairest of them all?” The answer you get may be unclear and obscure, so read the interview below to really be sure…

If you work in student housing, you have no doubt heard of the Fair Housing Act. But as obvious as it sounds – treat residents fairly in the housing you provide – the intricacies of the law can be difficult to understand.

Let’s focus on what you should be aware of regarding Fair Housing during this and all future roommate-matching seasons. I interviewed Nadeen Green, For Rent Media Solutions’ Senior Counsel, and Kim Cory, Director of Student Media with For Rent Media Solutions and to ask about best practices related to the legislation. The information contained in this article is not to be considered legal advice, and I, my interviewees and FRMS strongly suggest that you consult with your own counsel as to any fair housing questions or problems you may have.

Three Things Every Property Should Know
1. It is wise from a risk management standpoint for a landlord to delegate roommate matching to a third-party provider, not unlike the way many landlords delegate criminal background status checks and credit checks to third-party providers.
2. In the event that a landlord does choose to do roommate matching, prospects should be advised that matching will only be based on criteria unrelated to protected classes: race, color, religion, gender, national origin, familial status and disability. The only exception here is gender, which has always been allowed in order to designate a unit all female or all male if it contains shared bathrooms or kitchens.
3. In the event that a landlord does choose to do roommate matching, prospects should be advised that the landlord will not intervene (or excuse from leases, or relocate someone) in disputes based on protected class status.

Here’s the interview for more background on fair housing and your property.

The Law
Briefly, how does the Fair Housing Act apply to roommate matching?
Essentially the FHA prohibits discrimination in the availability, terms and conditions in any real estate transaction because of protected classes. Any person or company engaging in or controlling such transactions is subject to this civil rights law. FHA applies to student housing when the landlord or representative of the property is controlling the roommate matching or participating in the decision-making process.

What are your thoughts or important takeaways from the court rulings? (this was a case decided in 2008 that questioned whether a roommate-matching service’s information-gathering techniques violated the FHA.)
Ultimately was found not to be liable for providing roommate selection guidance even when the selections were limited based on protected class status. It was determined that the First Amendment protects a roommate’s right of intimate association. “Holding that the FHA applies inside a home or apartment would allow the government to restrict our ability to choose roommates compatible with our lifestyles. This would be a serious invasion of privacy, autonomy, and security.” [Fair Housing Council of San Fernando Valley v., LLC., California, Feb. 2, 2012].

Since the FHA doesn’t apply to shared living spaces, it’s within the law for individuals to discriminate in selecting a roommate. While it is not unlawful for individuals to discriminate in selecting a roommate, and the roommate matching service did not violate fair housing law by facilitating discriminatory roommate searches of individuals, this case does not state that a landlord is allowed to participate in discriminatory decisions regarding roommates.

Ultimately, it is the landlord who controls who gets to live in the apartments (unlike, of course, roommate matching services which do not actually make the housing decisions). The landlord’s participation in roommate discrimination thus remains potentially uncharted territory. And uncharted territory is not necessarily, from a risk management standpoint, where a landlord should venture.

If a landlord does take charge of roommate matching, what types of questions should not be asked in a resident lifestyle questionnaire?
When the landlord participates in the roommate matching decisions, he or should avoid questions related directly or indirectly to a person’s protected class status that could be problematic. This means, for example, that neither of the following rephrases of a question on religion should be included: “What is your religion?” vs. “Do you consider yourself religious?”

Common Conflicts and Liabilities
When would a property be guilty of “steering” roommate matches in violation of Fair Housing?
Steering is when the community allows protected class status to enter into the decision-making. Reasoning such as, “let’s not match this Muslim student up with Suzy Q; Suzy Q would be very uncomfortable” is unwise; “Let’s put Hispanic roommates together” would be equally risky.

What is the worst-case scenario if a student claims dissatisfaction in a roommate match made by a property in accordance with Fair Housing?
If a landlord rejects a roommate or roommate match because of conflict not related to who the roommate is, that should not be a problem. So if the studious roommate cannot study because the party animal roommate keeps him or her up all night, those conflicts can be resolved through a re-match. But the landlord should be sure that the reasons for the mismatch are legitimate and that the “offender” has been offered an opportunity to resolve the conflict.

If a landlord rejects a roommate or roommate match because of race, color, religion, national origin, etc. of the roommate, or the landlord allows someone to make that rejection, it could give rise to a fair housing complaint against the community from the rejected roommate. Most folks in multifamily housing are very aware of how costly (and disruptive) fair housing cases can be. From a risk management standpoint, if someone asks a landlord to put fair housing discriminatory limitations on potential roommates, or rejects a selected roommate because of the roommate’s standing in one or more of the protected classes, this could be risky behavior as well.

How easy is it for a resident to implicate a property in housing bias? How common is this?
Fair housing complaints are very easy to initiate – this can be done in person, on the phone, through websites and e-mails (and now there’s even an app for that!). Fair housing complaints are many and often, but cases involving roommate discrimination are not prevalent at this time. However, this could easily change since student housing (where most roommate matching occurs) is the growing business model being embraced by many multifamily housing providers.

Best Practices
Why is self-selection a best practice for roommate matching?
People have the right to live among and with whom they wish. If folks come to an agreement that they want to live together and approach a community together, that is fine. Potential liability for a community occurs when that community participates directly in roommate matching/decision-making process.

Does the ruling mean that both properties AND matching services can ask the types of questions discussed (eg: sexual orientation, religious designation)? In your opinion, should they?
Roommate matching services can legally allow roommates to select each other by a variety of criteria, but as mentioned above, this may not apply to landlords themselves. Without that legal issue being clear, landlords would be well advised to avoid asking questions that are not fair housing compliant and to avoid making decisions based on the protected class status of any student.

For a list of effective roommate matching questions you may want to include in your property’s lifestyle questionnaire, click here.



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