HUD Guidance on Limited English Proficiency and the Fair Housing Act

On September 15, HUD released a Press Release noting that the Office of General Council issued new guidance on the application of the Fair Housing Act to a housing provider’s consideration of a person’s limited ability to read, write, speak or understand English. The guidance “specifically addresses how the disparate treatment and discriminatory effects methods of proof apply in Fair Housing Act cases in which a housing provider bases an adverse housing action – such as a refusal to rent or renew a lease – on an individual’s limited ability to read, write, speak or understand English.”

The guidance notes that:

• Using a person’s LEP to intentionally discriminating against someone because of race, national origin, or another protected characteristic is considered in violation of the Fair Housing Act.
• Intentional discrimination may involve imposing restrictions, targeting individuals for unfair or illegal housing-related services, or failing to comply with the requirement to provide housing-related language assistance services to LEP persons.
• Housing providers may also be in violation of the Fair Housing Act if the provider’s policy has an unjustified discriminatory effect, even when the provider had no intent to discriminate.
• Three steps are used to analyze claims that a housing provider’s use of LEP results in an unjustified discriminatory effect: assessing the discriminatory effect; evaluating whether the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest; and evaluating whether there is a less discriminatory alternative.