ASK THE LAWYER
MARK TSCHETTER | TSCHETTER HAMRICK SULZER, P.C.
You Need to be Prepared for Drive-by Testers
F
air Housing testing has increased over
the past year. Calls made from fair
housing call centers or boiler rooms
have significantly increased in
Colorado. Unfortunately, based on fair housing
discrimination complaints filed, many
communities have been taken by surprise or have
not been adequately trained to handle fair
housing testing.
What is fair housing testing?
The Fair Housing Enforcement Project, run
by Alaska Legal Services, gives an excellent and
concise definition of testing. "Testing is an inves-
tigative tool used by fair housing organizations
and government agencies to uncover illegal hous-
ing discrimination. Testing is a simulated housing
transaction designed to obtain evidence of any
differential treatment based on protected classes.”
Telephone fair housing testing is currently focus-
ing on disability related issues.
What is the potential liability for failing
a fair housing telephone test?
A failed test can significantly cost a landlord.
Testing is generally conducted by fair housing
advocacy groups. These groups always seek sig-
nificant damages for alleged fair housing dis-
crimination based on testing. In addition to any
dollar amount demanded by the tenant or prospect
(the person who may have been damaged by dis-
criminatory conduct), a fair housing advocacy
group can typically demand from $10,000 to
$50,000 or more for alleged fair housing violations.
Further, fair housing advocacy groups are less
likely to settle because from their perspective they
have the goods on you. A main point of testing
is to gather evidence t o be used in a housing
discrimination proceeding.
What are common fair housing testing
telephone tactics?
A telephone tester might call and say, "I'm
disabled, and if I rent at your community can I
www.aamdhq.org
get a close up reserved parking space?" OR "I'm
disabled, if I rent at your community can I have
an ESA (Emotional Support Animal)?”
How should the onsite teams answer
these questions?
The answers are simple. The answer to both
questions is "Yes". However, this answer is rarely
given for a variety of reasons. The team member
may not be adequately trained or be familiar with
how to handle
reasonable ac-
commodation
requests. The
landlord may not
have an adequate
SOP for han-
dling reasonable
accommodation
requests (every
landlord needs to
have an SOP for
reasonable ac-
commodation requests). The team member might
be adequately trained and there is a solid SOP in
place, but by default, the team member mistak-
enly attempts to apply the SOP to a situation that
it was not designed to address, and gets caught
up in the legal requirements.
What happens if the caller shows up to apply, and
isn't disabled or doesn't have a disability related
need for the request? You deal with it at that time.
When you say yes, the conversation is over.
When you say something else, the conversation
has the potential to go terribly wrong. Did I men-
tion that these testing calls might be recorded?
Rather than risking a bad conversation (a conver-
sation that creates liability or that results in the
landlord being targeted for further testing), the
landlord would be better served by simply taking
"Testing is an investigative tool used
by fair housing organizations and
government agencies to uncover
illegal housing discrimination."
Why should we answer “YES” when we
don’t know if the caller meets the legal
requirements?
Assuming the team member knows the legal
requirements (disability, need, and reasonableness),
trying to apply them to a one-off telephone call
coming in from left field is problematic at best.
I know what you’re thinking because we hear it
all the time. When a prospect calls and makes one
of these requests, how do you know that the per-
son is disabled? The caller said they were disabled.
How do you know that the caller has a disability
related need for the request? You don't, but in
good faith you assume they wouldn't make the
request unless they had a disability related need.
the caller's word that the caller meets the legal
requirements, and saying yes.
If you say yes, one of two things will happen
next. One, the caller is a tester, and you will nev-
er hear from them again. This is what will happen
in most cases. The tester has moved on looking
for the community that says no, or gives some
other perceived inadequate answer. Two, the
caller is a genuine prospect and shows up to apply.
If the caller is a genuine prospect, the request can
be revisited when the caller shows up to apply.
Specifically, if the caller that shows up doesn’t
obviously appear to be disabled or doesn’t obvi-
ously need the requested accommodation, you can
ask for documentation at that point. If the ap-
plicant insists that they are entitled to the request
based on the previous "Yes", the response is
simple. We take callers at their word and assumed
that you met the legal requirements, but since
your disability and need for the request are not
obvious, we are entitled to documentation that
you meet the legal requirements.
APRIL 2017 • TRENDS | 35