Good maintenance service is essential to attracting and retaining residents. The physical state and appearance of your property will help make a positive first impression on prospects and other visitors, boosting your brand and driving traffic to the site. And maintenance operations can have a direct effect on renewals: Good service can reinforce the decision to renew leases, while poor service can drive residents away.

Fair housing may not be the first thing that comes to mind in managing maintenance operations the way it does with leasing. But maintenance operations are a frequent source of fair housing complaints. Communities may face allegations of discriminatory maintenance policies or procedures—for example, that requests from white residents are routinely pushed ahead of those from minority residents. Or complaints may stem from accusations of sexual harassment or discrimination by a single member of your maintenance staff. 

Maintenance operations are also involved in requests for reasonable accommodations or modifications by individuals with disabilities—for example, requests to alter the interior of a unit or common area to make it accessible for a resident in a wheelchair or to refrain from using pesticides from a resident with disabling chemical sensitivities.

Bottom Line: Focusing your fair housing training efforts exclusively on the leasing process without including maintenance can leave a big hole in your compliance efforts. This month’s lesson is designed to fix that problem. First, we’ll explore the many ways in which fair housing claims can arise from maintenance operations. Then we’ll offer seven strategies to help ward off problems in your community. At the end of the lesson, you can take the COACH’s Quiz to see how much you’ve learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits housing discrimination based on race, color, national origin, religion, sex, disability, or familial status. Among other things, the FHA outlaws discrimination against anyone in the provision of services or facilities in connection with the rental of a dwelling because of a protected characteristic. According to HUD regulations, it’s unlawful to fail to provide or to delay maintenance or repairs of apartments because of race, color, religion, sex, familial status, national origin, or disability. Consequently, landlords and property managers may be directly liable for adopting policies or practices that discriminate in the level of maintenance services provided to residents based on a protected characteristic.

In addition to claims based on intentional discrimination, you could face claims for unintentional, or “disparate impact” discrimination for actions (or inactions) that are neutral and nondiscriminatory on their face but have a discriminatory effect on a protected class.

Example: A maintenance policy or practice that assigns higher priority to particular buildings or areas might have the effect of racial discrimination if the residents in the high-priority zones are predominately white and the residents in the low-priority zones are predominately Black.  

Liability for fair housing violations may stem from misconduct by individual employees and, in some cases, outside contractors or vendors. In general, owners are legally responsible for the actions of employees and agents who are authorized to act on their behalf and acting within the scope of their duties. For example, a discrimination claim may be based on discrimination or harassment of a resident by a maintenance worker with personal prejudices against Jews and Muslims. Even if they don’t actually engage in it, owners who are aware of such misconduct but do nothing to stop it face the risk of liability under fair housing law.

The same holds true where the third-party agent who engages in discrimination is one of your outside contractors rather an employee. The owner’s liability depends on its level of control over the contractor. 

7 RULES FOR KEEPING MAINTENANCE STAFF

FROM TRIGGERING FAIR HOUSING CLAIMS

Rule #1: Provide Maintenance Employees with Basic Fair Housing Training

Not just leasing consultants but all employees who directly interact with prospects and residents—including maintenance workers, housekeeping employees, landscaping crews, pool attendants, fitness center staff, and the like—need training in the basics of fair housing law. 

Compliance Strategy: Ensure fair housing training for maintenance staff covers:

The applicable protected characteristics—race, color, national origin, religion, sex, disability, and familial status—as well as any characteristics protected under applicable state or local laws. 

Prohibited practices, such as treating residents differently based on a protected characteristic and the ban on discriminatory statements.

How to respond to inappropriate questions. Train maintenance and service workers on how to respond to comments or questions that touch on fair housing matters by anyone they encounter in the course of their duties. In general, they should understand why they shouldn’t answer any questions by prospects or visitors about the racial makeup or other protected characteristics of the people living in the community. Such inquiries could be part of a fair housing test to ferret out unlawful discrimination.

Not offering personal opinions about residents. Employees shouldn’t offer personal opinions or indicate agreement with a resident who complains about neighbors, such as displeasure with cooking odors or noisy children. Train employees to keep personal feelings to themselves and to refer the resident to contact the management with any such questions, comments, or complaints. In addition, instruct employees to report such incidents themselves, so the community can document what transpired—and how the employee handled the situation—to ward off later accusations that the employee acted inappropriately.

Reporting suspicious activity. Train employees to report any suspicious activity or anything else out of the ordinary to the office. Maintenance workers, housekeeping staff, and other employees are in a unique position to act as the eyes and ears of the management staff to alert them to potential problems, such as disputes among neighbors, complaints about domestic violence, or suspected criminal activity on the premises. Such reports could give you an early warning sign on the potential problem brewing among neighbors, allowing you to head off any potential fair housing problems.

Cultural awareness. This should be part of fair housing training, so that maintenance and other workers who enter occupied units will respect residents’ ethnic or religious customs. In many cultures, for example, it’s customary or required to remove footwear upon entering the home. Although safety laws or regulations may prevent workers from removing their footwear when entering these units, some communities provide maintenance workers with foot coverings—such as those used by painters—to wear while providing services inside the unit out of respect for a resident’s cultural or religious mores.

Written code of conduct. Consider adopting a written code of conduct that requires all staff members to treat anyone visiting or living at the community with courtesy and respect without regard to race, color, national origin, or any other protected characteristic under federal, state, or local law. Documentation that all staff members are required to abide by the policy—and are subject to disciplinary action for failure to do so—can help buttress your fair housing compliance efforts.

COACH’s Tip: For more training guidance, see 10 Dos & Don’ts for Effective Employee Fair Housing Training.

Rule #2: Adopt Uniform Policies for Handling Maintenance & Repair Requests

In general, it’s a good idea to handle maintenance and repair requests on a first-come, first-served basis, unless the request involves an emergency. 

Compliance Strategy: Create and consistently implement a written policy that defines what constitutes an emergency with specific examples of the types of problems that would justify an immediate response. Examples include complaints about smoke, overflowing toilets, and electrical problems. The policy should also outline the types of problems that wouldn’t be considered emergencies, such as a jammed garbage disposal or stuck closet door. While it may be difficult to foresee all types of problems that may arise, the more detailed the list, the better.

The policy should also detail the process for handling maintenance requests. For example, the staff member taking maintenance calls or emails should document the time and date of the request, details about the problem, and the name and contact information for the resident making the request. These basic procedures ensure that maintenance services are provided consistently based on reasonable, objective criteria, as opposed to discriminatory factors such as the race or other protected characteristic of the resident making the request.

In addition, make sure that anyone handling your phones after hours, such as an answering service, follows the same policies for handling maintenance and repair requests. For example, the answering service should know how to document the time and nature of the request and to determine whether it fits within your community’s defined list of emergencies.

COACH’s Tip: A log showing the date, time, and way that maintenance and repair requests are handled can alert managers to the early warning signs of a potential fair housing problem. A review of the records may reveal that a previously undetected problem, such as the pattern of a particular maintenance worker of bumping the maintenance requests of white residents ahead of those of Black residents in violation of your policy to treat all maintenance requests consistently without regard to the resident’s race, sex, etc. Periodic review of the records may enable the manager to head off a formal fair housing complaint by addressing the problem immediately with the employee via the community’s disciplinary policy.

Rule #3: Take Requests for Reasonable Accommodations Seriously

Emergencies aren’t the only times that justify making an exception to the first-come, first-served policy for handling maintenance and repair requests. In some cases, a maintenance or repair request may require immediate attention if it qualifies as a request for a reasonable accommodation for an individual with a disability.

Explanation: Fair housing law requires housing providers to make exceptions to rules, policies, practices, or services as a reasonable accommodation when necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. Such reasonable accommodations may include making an exception to your standard first-come, first-served maintenance request response policy to prioritize requests from residents with disabilities.

Moreover, federal enforcement officials stress that communities must respond promptly to reasonable accommodation requests. Failure to respond within a reasonable period is considered a denial of the request, setting the stage for a formal complaint or lawsuit.

Example: A New York federal court refused to dismiss a disability discrimination complaint of a resident with Parkinson’s disease against an owner for not accommodating his mobility impairments by repairing defects in the floor and front steps that caused him to fall, a number of times. He also claimed that the owner’s failure to clean the mold in the unit aggravated his breathing problems. The court ruled that the resident had a valid claim for failure to make reasonable accommodations and allowed the case to go to trial [Riccardo v. Cassidy, February 2012].

Compliance Strategy: If a maintenance or repair request is made by a resident with a disability, or sounds as if it’s being made to accommodate a resident’s disability, immediately consider the need to prioritize it. 

Note, however, that you need grant only requested accommodations that are reasonable. According to HUD, a request for an accommodation is reasonable if it:

• Doesn’t cause landlords to incur an undue financial and administrative burden;
• Doesn’t cause a basic or fundamental change in the nature of the housing program available;
• Won’t cause harm or damage to others; and
• Is technologically possible.

COACH’s Tip: If you decide that a requested accommodation isn’t reasonable, it’s a good idea to consult your attorney for advice before notifying the requestor of your decision to deny it.

Rule #4: Take Requests for Reasonable Modifications Seriously

In general, a request for a reasonable accommodation is a change to a rule, process, or procedure, while a request to alter the physical characteristics of a unit or common areas is considered a request for a reasonable modification. Though fair housing law imposes obligations on communities with respect to both types of requests, there’s a big difference in who must pay the costs associated with the request. The law generally requires the community to pay the costs associated with reasonable accommodation requests, while residents in conventional housing communities generally are responsible to pay for reasonable modifications. If you aren’t sure how to handle a particular request, it’s a good idea to get legal advice in an effort to resolve the issue before it escalates into a costly lawsuit.

Example: A New York owner won a partial victory when a court dismissed some fair housing claims filed by the mother of a disabled child who alleged that the community failed to provide reasonable modifications by failing to widen hallways, install a ramp, and fix defects in the lighting and surface of the driveway that made it difficult to navigate her daughter’s wheelchair.

The court dismissed claims involving the ramp and other major renovations, ruling that the community wasn’t obligated to undertake wholly new construction or modify existing facilities by replacing steps with ramps or widen doorways, because those requests didn’t qualify as reasonable accommodations.

However, the court refused to dismiss claims related to the upkeep of the driveway, ruling that failure to fix potholes in the driveway was plainly a service that could be considered a reasonable accommodation, and if so, the community could be required to incur reasonable costs to accommodate the daughter’s handicap, provided that the accommodations didn’t pose an undue hardship or financial burden [Reyes v. Fairfield Properties, September 2009].

Rule #5: Take Steps to Prevent Sexual & Other Discriminatory Harassment

As we explained earlier, an owner can be liable for discrimination and harassment of maintenance employees based on sex, race, religion, and other protected grounds. The first step is to develop a community-wide policy banning such behavior. Make it clear that the policy applies to all employees, whatever their position, as well as to outside contractors or vendors. The policy should spell out that violations are grounds for disciplinary actions against employees.

Compliance Strategy: To reduce the risk of improper conduct—or false accusations of improper conduct—by your maintenance staff or outside contractors, maintain and follow written policies and procedures regarding when maintenance and repair work is performed—particularly inside occupied units. Among other things, guidelines for maintenance workers could include:

• Have proper identification, such as a work shirt or badge, while on the job;
• Enter units only for scheduled repairs or maintenance or in case of emergency;
• Give reasonable notice before repair or maintenance visits;
• If the resident is home, don’t enter the unit unless the resident lets you in;
• Except in case of emergency, do not enter a unit if any child under the age of 18 is home without the presence of a parent or other adult;
• Treat all residents the same;
• Don’t fraternize with residents;
• Respect residents’ privacy; and
• Don’t allow yourself to be in a compromising position.

COACH’s Tip: In your policy, consider explaining that your ban covers the two main types of sexual harassment:

• Quid pro quo sexual harassment—in which an employee or contractor conditions access to housing or related services on a victim’s submission to sexual conduct; and
• Hostile environment sexual harassment—in which a resident is subjected to sexual behavior of such severity and pervasiveness that it results in an environment that’s intimidating, hostile, or offensive.

Rule #6: Carefully Select and Monitor Outside Contractors

Since owners and managers may be held responsible for fair housing violations committed by vendors or contractors, it’s important to exercise due diligence in selecting outside contractors to perform services at your community.

Compliance Strategy: Check the company’s references and reputation—not only for quality workmanship, but also for its workers’ professionalism on the job. Ask about how the company screens employees—for example, whether it performs drug testing or criminal background checks, if permitted. Determine whether the company provides basic fair housing training to employees and how it supervises employees working on job sites.

Once you’ve selected a contractor, give him a copy of your community’s fair housing policy—particularly your policy banning sexual harassment—and make sure that a staff member explains the policy before the contractor starts working at your community. Take steps to monitor the contractor’s activities while working on your premises—particularly while performing services inside occupied units.

Legal experts advise owners to require contractors to sign two legal documents before hiring them to perform services at the community:

• An acknowledgement that the contractor understands your community’s fair housing policies and the consequences of its failure to abide by those policies; and
• An indemnification agreement that requires the contractor to repay you for any legal expenses or damages you must pay because of its violation of fair housing laws.

COACH’s Tip: For more guidance on dealing with contractors, see Avoiding Liability Risks for Fair Housing Violations Committed by Contractors.

Rule #7: Keep Good Maintenance Records 

Good recordkeeping is essential to help prevent—and defend against—any fair housing complaints with respect to how your community handles maintenance and repair requests. Documentation is also key to protecting yourself from retaliation claims if disputes arise over disability-related maintenance requests. If a community decides not to renew the resident’s lease, for example, it’s essential to adequately document the legitimate, nondiscriminatory reasons for the decision to dispel any notion that it’s connected to any protected activity under fair housing law.

Compliance Strategy: Take four steps: 

Maintain written policies and procedures for handling maintenance requests, including whom to call, what happens outside nonbusiness hours, what to do in case of emergency, what kinds of problems qualify as emergencies, and the like. Give a copy of the policies and explain them to all new residents, and review them again at renewal.

Keep records about each request for maintenance and service—including time and date; full contact information for the person making the request; who is assigned to do the work and when; when and how it was completed; the reasons for any delays, such as the need to order a replacement part; and any other relevant information.

Fully document any complaints about maintenance services and what the community did to resolve the problem. This is particularly important if there’s any suggestion that a complaint about maintenance services seems related to a fair housing matter. Examples include a resident who complains that she received inadequate service because of her race or complains about inappropriate sexual comments or conduct by members of your maintenance crew.

Keep records about any requests for reasonable modifications and maintenance-related requests for reasonable accommodations. Fully document your efforts to resolve any questions about request, such as whether the resident (or person associated with him) qualifies as an individual with a disability under the FHA and whether there’s a disability-related need for the requested accommodation or modification.

COACH’s Tip: For more tips on recordkeeping, see 11 Recordkeeping Best Practices for Minimizing Fair Housing Liability.