Do not try to use limited English proficiency (LEP) as a possible means to treat individuals differently on the basis of their race, national origin or another other protected characteristics, the Department of Housing and Urban Development (HUD) warned in a guidance document.
Such policies and practices can lead to violations of the Fair Housing Act (FHA), which prohibits discrimination in the sale, rental or financing of dwellings, and in other housing-related transactions, because of race, color, religion, sex, disability, familial status or national origin.
Although individuals who are LEP are not a protected class under FHA, there are ways in which the disparate treatment and disparate impact can be applied in FHA cases where an adverse housing action – such as a refusal to rent or renew a lease – was taken because of the individual’s limited ability to read, write, speak or understand English.
“Because of the close nexus between LEP and national origin, the distinctions between intent and effects [impact] claims involving LEP and national origin are often subtle and can be difficult to discern,” HUD General Council Helen R. Kanovsky wrote.
National origin discrimination includes discrimination because an individual has the physical, cultural or linguistic characteristics of persons from a foreign geographic area. National statistics also demonstrate a connection between citizenship and LEP. For the U.S. population 18 years and older, 63 percent of non-citizens are LEP, compared with 39 percent of naturalized citizens and 1 percent of native-born citizens.
“As with language discrimination, discrimination against non-citizens or against those with a particular immigration status is not national origin discrimination, per se, because one’s citizenship and immigration status are related but distinct from one’s birthplace or ancestry,” Kanovsky added. “A requirement involving citizenship or immigration status will violate the FHA when ‘it has the purpose or [unjustified] effect of discriminating on the basis of national origin.’ ”
Justifications for language-related restrictions in a FHA case will be closely scrutinized to determine whether the restrictions are a proxy or pretext for race or national origin discrimination.
Examples of intentional discrimination (disparate treatment) include advertisements that have blanket statements such as “all tenants must speak English” or turning away all applicants who are not fluent in English. If the landlord or seller can access free or low-cost language assistance services, any cost-based justifications for refusing to deal with LEP persons would be immediately suspect.
More than 25 million people in the U.S. (nearly 9 percent of the U.S. population) do not communicate proficiently in English.
Approximately 16,350,000 (or 65 percent) of these individuals speak Spanish, while 1,660,000 (7 percent) speak Chinese, 850,000 (3 percent) speak Vietnamese, 620,000 (2 percent) speak Korean and 530,000 (2 percent) speak Tagalog.
“Having a limited ability to speak English should never be a reason to be denied a home,” HUD Assistant Secretary for Fair Housing and Equal Opportunity Gustavo Velasquez said. “Every family that calls this nation home has the same rights when it comes to renting or buying a home, regardless of where they come from or language they speak.”
A housing provider also violates FHA when his or her policies or practices have an unjustified discriminatory effect (disparate impact), even when there is no intent to discriminate.
Disparate impact is determined through a three-step legal evaluation of the statistical evidence of a discriminatory effect; whether the policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest; and, if so, whether there is a less discriminatory alternative policy or practice.
Earlier this year, Americans for Financial Reform issued a report, encouraging the Consumer Financial Protection Bureau (CFPB) and other federal regulators to provide more LEP protections for consumers.
“The mortgage market is a crucial part of the national economy, as well as a key building block of wealth in communities, and enhancing access for LEP homeowners would support the growth of the housing sector and of LEP market participation more broadly,” the report stated.