Fair Housing in New York: Breaking the Language Barrier
Emily Dessel
Across the United States, a housing provider cannot discriminate against prospective tenants based on protected characteristics, such as race or religion, as outlined in the Fair Housing Act (“FHA”).1 In New York, the New York State Human Rights Law (“NYSHRL”) operates similarly to the FHA on the state level.2 Thus, a victim of housing discrimination in New York can bring a claim under the FHA and the NYSHRL.3
In the recent case of CNY Fair Housing, Inc. v. Swiss Village, et al., the plaintiff, represented by CNY Fair Housing, alleged that the defendants, Swiss Village Apartments, and its leasing agent, Jill Butler, had implemented language-related housing policies that unjustifiably discriminated against prospective tenants with Limited English Proficiency (“LEP”) in violation of the FHA and NYSHRL.4 The question before the U.S. District Court for the Northern District of New York was whether the plaintiff’s LEP is a proxy for one of the protected characteristics listed in the FHA and NYSHRL, thus constituting housing discrimination.5
A. Factual Background.
CNY Fair Housing is “a non-profit organization incorporated under New York State law who is ‘dedicated to eliminating housing discrimination, promoting open communities, and ensuring equal access to housing opportunity for all people in Central and Northern New York.’”6 The defendants, Swiss Village, and The Alps, are limited liability companies with their principal offices located in DeWitt, New York.7 And the third defendant, Jill Butler, is a leasing agent for Swiss Village and The Alps.8
The focus in this case is the interpretation and application of the FHA in the context of discrimination based on the plaintiff’s LEP.9 Specifically, the court is confronted with the issue of whether housing policies that pertain to language-related restrictions are in and of themselves discrimination based on the protected categories of race or national origin under the FHA.10 CNY Fair Housing initiated this case based on a complaint from a client of another organization named the Rescue Mission Alliance.11 The client, whose primary language was Spanish, faced challenges when inquiring about apartments because of her limited English proficiency (“LEP”).12 The client spoke to a rental agent at Swiss Village Apartments who insisted that she must live with an English-speaking individual to qualify to rent an apartment.13
As a response to the client’s complaint, CNY Fair Housing conducted "audit testing" with three testers: two people acting as representatives of LEP tenants and one acting as a fluent English speaker.14 These testers called Swiss Village Apartments and experienced similar language-based discriminatory responses from the rental agents, including the requirement for an English-speaking individual to live in the apartment.15
B. Relevant Law.
The FHA makes it unlawful for a landlord “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”16 Similarly, under the NYSHRL, it’s illegal to discriminate against prospective tenants based on a list of various protected characteristics.17 The protected characteristics include race, creed, national origin, marital status, military status, family status, sexual orientation, gender identity, and lawful source of income.18
To understand the court’s analysis, it’s important to grasp how the FHA and NYSHRL work in tandem. The FHA is applicable across all states and provides basic protections against housing discrimination.19 Simultaneously, the NYSHRL, a law unique to New York, provides its own guidelines regarding housing and other forms of discrimination.20 Both statutes share common objectives, but the NYSHRL extends its protection to a broader list of protected characteristics, including age, sexual orientation, and gender identity or expression.21 The court notes that “[c]laims under the FHA and [NYS]HRL § 296 are evaluated under the same framework.”22 Thus, as previously mentioned, individuals facing housing discrimination in New York can choose to bring a claim under both the FHA and the NYSHRL.23
C. The Court’s Analysis.
The U.S. Department of Housing and Urban Development (“HUD”), is the federal agency with the “authority and responsibility for administering the FHA.”24 In 2016, HUD issued guidance on how the FHA applies to a housing provider’s policies regarding a prospective tenant’s LEP (hereinafter “2016 HUD Guidance” or the “Guidance”).25 Included in the Guidance was the insight that “LEP is often used a proxy for national origin or race discrimination, and that the FHA may therefore be violated by ‘[s]elective application of a language-related policy, or use of LEP as a pretext for unequal treatment of individuals based on race, national origin, or other protected characteristics.’26 Accordingly, in this case, the court had to determine whether to give the 2016 HUD Guidance deference and if so, how much.27
The court discusses something known as Skidmore deference, which allows for some level of deference to agency interpretations based on several factors.28 “In Skidmore v. Swift & Co., 323 U.S. 134 (1944), the Supreme Court held that ‘an agency's interpretation may merit some deference whatever its form, given the “specialized experience and broader investigations and information” available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires.”’29 Courts have discretion to apply Skidmore deference and can find that it is inappropriate or unnecessary under the facts of the case.30
The plaintiff argues that the 2016 HUD Guidance should be considered authoritative and persuasive in interpreting the FHA in the context of LEP discrimination claims.31 The court mentions that the “United States Government supports Plaintiff's position, arguing that the HUD guidelines are ‘thorough, well-reasoned[,] and consistent with applicable caselaw and other HUD guidance’ and are therefore entitled to Skidmore deference.”32 However, the defendants challenge its applicability and argue that it should not be given deference.33 The court ultimately finds that the 2016 HUD Guidance is “persuasive and entitled to deference.”34 It emphasizes that the guidance doesn't assert that LEP itself is a protected class under the FHA but rather suggests that language-related policies may be used as evidence of discrimination based on a protected class, such as race or national origin.35 In other words, the court holds that LEP can be considered a proxy for race or national origin in the context of a discrimination claim brought under the FHA.36
Regarding the defendants' argument that the complaint should have identified the specific national origin or race of the prospective tenants and that the defendants must have been aware of this information, the court rejects this noting that specific national origin or race identification is not required to state a prima facie case of discrimination under the FHA.37 The court notes that because it is well established that fair housing organizations can use testers to form a complaint of a violation of the FHA, the plaintiff does not need to specify the national origin or race of the particular prospective tenant who was harmed by the policy.38 Furthermore, the court highlights that discriminatory intent, in the context of the FHA, can be “inferred from the totality of the circumstances”, even without knowledge of a tenant's race or ethnicity.39 The court decided not to dismiss the case, affirming that the 2016 HUD Guidance is persuasive and deserving of deference, and that identification of national origin or race of tenants is not a prerequisite for the plaintiff's claims under the FHA.40
This case is especially relevant for housing providers, prospective tenants who may not have English as their first language, and housing discrimination advocacy organizations in New York. The court’s decision sets a precedent that LEP is a proxy for national race or origin under the FHA and NYSHRL, thus someone who has been prevented to rent or buy a housing accommodation based on their LEP can bring a claim under the FHA and the NYSHRL. Further, the landlord or housing provider does not need to identify that prospective tenant’s race or national origin to face a claim of discrimination. Thus, for either a person with LEP or a lawyer working on fair housing issues, this case is a wonderful resource to understand both: (1) how the court analyzes claims brought under the FHA and NYSHRL, and (2) how the court considers and discusses administrative agency guidelines.
42 U.S.C.A. § 3604.
N.Y. Exec. Law § 296 (McKinney).
CNY Fair Hous., Inc. v. Swiss Vill., LLC, No. 521CV1217MADML, 2022 WL *2643573 (N.D.N.Y. July 8, 2022).
Id at 1.
Id.
Id.
Id.
CNY Fair Hous., Inc. v. Swiss Vill., LLC, No. 521CV1217MADML, 2022 WL 1 (N.D.N.Y. July 8, 2022).
Id.
Id at 4.
Id at 1.
Id.
CNY Fair Hous., Inc. v. Swiss Vill., LLC, No. 521CV1217MADML, 2022 WL 2 (N.D.N.Y. July 8, 2022).
Id at 3.
Id at 4.
42 U.S.C § 3604(a).
N.Y. Exec. Law § 296 (McKinney).
Id.
42 U.S.C § 3604.
N.Y. Exec. Law § 296 (McKinney).
Id.
CNY Fair Hous., Inc., 2022 WL 2 at 4.
Id at 1.
Id at 5.
U.S. Dep't of Hous. & Urb. Dev., Office of General Counsel Guidance on Fair Housing Act Protections for Persons with Limited English Proficiency 1 (Sept. 15, 2016), https://www.hud.gov/sites/documents/LEPMEMO091516.PDF.
Id.
CNY Fair Hous., Inc., 2022 WL 2 at 4.
Id at 5.
Id.
Id.
Id at 5.
CNY Fair Hous., Inc. v. Swiss Vill., LLC, No. 521CV1217MADML, 2022 WL 4 (N.D.N.Y. July 8, 2022).
Id.
CNY Fair Hous., Inc., 2022 WL 2 at 5.
Id.
Id at 7.
Id.
Id.
Id.
CNY Fair Hous., Inc. v. Swiss Vill., LLC, No. 521CV1217MADML, 2022 WL 4, 7 (N.D.N.Y. July 8, 2022).