Court Rules Against Landlord and Will Not Dismiss LEP Case

A fair housing non-profit organization is suing two DeWitt, New York apartment complexes, alleging that they discriminate against foreign-born residents by refusing to rent to anyone who does not have someone who speaks English fluently living with them.

CNY Fair Housing filed the lawsuit in U.S. District Court in Syracuse, asking the Court to declare that Swiss Village Apartments and the Alps at Swiss Village are violating the federal Fair Housing Act with their policy of not renting to individuals or families with a limited ability to speak English.

The lawsuit was filed in November 2021, and also seeks an order barring the complexes from continuing their policy and asks the court to award the organization unspecified compensatory and punitive damages.

CNY Fair Housing conducted a test of the properties after being alerted to the policy by a local housing services provider. In June 2019 and August 2020, two CNY staff posed as representatives of prospective tenants who speak only limited English. When the testers called the complexes, they were told by a leasing agent that tenants must be able to read and speak English so they could communicate with the site’s managers about any issues relating to their apartments.

When the testers said they would serve as translators for the applicants, they were told that someone living in the apartment had to be able to speak English.

The Landlord has asked that the court dismiss the case, arguing that (1) a prospective tenant’s language or Limited English Proficiency (LEP) status was not a protected class under federal or state fair housing law, and (2) the complaint failed to otherwise identify the prospective tenant’s race or national origin.

CNY Fair Housing has responded that consistent with HUD guidance and case law, a prospective tenant may adequately plead discrimination based on race or national origin using proof of a housing policy employing language-related criteria. The federal government submitted a statement of interest supporting the group’s position.

The court has ruled against the Landlord and will not dismiss the case. The court gave deference to a 2016 HUD Guidance that concluded that LEP was often used as a pretext for national origin discrimination and that the FHA may be violated by “selective 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.” The court also found that nothing in the language of the FHA or related regulations prohibited the use of proof of LEP criteria as a pretext for race or national origin discrimination. Also, the group did not need to identify the specific national origin or race of particular tenants in order to state an initial case of discrimination under the FHA.

Unless the two parties settle the case, it now appears that the suit will be heard in federal court.

This case serves as a reminder that landlords should never have a policy requiring that applicants or residents speak English as a condition of occupancy.