“No veteran should be denied a roof over their head based on how they plan to pay their rent.” Bob Ferguson, Washington Attorney General.
Established in 2015, the Wing Luke Civil Rights Unit (CRU) in the Washington State Attorney General’s Office enforces state and federal anti-discrimination laws for the people of Washington State through investigations and affirmative civil rights litigation. Within a few months of its creation, stakeholders brought a fair housing issue to the CRU’s attention: Veterans with disabilities were being turned away from housing opportunities.
Veterans were not being turned away from housing because they did not meet reasonable rental criteria; they were being rejected because they were attempting to use Veterans Affairs Supportive Housing (VASH) program vouchers to assist with paying rent.
The Veterans Affairs Supportive Housing (VASH) Program
VASH is a joint program between the U.S. Departments of Housing & Urban Development (HUD) and Veterans Affairs (VA). The program combines housing vouchers through HUD with VA support services for veterans who have a disability, including a serious mental illness, a history of substance use disorder, or a physical disability. The purpose of the program is to combat homelessness among veterans. From 2010 to 2016, veterans in Washington State received 2,609 VASH vouchers.
Civil Rights Protection
Turning VASH voucher users away from housing is not just morally and ethically wrong, it is illegal. Though Washington has not historically had general statewide protection against source of income discrimination, people with disabilities have been protected from discrimination under the federal Fair Housing Act (FHA)1 and the Washington Law Against Discrimination (WLAD)2 for decades. And Washington specifically protects veterans from discrimination under the WLAD.3 In addition, unfair or discriminatory conduct in the rental market violating the WLAD may also constitute a violation of the Washington Consumer Protection Act (CPA).4
Only veterans with disabilities use VASH vouchers, so a policy of refusing to accept them has a disparate impact on the protected classes of “honorably discharged veteran or military status,” and “the presence of any sensory, mental, or physical disability.”5
Blanket prohibitions on any person with a VASH voucher — no matter if the person otherwise meets a housing provider’s rental criteria ― discriminates against individuals based on disability and veteran status. It is a prerequisite to qualifying for a VASH voucher that an individual is a member of these protected classes under the FHA and WLAD. And the U.S. Supreme Court has recognized that targeting attributes exclusive or predominant to a particular class of people presumes targeting the class itself.6
The FHA prohibits housing providers from employing policies that have a disparate impact on protected classes, including people with disabilities.7 Like its federal counterpart, the WLAD prohibits practices that, though not motivated by discriminatory intent, nonetheless have a disparate impact on a protected group.8 And, absent a showing of a “legally sufficient justification,”9 a housing provider employing a blanket policy with a discriminatory effect will be liable for unlawful discrimination.10
Taken together, a categorical refusal to accept VASH vouchers implicates the FHA, the WLAD, and the CPA because the impact of that policy falls squarely on disabled veterans.
Washington Attorney General Investigates
If this were, in fact, happening in Washington, the CRU was determined to do something about it. To confirm the existence and gauge the scope of this practice, the CRU initiated testing across the state. “Testing” is an investigative tool used to test compliance with civil rights laws, including in the contexts of housing, employment, lending, and in places of public accommodation. Individuals pose as prospective renters, employees, borrowers, or customers for the purpose of collecting evidence about possible discriminatory practices.
Here, testers searched Craigslist for advertisements of available housing rentals, then contacted housing providers by email. The testers confirmed that the advertised unit was available, identified themselves as veterans with a disability who use VASH vouchers to assist with paying a portion of their rent, and then inquired into the provider’s policy for using VASH vouchers. Responses varied, but nine of the 70 housing providers tested responded with statements exposing blanket policies of rejecting VASH vouchers.
Eight companies entered into agreements with the Washington Attorney General’s Office to correct their conduct. They have modified their policies, obtained training for their employees, and paid monetary relief to the Attorney General’s Office. Two companies remain recalcitrant: Utah-based Apartment Management Consultants LLC and Colorado-based Mission Rock Residential LLC.
Property Managers’ Conduct
Apartment Management Consultants manages 24 residential rental properties in 10 cities in Washington, including the HighGrove and Wildreed apartments in Everett. Test communications from the CRU responding to rental advertisements for both properties resulted in blanket statements by the properties that they did not accept vouchers of any kind.
Mission Rock’s 13 properties in nine Washington cities includes the Lakeside Landing Apartments in Tacoma and Sierra Sun in Puyallup, both less than an hour from Joint Base Lewis-McChord. Test communications responding to rental advertisements at Lakeside and Sierra Sun resulted in blanket statements by the properties that they did not accept any type of vouchers or they did not participate in the VASH program.
Both companies were told that the voucher assisted a veteran with a disability in paying his or her rent, yet refused to consider accepting the VASH voucher and asked no additional questions about whether the prospective tenant otherwise met the properties’ rental criteria. Both companies advertise their properties with HUD’s fair housing, equal opportunity, and disability accessibility logos on their websites while simultaneously withholding these housing opportunities from the thousands of VASH program participants in Washington.
As of April 6, 2018, HUD’s allocation of VASH vouchers for Washington State is now up to 460 vouchers, with a total monetary value of $3,320,535.
On Sept. 30, 2018, Washington’s new law prohibiting discrimination against persons whose source of income is derived from or includes sources other than employment will be fully effective.11 This new protection covers people who use VASH vouchers in addition to other legal forms of housing assistance.
The CRU is prepared to enforce the new law and continues to expect Apartment Management Consultants and Mission Rock Residential to reconcile their policies and practices with the law.
- 42 U.S.C. § 3604.
- Wash. Rev. Code § 49.60.222.
- Id. at § 49.60.222(1).
- Id. at §§ 19.86.020. 49.60.030(3).
- Id. at § 49.60.222(1).
- See, e.g., Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
- 42 U.S.C. § 3604(f) (prohibiting discrimination on the basis of “handicap”); 24 C.F.R. § 100.500 (“Discriminatory effect prohibited”); Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507, 2525 (2015) (disparate impact claims are cognizable under the FHA).
- Kumar v. Gate Gourmet Inc., 325 P.3d 193 (Wash. 2014) (“[T]he WLAD creates a cause of action for disparate impact.”).
- See 24 C.F.R. § 100.500(b)(2).
- Texas Dep’t Housing & Community Aff. v. Inclusive Communities. Project, 135 S. Ct. 2507, 2523 (2015)(housing providers may maintain a policy that causes a disparate impact only “if they can prove it is necessary to achieve a valid interest”); 24 C.F.R. § 100.500(b)(1) (defining a legally sufficient justification as one that is “necessary to achieve one or more substantial, legitimate, nondiscriminatory interests” which “could not be served by another practice that has a less discriminatory effect”); Oliver v. Pac. NW. Bell Telephone. Co., 724 P.2d 1003, 1007 (Wash. 1986) (explaining “business necessity” defense to disparate impact claim under the WLAD).
- SB 5407, http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Senate%20Bills/5407-S2.E.pdf.