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Is it Discrimination not to accept tenants who do not know English?

On 8-6-11 I received the following email from a landlord who was a member of RHAGS in Springfield:

“As a warning to our members. The inability to speak English can not be a reason to discourage a prospective tenant. Commissioner Jamie R. Williamson, who spoke to our RHAGS members would like to come back and explain .”Disparate Impact”

I thought you might be interested in my recent Conciliation Conference with MCAD. The Complainant, who I never spoke to, because she couldn’t speak English,  had the Deputy General Council, Yaw Gyebi. sitting at the Table, arguing for her. I was also at the table alone. The person who I did speak to on the phone wasn’t present. The Commissioner Jamie R. Williamson, who spoke to our RHAGS members, was at a table with the American and Commonwealth Flags,  facing us.

I complained that the person I spoke to on the phone wasn’t present and was told that she wasn’t required to be there because she wasn’t the complainant, the woman who couldn’t speak English was.

My contention was that I did not refuse to show the apartment to the Complainant, I asked the person who I spoke to on the phone how I could deal with a tenant who I couldn’t communicate with and said I have trouble with tenants who I can communicate with. She didn’t suggest a solution. I asked about her income, as I always do in an effort to screen out those who would not qualify because of lack of sufficient income. She hung up, called HUD who referred it to MCAD.

The Deputy General Council, using my written, notarized and affirmed statement to bolster his case against me, insisted on interpreting what I wrote and I interrupted him a couple times to explain to the commissioner that he was misconstruing what I wrote.

She asked him to take his client to an adjacent room and explain, through an interpreter, what was going on while she spoke to me.

She explained to me that this could be a costly and time consuming legal battle for me if we didn’t settle it. The Deputy General Council who represents both the Commonwealth and the Complainant was confident he would prevail because of “Disparate Impact” on the Complainant. I had stated that I didn’t refuse to show the apartment and also the inability to speak English was not a Protected Class.

He emphatically stated several times that “Disparate Impact” would be a violation of anyone who couldn’t speak English and therefore they would be of a different national origin.

After sitting alone for a long time, while the Commissioner  was negotiating with them in the other room, she came back to the Conference Room, said that because I wasn’t represented by Council she was taking that roll and asked me if $50.00 would make everything go away. I responded, ” they want to give me $50.00? ” and she said no, they want me to give them $50.00. I said They have caused me a lot of time and trouble, writing letters, having them notarized and affirmed and taking an afternoon off to come to this conference, by someone just picking up the phone and making a complaint. I refused to give her any money. I offered to show her the apartment but she refused because she found another one.

I agreed to take a four hour training by an approved MCAD trainer, amend my policies regarding non-English speaking tenants and publish my rental ads in El Pueblo for three years, when publishing ads in the Republican.”

8-7-11 email from me to X and RHAGS and Jamie Williamson:

X, thank you for having the courage to share this. I wish more landlords had similar courage.

Your story really got me angry. This overly-aggressive behavior of MCAD is very disturbing.

English-only policies may have disparate impact because they may have adverse impact on members of a protected class – in this case people with different national origin. On that we can agree.

That being said, policies having disparate impact are not illegal or discriminatory as long as the employer can show that they have legitimate business reasons to implement these policies.

First of all we are not employing the tenants, they are not our employees and second, it should go without any question that when it comes to landlords we have legitimate safety concerns about not being able to be communicated to and contacted in cases of emergencies and even non-urgent day-to-day issues. We don’t demand that tenants speak English with anyone else but we are certainly entitled to ask that they are able to communicate with us on their own or having someone translate for them. We don’t ask for perfect English but we can expect that they are able to understand our agreements and to be able to report issues with the apartment or building.

Requiring otherwise would be the equivalent of requiring that we provide unreasonable accommodation which we are not expected to do. The Unites States Supreme Court defines unreasonable accommodation as one that creates “undue financial and administrative burdens” on us.  It seems to me having to learn 197 different languages or even one more language to be able to communicate with our tenants is slightly unreasonable and so is having to have an interpreter handy every time we get a call and so is advertizing in foreign languages or having all our contracts translated into different languages. This should be optional not required. We also should not to be required to advertize in foreign-language publications which I find to be the most offensive part of this story. This is not a reasonable accommodation.

Even the goody two shoes MCAD have translated only a small portion of their web page and only in 4 languages – Portuguese, Spanish, Creole (for some reason) and Chinese. What about all the other nationalities that are practically discouraged to avail themselves to the wonderful services of the MCAD? In addition, it looks to me MCAD are gradually but surely trying to import concepts from employer-based discrimination into housing-based discrimination which are not completely identical.

How about those of us who advertize just a web page because of the number of available apartments all over the state and put no phone number in the paper ad? I guess the MCAD can say that we are discriminating against people who can’t read our web page or fill an online application because they do not know English. How far are we going to go here?

Jamie Williamson, I would be very interested to participate in a landlord group meeting with you where you can, with a straight face, defend these over-zealous grabs by the MCAD. I have spoken several times with you and I know that you are or were a landlord yourself and that gives me confidence that you have more understanding and empathy to the business decisions we have to make as landlords and trying to protect the safety of all tenants not just protected classes.

Disclosure: And this opinion, by the way, comes from someone for whom English is his 3rd not 1st language. I basically learned English only after I came to this country at the age of 22. I still don’t know it well but at least I am willing to take personal responsibility for that rather than blame it on everybody else.”

And on 8-11-11 I wrote an email to Jamie Williamson who is the Commissioner of MCAD, Western MA:

“Jamie, X emailed me the other day that he feels that the MCAD tried to intimidate him by threatening a long and expensive process and suggested to him that they could bring a violation for lack of “reasonable accommodation” because the tenant had a disability in a way because they knew no English. I am very concerned about this new information that was shared to me over email.

We cannot have the MCAD or any other government agency engage in intimidation and coercion to settle cases by trumping up charges and making threats. I have confidence that under your leadership the MCAD will review its policies not just for this case but in general. Not being able to face the accuser is also very troubling. We do not want to go back to the nights when the government’s reps couldn’t wait to prep the central square fire and burn the witch after just one anonymous tip.

This electronic letter is reaching about 300 landlords today and SPOA and MRHA have independent newsletters with the potential to reach several thousand more in the coming days which is a good idea in my opinion.

It is only right that this case is reviewed again within MCAD and the misguided requirement that this landlord advertises for 3 years in a foreign language publication is waived. Also someone may need to sit down with the investigators in this case and have a conversation regarding high-pressure tactics like intimidation, coercion and making threats to get us to settle regardless of liability. It is really in the best interest of your organization that this is done because you want the MCAD to be respected for its noble work and not ridiculed a million times around dinner tables.

Just to quickly summarize my position in my previous email – denying housing to non-English speaking people is not Discrimination if they have no interpreter because we have legitimate safety issues. The inability to speak English is not a disability. It is a choice. We do not have the resources to provide an interpreter and providing an interpreter would be unreasonable for 99% of landlords and therefore not providing an interpreter cannot be taken as refusing to provide “reasonable accommodation” even if the person was of different national origin which in cases where they come from US Territories is questionable to begin with.

In cases where the Complainants come from US Territories like Puerto Rico, for example,  there are even more issues to take into account. Correct me if you think I am wrong but it seems to me that even if English-only policies have adverse effect on people with different national origin and could therefore be considered discriminatory, residents of US territories who get US citizenship by birth are hardly to be considered “of different national origin” and therefore are precluded from even raising that issue. They cannot have it both ways and play the “different national origin” card only when convenient.

I swear sometimes I get the feeling that the MCAD feels it has helped all the real victims of intentional discrimination out there, solved all the real problems with Discrimination in America and now they have the luxury to go after unintentional discrimination and put their substantial resources behind questionably fake victims (:”