ANTONETTE SEWELL Director of Legal Services FAIR HOUSING 101 ANTONETTE SEWELL Director of Legal Services

The Constitution of the United States "It is the policy of the United States to provide, within Constitutional limitations, for fair housing throughout the United States." - 42 U.S.C. §3601

The Fair Housing Act Race (Black v White) There are SEVEN Protected Classes: Race (Black v White) Color (Light v Dark skinned persons) Religion (Inclusion in a specific religious group) National Origin (Hispanic, Asian/Pacific Islander or American Indian/Alaskan Native Sex (male or female) Familial Status (presence of children under the age of 18 or pregnant women) Disability Has a physical or mental illness that substantially limits one or more major life activities; Has a record of such a disability OR Is regarded as having such a disability

What is Fair Housing/Equal Opportunity? Ensuring non-discriminatory treatment of individuals within the protected classes. Providing equal access to all programs, services and activities with federal funds. 3. Affirmatively Furthering Fair Housing.

WHAT IS DISCRIMINATION UNDER THE FAIR HOUSING ACT Any difference in treatment, exclusion of, or failure to offer a person an equal opportunity to participate in, benefit from or use a service, program or activity because of race, color, religion, national origin, sex, familial status or disability.

Three Types of Discrimination 1. Overt Discrimination Discrimination that is intentionally and blatantly inflicted. 2. Disparate Treatment Discrimination that occurs when a protected class is treated in a less favorable manner. This is usually an intentional decision to treat people differently based on a protected status. 3. Disparate Impact Equally applied treatment that appears neutral that has a discriminatory effect in its application. This is usually unintentional.

ENSURING EQUAL TREATMENT YOU MUST APPLY ALL POLICIES/PRACTICES UNIFORMLY AND CONSISTENTLY IT IS CRITICAL TO REVIEW: 1. YOUR POLICIES/PRACTICES 2. APPLICATION OF THOSES POLICES/PRACTICES 3. RESULTS AND POTENTIAL IMPACT

COVERED ACTIVITIES Sales Lending Insurance Rental Down-Payment Assistance All Areas Connected With Residential Housing Municipal Services Infrastructure improvements Public Facilities Neighborhood Revitalization Economic Development Section 8 Rental Assistance Any activity receiving federal funds

Covered Individuals/Entities Local Governments Public Entities Owners Managers Homeowner’s Associations Lenders Real Estate Agents Brokers Insurers Developers/Builders Architects Contractors Engineers Landscape Architects All Persons/Entities Involved with Residential Housing

ENSURING EQUAL ACCESS Recipients of Federal Financial Assistance must ensure MEANINGFUL access to their programs, services and activities by persons living with disabilities AND persons with Limited English Proficiency (LEP.)

WHAT IS MEANT BY PROGRAM ACCESSIBILITY? The best practice is to ensure that persons with disabilities have an equal opportunity to participate in and benefit from the program, service or activity and have the same range of choices as those offered to non-disabled individuals.

RECOMMENDATIONS TO ADDRESS ACCESSIBITLY MANDATES?   CREATE accessibility policies and procedures. Provide NOTICE of the accessibility protocols and practices to employees, applicants, recipients and program participants. Provide TRAINING to staff. AUDIT all federally financed programs and services and actual buildings to evaluate compliance. REVIEW internal and external requests for Reasonable Accommodations and/or Modifications.

RECOMMENDATIONS FOR ACCESSIBILTY MANDATES CONTD. INVESTIGATE discrimination or lack of accessibility complaints. RECORD requests, complaints and determinations.   Develop GRIEVANCE procedures for both external and internal (staff) requests and complaints. Routinely track UPDATEs to laws and regulations related to accessibility and non-discrimination.

REGULATORY ACCESSIBILTY MANDATES Section 504 requires that recipients take steps to ensure effective communication with applicants, beneficiaries, and members of the public (24 CFR 8.6.)   This may include but is not limited to: conducting outreach in a manner that will reach persons with disabilities and ensuring that information about programs and services are disseminated in a manner that is accessible to persons with disabilities. Each recipient must have an Effective Communication Plan. Recipients with 15 or more employees must designate an employee (504 Coordinator) to ensure the recipients’ programs, services and activities meet the requirements under Section 504.

WHAT ARE THE COVERED ACTIVITIES FOR HUD RECIPIENTS? Eligibility criteria Application process Admission to programs Service delivery Tenancy, including evictions Physical accessibility of residential units, offices and meeting sites Outreach and public contact Employment policies and practices

WHAT IS REASONABLE ACCOMMODATION UNDER SECTION 504?   A reasonable accommodation is a change, adaptation or modification to a policy, program, service, or workplace which will allow an otherwise qualified person with a disability to participate fully in a program, take advantage of a service, or perform a job. In order to show that a requested accommodation is necessary, there must be an identifiable relationship or nexus, between the requested accommodation and the individual’s disability.

Reasonableness is determined based on the answers to two questions: HOW DO YOU DETERMINE WHETHER A REQUEST FOR A CERTAIN ACCOMMODATION IS REASONABLE?   Determining reasonableness of a request for an accommodation must be done on a case by case basis. Reasonableness is determined based on the answers to two questions: 1. Does the request impose an undue financial and administrative burden? 2. Would making the accommodation require a fundamental alteration in the nature of the provider/recipient’s operations? If the answer to either question is yes, the requested accommodation is considered not reasonable. An alternate, comparable accommodation or other accommodations that qualify as reasonable should be offered to the requester.

DCA’S Fair Housing Policies Use a tag line: “The Georgia Department of Community Affairs is committed to providing all persons with equal access to its services, programs, activities, education and employment regardless of race, color, national origin, religion, sex, familial status, disability or age.” If you require an accommodation or translation services please contact_______.

Reasonable Accommodation Policy/Forms. Grievance Procedures Recording DCA’s Effective Communication Policy which includes the following: Language Access Plan Reasonable Accommodation Policy/Forms. Grievance Procedures Recording HUD and GCEO Fair Housing Complaint forms. All accessible on DCA’s website by clicking on the Fair Housing Icon.

Access also includes language as a barrier Limited English Proficient (LEP) persons Develop a Language Access Plan (LAP) Complete analysis to identify the need. 18 Georgia counties meet the DOJ threshold of 5% of population who speak a language at home other than English as their primary language and speak English “not well” or “not at all” (Spanish).

DCA now requires that grantees in these 18 counties provide outreach and public notices in Spanish as well as English Atkinson County Evans County Hall County Clayton County Gilmer County Murray County Cobb County Gordon County Polk County Colquitt County Grady County Telfair County DeKalb County Gwinnett County Tift County Echols County Habersham County Whitfield County

Services Provided under an Effective Communication Policy 1. Reasonable Accommodation or Modification 2. Oral Interpreters 3. Written Translation Services 4. Assistance Animals 5. Accessible Public Meeting Sites

Affirmatively Furthering Fair Housing States and local governments must certify that they are affirmatively furthering fair housing (AFFH) in their Consolidated Plans (ConPlans) and Public Housing Agency Plans (PHA Plans). In order to comply, these jurisdictions must have an Analysis of Impediments to Fair Housing Choice, also known as an AI. While these requirements have historically been overlooked, affirmatively furthering fair housing took on new importance in the wake of a court decision on an AFFH case in Westchester County, NY and renewed attention and enforcement from HUD. A New AFFH rule was proposed on July 19, 2013; final regulations are expected late 2014.

AFFH Local governments and States that receive Community Development Block Grants (CDBG), HOME Investment Partnerships (HOME), Emergency Solutions Grants (ESG), and Housing Opportunities for Persons With AIDS (HOPWA), as well as public housing agencies (PHAs) are required to affirmatively further the purposes of the Fair Housing Act. HUD proposes an improved structure and process whereby HUD would provide these program participants with guidance, data, and an assessment template from which they would complete an assessment of fair housing (the AFH). This assessment would then link to Consolidated Plans, PHA Plans, and Capital Fund Plans, meaningfully informing resulting investments and related policies to affirmatively further fair housing.

Affirmatively furthering fair housing activities include: Identifying impediments to fair housing choice Conducting fair housing planning Taking actions to overcome the identified impediments Maintaining records Assuring that local governments comply with certifications.

Post Fair Housing posters/flyers in public places Pass resolution supporting Fair Housing Discuss Fair Housing at Public Hearings Conduct a Public Information Campaign on Fair Housing Advertising the availability of housing directly to populations “less likely to apply” Outreach to advocacy groups Train elected officials and staff on Fair Housing Laws and the complaint process

Identify/enlist organizations that provide housing services (housing counseling agencies, etc.) Offer referral services to fair housing advocacy groups that conduct ordinance, regulatory and/or restrictive covenant reviews Educate code enforcement staff on accessibility requirements for newly constructed facilities Conduct/sponsor Fair Housing Seminars or other “Housing Fair” type activities

Recent Enforcement Actions In recent months, HUD investigations have found that a number of jurisdictions have fallen short in fulfilling the AFFH obligation. HUD has taken action to remedy those situations mostly through VCAs. These jurisdictions include: · Aurora (IL) Housing Authority · Dallas, TX · Dubuque, IA · Galveston, TX · Jefferson Parish, LA · Joliet, IL · Houston, TX · Marin County, CA · Nebraska · New Jersey (Hurricane Sandy) · St. Bernard Parish, LA · Sussex County, DE · Westchester County, NY

Economic Opportunities for Low Income Persons SECTION 3 Economic Opportunities for Low Income Persons To ensure that economic opportunities generated from HUD funded projects will, “to the greatest extent feasible,” be directed to low and very low income persons- particularly those receiving assistance for housing. (12 USC 1701u Section 3, as Amended)

Refocus on Section 3 RESULTS… Hurricane Katrina Economic Crisis Urgency of Job Creation RESULTS… Renewed focus on Enforcement of Section 3 requirements by HUD.

(Race and Gender neutral!) Section 3 Criteria Eligibility based on two things: 1. Proximity to where funds expended. 2. Income Level of potential Section 3 resident. (Race and Gender neutral!)

Funding Applicability Public and Indian Housing (PHAs). 1. Development (construction) 2. Operations 3. Modernization NO Contracting or Funding Thresholds for PHAs (vs. other programs)

Funding Applicability Community Planning and Development. 1. Nearly all construction (development) funds - Housing Construction - Housing Modification - Other Public Construction 2. Examples Include: CDBG, HOME, HOWPA, ESG, NSP, etc. (Multifamily projects such as 202/811s covered during development phase).

Threshold Requirements Entitlement Community Recipients (and States): Amount exceeds $200,000 for community development program assistance in the aggregate from all applicable grant sources. Contractors and Subcontractors: Any single contract or subcontract exceeds $100,000. Individual contracts are not aggregated. Contractor now has an affirmative duty to implement the Section 3 program. Section 3 requirements apply to the entire project where Section 3 covered funds are expended, regardless of whether the project is fully or partially funded with Section 3 covered funds.

Triggering Events For Section 3 Covered Funds: 1. When covered contracts are awarded. 2. Necessary New Hires for contractors to complete the Section 3 project (or when the PHA hires for any position). 3. Subcontracting related to the expenditure of Section 3 covered funds. (No hiring or subcontracting is ever required unless it is necessary to complete the project).

Section 3 Definitions 1. Employment (and training) Opportunities 2. Section 3 Resident 3. Low and Very Low Income Household 4. Section 3 Business Concern

Employment Opportunities For covered projects (PHAs or CPD): With regards to contractors and subcontractors: All positions are considered, including professional services such as architects, engineers and managers. For PHAs, all positions are included up to and including the Executive Director.

Section 3 Resident A Public Housing Resident or A resident of the Metro Statistical Area (MSA) or non-metro county in which Section 3 covered assistance is expended and who qualifies as a low income or very low income person.

Low & Very Low Income Low Income- Less than 80% of the median (40% of the whole) MSA or non-metro county household income (Info at www.hud.gov/section3). Very Low Income- Less than 50% of the median MSA or non-metro county income. Public Housing residents always qualify!

Section 3 Business Concern 51% or more owned by Section 3 resident(s), or 30% of employed staff are Section 3 residents, or 25% of Subcontracts (dollar amount) committed to Section 3 businesses.

Preferences Drive the Program Who should move toward the top of the “list” when new hiring takes place or when contracts are awarded? 1. Always think “inside-out.” 2. Those low income residents that live closest to where the covered funds are expended should receive the most preference and opportunities that flow from the project. Preferences are awarded in two areas: 1. Employment & Training Opportunities 2. Contracting Opportunities

Preferences (PHAs) In Employment and Training (PHAs): 1st: Residents of housing development where funds are expended. 2nd: Residents of other housing developments managed by the HA (including Section 8 voucher holders). 3rd: Participants in HUD Youthbuild. 4th: Other Section 3 Residents.

Preferences (CPD) In Employment and Training: 1st: Section 3 Residents residing in the “service area or neighborhood” where the covered project is located. 2nd: Participants in HUD Youthbuild. 3rd: Other Section 3 Residents (which always include persons living in public housing or receiving housing assistance).

Preferences (CPD) In Employment and Training: The homeless in the service area or neighborhood should always get first priority in employment and training opportunities whenever projects are funded by the Stewart B. McKinney Homelessness Assistance Act (42 U.S.C. §11301) (construction related activities). “Supportive Housing” “Shelter Plus Care”

Preferences (PHAs) For Section 3 Business Concerns: 1st: Business Concerns that are 51% or more owned by residents of the housing development or whose permanent full-time work force includes 30% or more of these individuals. 2nd: Same as above except for residents of “other housing developments or developments managed by the HA.” 3rd: HUD Youthbuild Programs in the MSA. 4th: Any other Section 3 Business Concern

Preferences (CPD) For Section 3 Business Concerns: 1st: Section 3 business concerns that provide economic opportunities for Section 3 residents in the “service area or neighborhood” where the covered project is located. 2nd: HUD Youthbuild Programs (in the MSA). 3rd: Any other Section 3 Business Concern

Numerical Goals (PHAs) In Employment: -30% of New Hires annually (Both at the PHA itself and for new positions created because of contracting). In Awarding Contracts (% of Total $ Amount Expended): -10% of Building Trades work (including maintenance, repair, modernization and development). - 3% Professional Services Safe Harbor Provisions (compliance presumed).

Numerical Goals (CPD) In Employment: -30% of New Hires annually (New hires needed to complete the Section 3 covered project). In Awarding Contracts (% of Total $ Amount Expended): -10% of Section 3 covered project(s) (Construction). - 3% of service contracts ancillary to construction. Safe Harbor Provisions (compliance presumed).

Flexible Program Design HUD proscribes very little regarding specific program requirements. Flexibility is the overriding concept. If, after reasonable efforts, HUD Recipients are frustrated or not securing results, the program is likely being implemented incorrectly. HUD Goals are 30%, 10% & 3%- NOT 100%, 100% & 100%! HUD Recipients decides how to achieve compliance. “Front-End” recruitment efforts and “Back-End” preferences and bid allowances are at the near total discretion of the Recipient. Meet your goals!

Section 3 Qualifications Key Points: Based on Section 3 Resident income, not assets Look at income over previous 12 months (Guidance). Based on family or household income (not individual). Section 3 is geared toward full-time positions. Section 3 resident must meet the qualifications of the position to be filled (but can offer training programs). 6. Section 3 business concern must have the ability and capacity to perform.

Section 3 Qualifications Key Points (Continued): 7. “Rehires” are still considered “New Hires” and need to meet the Section 3 Resident Definition in order to be counted as a Section 3 new hire. Businesses cannot claim to have no new hires because in practice they recall the same employees when they have work. 8. Compliance with HUD requirements and goals should be viewed as the minimum, not necessarily the ideal.

Procurement Procurement procedures must still be conducted in a competitive manner consistent with the requirements of 24 CFR Section 85.36. This section does specifically authorize and encourage a geographic preference when possible. Remember, the “Lowest Responsive Bid” is the one that complies with all federal regulations, including Section3. Bid allowances are authorized. Also Remember, Section 3 is not applicable to simple acquisition costs (such as for land).

Labor Standards Section 3 does not trump any of the federal labor standards, prevailing wage requirements or apprentice/training guidelines from HUD or the Dept. of Labor.

Minimum Requirements Notification to Section 3 Residents and Business Concerns. Include Section 3 Clause in all business solicitations (§135.38). Develop a Section 3 plan (examples in Appendix of Regulations at 24 C.F.R §135). Ensure compliance from contractors and subcontractors. Keep record of actions and results.

Sample Certifications Found at: www.hud.gov/section3 - Section 3 Resident Certification - Section 3 Business Certification **Self Certification is the HUD standard**

Reporting Requirements Submit HUD Form 60002 Annually Timing of Report: Submit contemporaneously with annual funding report (CAPER for Entitlement Communities), or, if no annual funding report is required (PHAs), by January 10th or within 10 days of project completion (202s/811s), whichever occurs earlier. Separate Report for each grant based on yearly expenditures. Must be submitted online at www.hud.gov/section3

Reporting Requirements (Continued) Use the Narrative Box! HUD has provided a narrative box at the end of the current reporting form (and more on drafts of a proposed new form). USE IT! This is the place to describe your Section 3 efforts beyond the “numbers.” For example, employment goals only count “full-time” employees, but affirmative efforts to recruit Section 3 residents for part-time positions still shows a commitment to the spirit of the program. Don’t just report “zeros” across the board with no explanation. Explain why if you failed to meet your goals.

Implementing Strategies Network/Collaborate with local agencies. Participate in Regional Consortium. Adopt and execute a Section 3 plan. Designate a Section 3 coordinator. Establish certification procedures. Develop and maintain lists of Section 3 residents. Develop and maintain lists of Section 3 businesses Establish procedures for notifying Section 3 Residents and businesses of contracting opportunities and Section 3 covered projects. Sponsor a Section 3 workshop. Develop appropriate penalties/incentives for noncompliance or good performance. Help developers advertise vacancies. Develop a Section 3 record keeping system.

Most Important Key for Success Meeting with Local Contractors: Entitlement Communities and PHAs must meet and coordinate with local contractors, especially the ones that routinely bid on government construction projects. They receive the contracts (10% Goal), and they hire for the new positions created (30% Goal). Getting businesses certified (once done, good for 3 years) and explaining the hiring requirements and reporting expectations is the key to a successful program.

FHEO UPDATE DCA’S COMPLIANCE REVIEW FAIR HOUSING COMPLAINTS HUD’S ENFORCEMENT ACTIVITIES

ANTONETTE SEWELL antonette.sewell@dca.ga.gov 404-327-6860 CONTACT INFORMATION