“We Only Serve Our Own”: When Cultural Preference Becomes Housing Discrimination

For many families, the search for an assisted living facility does not begin under ideal circumstances. It may begin after an elderly parent has fallen, been hospitalized, begun experiencing dementia, or can no longer safely live alone. Decisions that families once imagined they would have months or years to make suddenly have to be made in days.

They begin calling facilities. They ask about vacancies, costs, levels of care, meals, transportation and whether someone can give them a tour.

Imagine, then, being told something quite different: This facility is really for members of our community. Or perhaps the message is delivered more gently: Your mother probably would not be comfortable here. Maybe the caller is simply encouraged to look somewhere else.

Those statements may sound like expressions of cultural preference. Depending upon the circumstances, however, they may raise serious fair housing concerns.

This article arises from a case my office handled within the last few years involving allegations that prospective residents were not being afforded equal access to assisted living opportunities because of their race, ethnicity or national origin. The matter provided a practical reminder that discrimination is not always expressed openly or in unmistakable terms.

Our firm worked alongside a local nonprofit fair housing organization in investigating allegations involving several assisted living facilities in Southern California. Trained fair housing testers of different racial and ethnic backgrounds made inquiries to determine whether prospective residents were being afforded equal access to housing opportunities.

The allegations that emerged presented an important distinction in fair housing law: there is a difference between serving a particular cultural community and excluding everyone who does not belong to it.

When Welcome Becomes Exclusion

A facility may quite legitimately develop services that appeal especially to members of a particular ethnic, cultural, linguistic, or religious community. It might employ staff who speak a particular language. Its kitchen may prepare foods familiar to a particular culture. Its activities may reflect the traditions of many of its residents. Religious observances may form part of everyday life at the facility.

There is nothing inherently discriminatory about any of that. Indeed, these services may make an assisted living facility especially attractive to families trying to preserve some continuity in an elderly parent’s life.

The legal problem arises when welcome becomes exclusion.

Suppose a person perceived as belonging to the facility’s preferred ethnic group calls and is readily told about vacancies, prices and admission requirements and is invited to tour the property. Later, another prospective resident, perceived as belonging to a different racial or ethnic group, makes essentially the same inquiry but is told that the facility caters to a particular community and that the family might be happier looking elsewhere.

Those two conversations may tell a very different story from the facility’s advertising brochure.

Federal and California fair housing laws generally prohibit discrimination in housing because of protected characteristics including race, color, national origin and ancestry. Assisted living facilities do not ordinarily cease to be subject to fair housing principles simply because they also provide care and other services to their residents.

And discrimination does not require someone to say, We will not rent to you because of your race.

Modern discrimination is frequently more subtle.

It can sound polite: “Everyone here is from the same community.” “Your father may have trouble fitting in.” “Communication might be difficult.” “You may want to try another facility.”

None of those statements necessarily establishes discrimination standing alone. Context matters. But when prospective residents of different racial or ethnic backgrounds receive materially different information about the same housing opportunity, the distinction becomes significant.

This is where the concept of steering becomes important. Fair housing law is concerned not merely with who ultimately receives the apartment or room. It also addresses discriminatory practices that discourage people from pursuing housing opportunities because of protected characteristics.

What Happens at the Door

There is another important point. A facility whose residents happen to be overwhelmingly members of one ethnic community is not necessarily discriminating against anyone.

People naturally choose communities in which they feel comfortable. Language, food, religion, friendship and culture can strongly influence those choices, particularly late in life. If residents voluntarily choose a facility because of those characteristics, the resulting demographic makeup does not itself establish unlawful discrimination.

The more important question is what happens at the door.

When someone outside that community calls, is that person told about vacancies?

Is the family invited to tour? Are they given the same pricing information? Are admission requirements explained in the same manner? Are they encouraged to apply? Or are they subtly told that this is not a place for people like them? That distinction matters.

Families searching for assisted living are often doing so at an emotionally difficult moment. They may already be dealing with declining health, dementia, financial pressure and the painful realization that a parent can no longer live independently. They should not also have to decipher whether a polite suggestion that they “look somewhere else” actually means something more.

Cultural identity can make assisted living warmer, more familiar and more humane. The law does not require facilities to erase those differences.

But there is an important difference between saying, “We provide services designed around this culture, and everyone is welcome,” and saying, “We provide services for this community, and everyone else should go somewhere else.”

One celebrates culture. The other may violate the law.

Disclaimer: The information contained in this article is provided for educational and informational purposes only and should not be construed as legal advice. Every case is unique, and the outcome of any legal matter depends upon its particular facts and circumstances. References to investigations, allegations, lawsuits, settlements, verdicts, or prior matters are intended solely to illustrate legal principles and do not guarantee or predict similar results in any future matter. Nothing in this article creates an attorney-client relationship between the reader and Okojie Law. Individuals facing housing discrimination or other civil rights issues should consult qualified legal counsel regarding their particular circumstances.