Written By Contributing Writers Jennifer L. Martin, ESQ., Valeria Oman, ESQ., and Melissa Bauman Ward, ESQ.
There’s been a lot of buzz about bias lately, most of it negative. Wehe supposed to identify it, counteract it, and then eliminate It. That’s enough to make one avoid the topic altogether in the hopes that avoiding the “Ides of bias will somehow make us less biased. However, the less we focus on and are aware of blas, the larder It Is to recognize, identify, and control.
Unintentional bias affects our behavior as Individuals, community members, directors, and managers. It allocates our communities and interpersonal interactions. Unlawful prejudice and discrimination exposes our communities to legal risk. But there are strategies to combat unlawful bias in our communities, they are reducing the risk of the liability and community harm that it can cause.
WHAT IS BIAS?
Most people equate “bias” with “discrimination” or “prejudice”, an incomplete definition. Not all biases are negative, and everyone has them because our biases are shaped by our experiences and culture from birth. Our biases are embodied in our thought processes, or what psychologists call “cognition.” A more complete definition of bias is that it is the cognitive assumptions we make when interpreting the world around us based on our thought processes and cultural experience.
Bias is a subset of cognition; explicit and implicit cognition are the ways in which our brains navigate the world around us. Explicit cognition, or slow thinking,” Is what we do when we sit down to make a decision or solve a problem thoughtfully. Implicit cognition, or Fast thinking, ” Is the kind of automatic, subconscious way we engage with the world around us. Ninety-five percent of our cognition is Implicit (fast thinking), which means that it is very powerful.
Having a better understanding of our own fast thinking is crucial to our ability to combat bias.
As with cognition, there are two types of bias: explicit and implicit. Explicit bias Is the conscious belief that some generalizations of people or ideas are better than others, while implicit bias consists of attitudes and stereotypes that unconsciously affect our understanding, actions, and decision-making.
Our subconscious, implicit biases may lead us to make assumptions about people based on characteristics like race, ethnicity, gender, age, and appearance, among other things. These biases develop over a lifetime, beginning early through exposure to direct and indirect messages, including how media and news programming portray groups of people.
Everyone has implicit biases. They can affect even those who are committed to being impartial. In fact, if you strongly identify as a fair and impartial person, that can make you more susceptible to acting on Implicit biases because you are less likely to allow yourself to be aware of your biases. The good news is that when we know bias is likely to be an issue – when It Is front and center – we can take affirmative steps to minimize its impact in our spheres of influence.
IDENTIFYING BIAS
Learning that we are biased does not make us “bad” people. Rather, that awareness allows us to be mindful of our actions to compensate for our biases. Social scientists have studied bias extensively and have come up with an easy and free series of online tests regarding individual attitudes and bias.
These tests, which address bias in many different categories, provide an opportunity for individuals to access their own bias. The “quizzes” are part of the Implicit Association Test and can be found at implicit.harvard.edu.
Now that we know all have biases, and these biases can be difficult to identify, what can we do about them?
The social media app NextDoor confronted issues of racial bias on its neighborhood boards and came up with an approach that may provide a useful starting point. NextDoor began forcing users to consider a few questions before posting to ensure the issue really was one of crime and safety and not prejudice and bias.
The checklist before posting included reminders to focus on the specific behavior in question, to document facts regarding the situation with specificity, and to question closely whether behaviors were of concern solely because of the race of the person involved.
We encourage community associations to use this type of checklist to ensure that conduct violations are enforced rather than punishing individuals for their status. Focusing on conduct, not status, works effectively to make sure that we consistently and equally enforce the rules of the community without disparate treatment of certain classes.
A community association bias reminder checklist could look like this:
- Focus on behavior. What was the person doing that concerned you, and what provisions of the association’s governing documents does it violate? If the conduct does not violate a rule or restriction, then why is the association involved? The governing documents are your guide to fair and equal enforcement.
- Document the facts. Keep logs of alleged violations. Gather information and documents that relate to the violation. Consider unintended consequences if the complaint is so vague or general that an innocent person could be targeted.
- Check your bias. Do not assume there is a rule violation based on someone’s race or ethnicity. Racial profiling is expressly prohibited. Consider whether another’s experience and lifestyle, while different from your own, may be acceptable and allowable in your community.
CONCERNING CONSEQUENCES
The consequences of unchecked bias are significant and largely negative. Agencies at both the federal and state level regulate and investigate claims of bias within community associations, and those investigations are costly and rarely end well for the association in question
Department of Housing and Urban Development. Complaints involving discrimination under the federal Pair Housing Act may be handled by HUD and can be fled online.
“Anyone who has been or will be harmed by a discriminatory housing practice may make a claim. In addition to assisting with and prosecuting individual claims brought before it. information disclosed to HUD may be used by the U.S. Department of justice “in the filing of pattern and practice suits of housing discrimination” and other types of government litigation against people and entities which are found to engage in discriminatory housing practices.
- State fair housing agencies.
Some states have more robust civil rights and housing laws than the federal government. Some of them including California and Washington have state agencies that investigate (air housing claims submitted to HUI. These agencies investigate the allegation(s) of discrimination, which usually involves the community association responding to a lengthy and detailed questioonnairo regarding the claims and the association’s general processes and procedures.
State fair housing agencies operate on the baseline assumption that discrimination in some form is always present. Some agencies offer early mediation or conciliation to settle discrimination claims and whenever possible, communities should pursue these options. Consequences included in settlements often include training and procedural changes as well as fines or financial reimbursement to complaining residents. These consequences are much less significant than those imposed after agency hearing or civil trials.
Community associations should develop strategies to avoid being the subject of such an investigation. These strategies include having counsel review governing documents to eliminate biased language, adopting anti discrimination and and anti-harassment policies to discourage discrimination within the community, and consulting with counsel immediately when responding to a request for a reasonable accommodation.
- Harassment and discrimination.
In addition to agency actions, community associations can be liable for harassment and discrimination under the federal Fair Housing Act because they are “housing providers.” It seems obvious that associations should not engage in discriminatory or harassing conduct toward residents or employees, but case law suggests that many do not get the message. In associations, discriminatory conduct often takes the form of failing to accommodate a disability by allowing policy exceptions, such as maintaining and using assistance animals in developments with rules that prohibit or severely restrict pets. Not only do communities have an obligation to grant exceptions for service animals for physical disabilities (e.g., traditional guide dogs for people with impaired vision or hearing), they also must recognize assistance animals may be needed for emotional support.
Additionally, associations can be liable for harassment, which is a form of discrimination. Federal regulations also state that an association is “directly liable” for “failing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it.” This means that an association is legally obligated to act when someone in the common area harasses another person in a manner that could trigger a discrimination claim. An intense argument in the common area which involves sexual harassment or racially discriminatory language is no longer just a neighbor-to-neighbor dispute or a minor annoyance that can be disregarded.
This rule arose as an extension of HUD’s philosophy that all housing providers, including community associations, must provide an environment free of harassment and discrimination. The problem for community associations, of course, is that they do not have control over who lives in the community and how residents behave. Disputes in common areas between residents which contain elements of harassment have now become the community’s responsibility.
ELIMINATING BIAS
Community associations can take several steps to combat bias, particularly in their written documents.
- Restrictive covenants and redlining
There are still many documents that contain explicitly racist restrictive covenants. These outdated, offensive restrictions often take the form of identifying racial groups that are prohibited. Obviously, such overt racism is a violation of federal law. Despite some progress being made around fair housing laws and practice, the issue of what to do with these odious documents remains.
Encouragingly, in California and Texas, for example, discriminatory covenants are unenforceable as a matter of law and streamlined processes have been enacted by the legislatures to amend documents to eliminate them. Thirteen states have laws that aid in the removal of racially restrictive covenants.
CAI supports legislation that facilitates the removal of racially restrictive covenants from association governing documents without requiring a vote from homeowners as well as legislation that allows community association residents to petition a board to start the removal process. CAI maintains the issue as a state advocacy priority. Racist and gender-biased language. It is easy to fall into the trap of using forms for common, complex documents such as the covenants, conditions, and restrictions without periodically looking at the actual language used in the doc-uments. However, these documents must be updated to reflect current laws and the modern community values of nondiscrim-ination and elimination of bias.
One example of an unintentional use of a racist term is “grandfathering.” In our world, we have used this term to describe a restriction that is not applied to those who took title to property before a certain date. However, the origins of the term are troubling. It was used to describe some Southern states’ Tim Crow era laws that required voters to pass literacy tests or meet other voter qualifications; the laws exempted men who were the descendants of those who were eligible to vote before 1867. Obviously, all such exempted men wage white, and the practice was a transparent attempt to disenfranchise
Black voters.
To eliminate this racist term from our documents, we recommend finding other ways to describe the fact that a newly adopted restriction may not apply to all owners. One alternative is the term “legacy status.”
Another example of biased language arises out of the use of male pronouns universally, the awkward “he or she,” or the even more awkward but more accurate “he, she, or it.”
