In a transient place like Charlottesville, “Where are you from”? is a common question.

Small talk. Innocuous, right?

The ability to make and sustain small talk is a critical skill held by successful real estate agents – learning about clients and potential clients, asking questions, listening. But. What if innocuous conversation is (wrongly) perceived to be “discriminatory”?

I’ve written many times about and told my clients about the seemingly-absurd limitations imposed on real estate agents regarding fair housing laws. This morning I read the account of a real estate broker in Massachusetts who asked a prospective tenant where she was from – and ended up being fined $60,000. The woman who filed the complaint seemingly suffered emotional distress not merely from being asked the question, but also because she’d been denied an apartment by another real estate broker ostensibly because of her national origin, but also because this case went on apparently for nearly 6 years!

I asked friend and colleague Sarah Stelmok, Principal Nest broker in Fredericksburg and licensed Fair Housing expert for her thoughts. She agreed, with more context:

Besides this being mind-numbingly stupid, here’s the thing; if a customer/ client comes into your office and wants your services, but doesn’t speak English, we are required to get them an interpreter.  If I get someone an interpreter, it’s important for me to know where they are from.  Not all Spanish is Spanish.  Not all Chinese is Chinese.  And, what, exactly, was her distress over the question?  Fair Housing laws in VA clearly state that there has to be a limitation of housing choice.  It doesn’t sound like her choices were limited at all.  What if a Venezuelan agent asked the question?  Would it have been brought to case?  Yes, this is so stupid, it defies any type of common sense.  I feel really bad for this agent.

As a real estate agent, I can’t talk about schools, demographics of neighborhoods, and I know that I can’t ask someone their ethnic background. But it’s ok to analyze and interpret the housing preferences of different ethnicities? (This is a fascinating series by the way – What Home Buyers Really Want: Ethnic Preferences Parts I, II, III, IV.

These laws, while grounded in good intent, have become overreachingly insane speech codes that prevent reasonable people from exercising common sense. But I get it. This is the story I tell my clients that explains the absurd fair housing laws that prevent me from discussing whether there are kids in a particular neighborhood:

A couple of years ago a man called me from out of the blue saying that he was retiring and wanted to move home to Charlottesville. Ok, I can help. And he wanted to do so in a few months. Ok, I can help. And he wanted buyer representation. Ok, I can help. And he wanted an all-white neighborhood. At this point I hung up.

Discrimination is rarely so in-your-face, but reasonable people should be able to discern whether “where are you from?” is being asked in a discriminatory way.

Reasonable?

It is undisputed that Linder violated G. L. c. 151B, § 4(6)(c), and § 1.04(i) of the commission’s amended regulations by inquiring into Mrs. Stokel’s national origin in connection with her and her husband’s application for a new apartment on July 25, 2007. While completing the application process to rent an apartment, Linder asked, `Gladys, where are you from?’ to which Mrs. Stokel responded that she was from Venezuela. The Stokels believed they were discriminated against on the basis of Mrs. Stokel’s national origin and found Linder’s question to be insulting and upsetting. Despite the fact that Linder’s comment was found to have no discriminatory animus and did not result in discrimination, his inquiry itself is a per se violation of the statute and the regulation. Therefore, on appeal Linder only challenges the amount of damages awarded.

To my layman’s reading of the Decision, the harm seems to have come from the aggregate of the rental-search process, not the small talk question asked. But.

I’ll keep practicing carefully on the knife’s edge of fair housing, pointing out signs of children (literally, the “Watch out for Children throughout Neighborhood” signs) as well as others’ descriptions of neighborhoods.

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