Housing Discrimination
The annual Fair Housing Trends Report prepared by National Fair Housing Alliance collects and analyzes data on the seven federally protected classes and several of the classes protected by state and local fair housing laws, such as source of income and sexual orientation among others.
The analysis of 28,843 reported complaints of housing discrimination in 2017 returned important data points – housing discrimination is most prevalent in rental housing markets and the three most common types of discrimination complaints were based on disability, race, and familial status.
More than half of the number of complaints received alleged disability discrimination. The large number of disability complaints could be attributed in part to the additional protections afforded persons with disabilities under fair housing laws – i.e., reasonable accommodations, reasonable modification, and accessible design and construction.
Complaints must specify the discriminatory actions that allegedly violated fair housing laws. Most common actions cited in complaints were discriminatory terms, conditions, privileges, services, and facilities in the rental or sale of property. Failure to make reasonable accommodation, refusal to rent, coercion, intimidation, threat, or interference with exercising fair housing rights, and housing advertising that indicated discrimination, limitation, or preference were also listed as common actions of alleged discrimination.
Fair housing reports analyze the data collected from the number of discrimination complaints reported. The number of complaints received may represent only a small fraction of incidences of fair housing discrimination. Oftentimes housing discrimination is unreported, under-reported, or undetected. Discrimination in housing can be difficult to identify, prove, and document. Those individuals that experience housing discrimination are often reluctant to report discrimination fearing retaliation by the housing provider or his employee or agent. There can be the perception on the applicant’s or tenant’s part that nothing will be done or can be done to remedy the situation.
Fair Housing Act
Housing discrimination prevents individuals from exercising their rights to housing of their choice. Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), as amended, prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on the protected classes of race, color, religion, sex, national origin, disability or familial status (including individuals or families with children under the age of 18 and pregnant women).
It is unlawful to coerce, threaten, intimidate, or interfere with anyone for exercising or enjoying their fair housing rights or encouraging or aiding others in the exercise or enjoyment of their fair housing rights.
Housing Exceptions
The Fair Housing Act covers most housing. In very limited circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family houses sold or rented by the owner without the use of an agent, and housing operated by religious organizations and private clubs that limit occupancy to members. However state and local fair housing laws may be applicable to federally exempt housing.
State and Local Fair Housing Laws
Many states’ and local jurisdictions’ fair housing laws grant greater protections from discrimination. As an example, state fair housing laws may make it illegal to discriminate in housing transactions against persons 40 years of age or older. Some state and local laws prohibit discrimination on the basis of gender identity, gender expression, sexual orientation, marital status, military service, or other protected characteristic.
Housing Discrimination
Rental housing discrimination takes on many forms and appearances. Discrimination can occur during any phase of rental operations from marketing a vacancy, installation of a tenant, to the ensuing landlord-tenant relationship. Under the Fair Housing Act, a landlord may not:
- advertise or make any statement that indicates a limitation or preference based on race, religion, or any other protected category,
- falsely deny that a rental unit is available,
- set more restrictive standards for selecting tenants or refuse to rent to members of certain groups,
- before or during the tenancy, set different terms, conditions, or privileges for rental of a dwelling unit, such as requiring larger deposits of some tenants or adopting an inconsistent policy of responding to late rent payments, or
- terminate a tenancy for a discriminatory reason.
HUD Equal Access Rule
Housing programs funded by the U. S. Department of Housing and Urban Development (HUD) must comply with the Equal Access Rule, which prohibits discrimination on the basis of gender identity, marital status, and sexual orientation.
HUD Rules and Guidance
HUD publishes rules and guidances to address various important fair housing issues. As examples:
HUD Disparate Impact Rule
The Discriminatory Effects Standard provides for consistency of enforcement of the Fair Housing Act on a nationwide basis and formalizes a burden-shifting test for determining whether a given practice has an unjustified discriminatory effect, leading to liability under the Act.
Under a three-part burden shifting test, the charging party first bears the burden of proving its prima facie case that a practice results in, or would predictably result in, a discriminatory effect on the basis of a protected characteristic. If the charging party proves a prima facie case, the burden of proof shifts to the respondent to prove that the challenged practice is necessary to achieve one or more of its substantial, legitimate, nondiscriminatory interests. If the respondent satisfies this burden, then the charging party may still establish liability by proving that the substantial, legitimate, nondiscriminatory interest could be served by a practice that has a less discriminatory effect.
HUD Harassment Rule
HUD has formalized standards for use in investigations, administrative adjudications, and cases brought in federal and state courts under the Fair Housing Act involving allegations of harassment on the basis of race, color, religion, national origin, sex, familial status or disability.
The Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act (the Rule) specifies how HUD evaluates complaints of quid pro quo (“this for that”)harassment and hostile environment harassment under the Fair Housing Act.
The Rule clarifies when housing providers and other entities or individuals covered by the Fair Housing Act may be held directly or vicariously liable under the Act for illegal harassment as well as for other discriminatory housing practices that violate the Act.
HUD Guidances
Reasonable Accommodations under the Fair Housing Act
HUD and the Department of Justice (DOJ) published the Joint Statement of the Department of Housing and Urban Development and Department of Justice: Reasonable Accommodations under the Fair Housing Act. The Fair Housing Act prohibits the refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.
Service Animals and Assistance Animals
The Notice on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs discusses how the Fair Housing Act and the Americans with Disabilities Act (ADA) intersect regarding the use of service or assistance animals by persons with disabilities.
HUD’s notice explains housing providers’ obligations under the Fair Housing Act, including the requirement to provide reasonable accommodations to people with disabilities who require assistance animals. Pet restrictions cannot be used to deny or limit housing to people with disabilities who require the use of an assistance animal because of their disability. Housing providers must grant reasonable accommodations in such instances, in accordance with the law.
Use of Criminal History in Housing Decisions
HUD has published guidance concerning how the Fair Housing Act applies to the use of criminal history by landlords in making housing decisions.
The guidance addresses how the discriminatory effects and disparate treatment methods of proof apply in Fair Housing Act cases in which a landlord justifies an adverse housing action, such as a refusal to rent to an individual based on the individual’s criminal history.
While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters of one race or national origin over another (i.e., discriminatory effects liability).
Intentional discrimination in violation of the Act occurs if a landlord treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).
The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin or other protected characteristics. While the Act does not prohibit a landlord from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related restrictions or prohibitions are likely to lack a legally sufficient justification. Thus,” a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act.”
Limited English Proficiency
HUD has issued Limited English Proficiency (LEP) guidance that addresses how the Fair Housing Act applies to claims of housing discrimination brought by people with limited English proficiency. Limited English Proficiency is the limited ability to read, write, speak or understand English.
Certain policies or practices of housing providers could be regarded as fair housing discrimination against protected classes when a person with limited English proficiency applies for tenancy. A landlord’s policy or practice that contains language-related housing restrictions or that result in a language-based adverse action decision is a violation of the Fair Housing Act.
People with limited English proficiency are not a protected class under the Fair Housing Act. However, national origin, which is a protected class, has been closely linked to the ability to communicate proficiently in English. The guidance points to statistical data supporting the nexus between limited English proficiency and national origin.
Domestic Violence
HUD’s Guidance on Application of Fair Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence, Other Crime Victims, and Others Who Require Police or Emergency Services is intended to inform state and local governments, as well as private and public housing providers, as to how HUD will assess nuisance or crime-free housing ordinances, policies, or practices alleged to be discriminatory under the Fair Housing Act.
The Nuisance Ordinance Guidance addresses ordinances that penalize residents for a small number of 911 calls to police, even when a person is in need of protection from domestic violence or another crime. Nuisance ordinances often require or allow landlords to evict residents in such circumstances, thereby discouraging victims from reporting domestic abuse or other crimes and obtaining the emergency police and medical assistance they need.
Landlord Right to Legally Choose Tenants
Fair housing laws and HUD rules and guidances do not take away the rights of the landlord to operate his business in a manner compliant with applicable law and business necessity. Denying an application because the applicant did not qualify under the standard rental criteria is permissible while a refusal to rent because of an applicant’s protected class status is illegal housing discrimination.
Landlords do not have to accept unqualified applicants, uncooperative applicants, or applicants who give false or misleading information. Landlords can reject and should reject those applicants who pose a direct threat to property and the welfare of others.