National Fair Housing Month 2022
April 2022 marks the 54th anniversary of the Fair Housing Act (FHA). During Fair Housing Month the Department of Housing and Urban Development (HUD), fair housing organizations, and fair housing advocates host fair housing activities in local communities to enhance public awareness of fair housing rights.
The federal Fair Housing Act (FHA) prohibits discrimination in the sale, rental and financing of housing on the basis of race, color, religion, sex, national origin, familial status and disability. In 2021 the Biden Administration issued Executive Order 13988 which directed all federal agencies to interpret protections against discrimination based on sex to include discrimination based on sexual orientation, gender identity, and gender expression. In the sale and rental of housing, no one may take any of the following actions based on the federal protected classes:
- Refuse to rent or sell housing
- Refuse to negotiate for housing
- Make housing unavailable
- Deny a dwelling
- Set different terms, conditions or privileges for sale or rental of a dwelling
- Provide different housing services or facilities
- Falsely deny that housing is available for inspection, sale, or rental
- For profit, persuade owners to sell or rent (blockbusting) or
- Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.
It is illegal for anyone to:
- Threaten, coerce, intimidate or interfere with anyone exercising a fair housing right or assisting others who exercise that right.
- Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.
Fair Housing Law exemptions
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.
Fair Housing Trends Data for 2020
The annual report released by the National Fair Housing Alliance (NFHA) provides an overview of housing discrimination complaint data by type of agency, protected class, and type of transaction. There were 28,712 fair housing complaints received in 2020. There were 15,664 complaints of discrimination against a person with a disability, or 54.56 percent of all housing complaints.
Disability
Federal nondiscrimination laws define a person with a disability to include any (1) individual with a physical or mental impairment that substantially limits one or more major life activities; (2) individual with a record of such impairment; or (3) individual who is regarded as having such an impairment.
Examples of disability may include mental or physical impairment such as hearing loss, restricted mobility, visual impairment, chronic mental illness, chronic alcoholism, AIDS, AIDS Related Complex, and mental retardation that substantially limits one or more major life activities.
Applicants and tenants with disabilities have rights and protections under the Fair Housing Act to ask for reasonable accommodations or reasonable modifications in rental housing.
Reasonable accommodation
Under the Fair Housing Act, a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling, including public and common use areas. Each accommodation request should be evaluated on a case-by-case basis. There must be an identifiable relationship, or nexus, between the request and the individual’s disability. A request may be denied if providing the accommodation is not reasonable – i.e., if it would impose an undue financial and administrative burden on the landlord or it would fundamentally alter the nature of the landlord’s operations.
A reasonable accommodation is a request to make an accommodation or change in rules, policies, practices, procedures or services to allow an individual with a disability an equal opportunity to use and enjoy a rental unit. Some common reasonable accommodation requests are for assistance animals or for a parking space close-in to the rental unit.
An accommodation must be requested by the disabled tenant or applicant. The accommodation request must be related to the tenant’s or applicant’s disability. A landlord does not have the obligation to ask applicants or tenants if they need reasonable accommodation or to determine what a reasonable accommodation might be.
A tenant or applicant may request a reasonable accommodation at any time, including at the time of application, at the time of lease signing, or after the tenant has moved into the rental unit.
Federal and state fair housing laws give tenants and applicants who have disabilities the right to request reasonable accommodations in landlord rules, policies, practices, or procedures if the changes make it possible for them to:
- Complete an application,
- Qualify for tenancy,
- Have full use and enjoyment of the unit, and
- Comply with rental or lease agreements.
Reasonable modification
A reasonable modification is a physical change to the public or common use areas of a building or a physical change to the structure of a dwelling unit. The most common examples of reasonable modification are requests to install grab bars in a bathroom or to install a wheelchair ramp.
A reasonable modification if approved would make the rental unit a more comfortable and safe home for the disabled tenant. All modifications are subject to the landlord’s approval. The landlord may ask for a description of the proposed modification and any necessary building permits.
If the modification will create a problem for the next tenant, the landlord may require the disabled tenant to restore the rental unit to its original condition at the end of the lease term.
A landlord cannot impose the expense of providing a reasonable accommodation on to the tenant, either directly or indirectly. The landlord assumes the costs for reasonable accommodations. The cost of a reasonable modification as approved would be borne by the tenant or applicant.
Hoarding
Hoarding is a recognized disability under the Fair Housing Act as Amended. The Fair Housing Amendments Act (FHAA) defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such impairment. The diagnostic criteria of hoarding include:
- Persistent difficulty discarding or parting with possessions regardless of actual value;
- A perceived need to save items and distress associated with discarding them;
- The accumulation of possessions that congest and clutter living areas and substantially compromises their intended use; and
- Clinically significant distress or impairment in social, occupational or other important areas of functioning (including maintaining an environment safe for oneself and others).
A hoarder tenant has the right to request a reasonable accommodation from the landlord to modify the landlord’s rental policies to minimize or eliminate the threat of hoarding in order to cure his default and bring his lease into compliance.
Harassment
In 2020, 1,071 complaints of harassment were reported, the highest number of harassment complaints reported since NFHA began collecting detailed harassment data in 2012.
Harassment is illegal under the Fair Housing Act, both in the provision of housing and in a housing setting. There has been a significant increase in the number of complaints alleging harassment on the basis of disability and sex. Harassment based on protected class may take the form of coercion, intimidation, threats, or interference.
The Fair Housing Act prohibits sex discrimination that impacts the terms or conditions of housing; is used as a basis for housing decisions; or otherwise has the purpose or effect of unreasonably interfering with housing rights, or creates an intimidating, hostile, or offensive environment.
Sexual harassment includes any unwanted sexual advance, request for sexual favors, or other unwelcome verbal or physical contact of a sexual nature. It also can take the form of offensive remarks, derogatory statements or expressions of a sexual nature, or other hostile behavior because of a person’s sex. Harassment can consist of oral, written, or other conduct and does not require physical contact between the harasser and victim. Harassment can be directed to any person, male or female, by someone of the same sex or the opposite sex. Sexual harassment does not have to be motivated by sexual desire in order to violate the Fair Housing Act. Sexual harassment could be motivated by hostility toward a particular sex, even if the harasser is the same sex.
HUD Anti-harassment Rule
HUD has issued” Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices under the Fair Housing Act”, (the Rule), as the standard to evaluate complaints of quid pro quo (“this for that”) harassment and hostile environment harassment under the Fair Housing Act.
Quid pro quo sexual harassment occurs when a landlord, property manager, employee, or agent conditions access to housing or retention of housing or housing-related services to an applicant or tenant’s submission to an unwelcome request or demand to engage in sexual conduct or sexual favors. .An unwelcome request or demand may constitute quid pro quo harassment even if a person acquiesces in the unwelcome request or demand.
Hostile environment sexual harassment refers to unwelcome sexual conduct that is sufficiently severe or pervasive as to interfere with the terms and conditions of tenancy or deprives the tenant of his right to use and enjoy the housing, resulting in an environment that is intimidating, hostile, offensive, or substantially less desirable.
Hostile environment harassment can also occur when a tenant is sexually harassed by another tenant and the harassment is not addressed by the housing provider.
State and Local Fair Housing Laws
State and local fair housing laws also provide protections from housing discrimination. State and local city and county fair housing laws often provide broader coverage for additional protected classes such as sexual preference, gender identity, occupation, source of income, Section 8 voucher participation, educational status, medical status, marital status, military service, political affiliation, or other classes as noted by statue. Fair housing compliance should always be to those fair housing laws providing the greatest protections against discrimination.
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