Transcript Fair Housing Act

The Federal Fair Housing Act:
An Overview
Protected Classes
 Buildings Covered
by the FHA
 Prohibited Practices
 Exemptions from
the FHA
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Lawyers' Committee for Civil Rights Under Law
Mid-South Delta LISC Conference
October 19, 2005
Why Practice Fair Housing?
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To avoid liability
It’s the right thing to do
Pre-judging people based on race, religion,
source of income, or children hurts all of us
It is good business: Diversity is the future
Protected Classes
The federal Fair Housing Act prohibits
discrimination in housing based on:
Race
National
Color
Origin
Sex
Handicap
Religion
Familial
Status
Protected Classes cont.
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Race, Color, and National Origin
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Race:
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National Origin:
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Most claims under the FHA are brought by racial minorities claiming
racial discrimination. The FHA also applies to “reverse discrimination.”
National origin refers to the country where a person was born, or, more
broadly, the country from which her ancestors came. See Espinoza v.
Farah Manufacturing Co., 414 U.S. 86 (1973).
These claims are generally brought by dark-skinned plaintiffs, such as
those of African, Hispanic, or Middle Eastern descent, or Native
Americans.
Distinguishing between these categories is not important for a
successful FHA claim.
Protected Classes cont.
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Sex Discrimination
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Developers, owners, apartment managers, and other
housing providers must lease, sell, and negotiate with
women on the same basis as with similarly-situated men.
See U.S. v. Reece, 457 F. Supp. 43 (D. Mont. 1978).
Sexual Harassment
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Sexual harassment claims under the FHA are modeled after
Title VII employment discrimination claims. Actions creating
a “hostile environment” through sexual harassment or
demanding “quid pro quo” are actionable.
For example, evicting a tenant based on her refusal to poise
for nude pictures is illegal. Shellhammer v. Lewallen, 770
F.2d 167 (6th Cir. 1985).
Protected Classes cont.
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Handicap
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“Handicap” is defined as:
 A physical or mental impairment which
substantially limits one or more of a person’s
major life activities and a record of such an
impairment OR
 Being regarded as having such an impairment
Landlords that perceive a potential tenant as
handicapped and consequently discriminate
against that person are in violation of the FHA.
Protected Classes cont.
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Handicaps are broadly defined and can include mental
disabilities.
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For example, it is a violation of the FHA to discriminate against an HIVpositive person or a former addict based on a landlord’s perception that
such a tenant is disabled.
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See Neithamer v. Brenneman Property Services, Inc., 81 F. Supp. 2d 1 (D.D.C.
1999); U.S. v. Southern Management Corp., 955 F.2d 914 (4th Cir. 1992).
Mental illnesses (such as schizophrenia and depression), age-related
maladies (such as dementia and Alzheimer’s), and emotional problems
(such as those suffered by abused or neglected children) are considered
disabilities under the FHA.
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See Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039 (6th Cir. 2001);
Bryant Woods Inn, Inc. v. Howard County, MD., 124 F.3d 597 (4th Cir. 1997);
Keys Youth Services, Inc. v. City of Olathe, Kan., 248 F.3d 1267 (10th Cir. 2001).
Protected Classes cont.
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Disability and Reasonable Accommodations
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A seller or landlord must make reasonable
accommodations in rules, policies, practices, or services
to give the tenant an equal opportunity to use and enjoy
the unit. See 42 U.S.C. § 3604(f)(3)(B).
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Examples include assigning handicapped parking spaces or
allowing service animals.
A seller or landlord must allow disabled tenants to make
reasonable modifications to their units if the modifications
will give the tenant an equal opportunity to use and enjoy
the unit.
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Examples include widening doorways or installing grab bars
in the bathrooms.
Protected Classes cont.
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Religion
– FHA violations based on religion are relatively
rare, but could include discrimination against
groups such as Muslims and Jews.
– In LeBlanc-Sternberg v. Fletcher, the Second
Circuit struck down zoning ordinances in a newly
formed municipality for purposely excluding
Hasidic Jews. 67 F.3d 412 (2d. Cir. 1995).
Protected Classes cont.
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Familial Status
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Landlords, subdivision developers, etc. may not
discriminate against families with children or pregnant
tenants. Villegas v. Sandy Farms, Inc., 929 F. Supp. 1324
(D. Or. 1996).
Higher security deposits, higher rental charges, or limited
access to recreational areas for families with children are
illegal. See HUD v. Colclasure, Fair Housing-Fair Lending
Rptr., ¶ 25, 134, at 26, 109 (HUD ALJ 1998).
Some communities designated for the elderly (over 55) are
allowed to be exempted from this category, but must meet
strict guidelines.
Covered Property
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The FHA generally applies to any “dwelling,” which includes
any building occupied as, or designed for occupancy as a
residence for one or more families.
 It also includes any vacant land offered for sale or lease for
the construction of a residential building.
“Dwelling” has been broadly read to cover:
Vacation
homes/resorts
Residential
Migrant
housing
Dormitories
Nursing
homes
Group
Homeless
Shelters (with
extended occupancy)
hotels
homes
Discriminatory Housing Practices
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Traditional Discrimination
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3604(a) makes it illegal to discriminate based on race, nationality,
color, sex, familial status, handicap, or religion by:
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Refusing to sell or rent after a bona fide offer is made
Refusing to negotiate for a sale or rental of a dwelling
Or otherwise making unavailable a dwelling
“Avoidance techniques” are considered illegal under 3604(a).
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Examples include:
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Creating more difficult application procedures that discourage or impede
protected classes of tenants. See United States v. Youritan Construction
Company, 370 F. Supp. 643, 648 (N.D. Call. 1973).
Delaying an application from a member of a protected class when a rental
property is available. See Davis v. Mansards, 597 F. Supp. 334 (N.D. Ind.
1984).
Discriminatory Housing Practices cont.
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“Otherwise Making Unavailable”
Includes:
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Exclusionary zoning
Steering
Red-lining and discriminatory/predatory lending
Delay tactics
Burdensome application procedures
Harassment or other conditions which make housing unavailable
This phrase indicates that the 3604(a) prohibition on
discriminatory housing practices is “as broad as Congress
could have made it.” United States v. Housing Authority of City
of Chickasaw, 504 F. Supp. 716, 726 (S.D. Ala. 1980).
Discriminatory Housing Practices cont.
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Discriminatory Terms and Conditions
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3604(b) makes it illegal to discriminate in the terms,
conditions, or privileges of sale or rental, or in services and
facilities.
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This provision applies even if the landlord or developer rents or
sells to members of the protected class.
According to HUD, discriminatory rental charges, security
deposits, and lease terms violate 3604(b).
This provision also applies to disparate standards for the use
of pools, parking, or laundry facilities.
For example, in Bland v. Marine Drive Apartments, 2001 WL
640696 (W.D.N.Y. 2001), the landlord violated 3604(b) by
putting black applicants on the waiting list while letting white
applicants rent the available apartments.
Discriminatory Housing Practices cont.
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Discriminatory Advertising, Notices, or Statements
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3604(c) prohibits discrimination through advertising or notices
Liability is based on how the ordinary reader would interpret the
advertisement. As shown in United States v. Hunter, 459 F.2d 205
(4th Cir. 1972), implicit as well as explicit discriminatory references
are illegal.
Advertising that selectively uses media, locations, logos, or human
models to convey an discriminatory preference or limitation
violates 3406(c). See NAACP v. ITT Community Development
Corp., 399 F. Supp. 366 (D.D.C. 1975).
Statements by real estate agents or landlords indicating a
discriminatory preference also violate 3406(c). See United States
v. L&H Land Corp., Inc., 407 F. Supp. 576 (S.D. Fla. 1976).
Discriminatory Housing Practices cont.
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False Representations of Unavailability
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3604(d) prohibits false representations of unavailability.
The Supreme Court, in Havens Realty Corp. v. Coleman,
stated that 3604(d) guarantees the right to truthful
information about housing availability. 455 U.S. 363 (1982).
A real estate agent who doesn’t show available properties to
a minority client that she has shown to a white client would
be in violation of 3604(d). See McDonald v. Verble 622 F.2d
1227 (6th Cir. 1980).
Discriminatory Housing Practices cont.
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Who is liable?
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Under traditional agency principles, landlords, developers,
subdivision owners, and real estate corporations can be liable for
the actions of their employees, property managers, or real estate
agents. Meyer v. Holley, 537 U.S. 280 (2003).
The actions of agents within the scope of their employment can
create liability for a principal.
The duty not to discriminate is non-delegable, and a principal may
be held liable even if the agent was specifically instructed not to
discriminate.
For example, in Walker v. Crigler, the owner gave specific
instructions to the property manager not to discriminate, but was
still held liable for the property managers discriminatory actions.
976 F.2d 900, 903-05 (4th Cir. 1992).
Discriminatory Housing Practices cont.
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Common signs of discrimination
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“I’m sorry, someone just looked at the apartment and left a
deposit after you called.”
“The apartment has lead paint and we can’t rent to children
under six.”
“You might be happier at a place we have across town.”
“It’s not big enough for children.”
Advertising says “students and professionals only.”
The apartment continues to be advertised.
Exemptions from the FHA
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Single family home exception
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Single family homes sold or rented by the owner without the
use of any real estate broker or discriminatory advertising
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These dwellings are NOT exempt from the prohibition on
discriminatory advertising or discriminatory lending.
The “Mrs. Murphy” exception
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Rental dwellings with four or less units, when one unit is
occupied by the owner
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These dwellings are NOT exempt from the prohibition on
discriminatory advertising or discriminatory lending.
Exemptions from the FHA cont.
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Housing for older persons
– Can discriminate based on family status
– This exemption applies to:
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Elderly housing provided through a federal or state
program
Housing intended for and solely occupied by a person
62 or older
Housing intended for occupancy by at least one person
per unit over 55. 80% of housing in these exempt
complexes must be occupied by at least one person
over 55.