Fair Housing 101: How to Comply with Fair Housing Law

In honor of Fair Housing Month, the Coach is getting back to basics with an overview of fair housing law. There’s a lot going on in Washington, with many anticipating changes on the horizon for fair housing regulatory requirements adopted in the waning days of the previous administration. It’s too soon to tell how it will all shake out, but one thing’s for certain—it won’t change your obligation to comply with the Fair Housing Act (FHA), the federal law banning housing discrimination based on race, color, religion, national origin, sex, disability, and familial status. The law has been on the books for nearly 50 years—and it’s not going anywhere. No matter what happens in Washington, it’s still important for everyone working at the community—from the owner on down—to understand and abide by the FHA along with any applicable state or local fair housing laws. 

For this month’s lesson, the Coach reviews fair housing essentials, including what the law says, who must comply, and who is protected. The focus will be on federal law, but we’ll point out state and local variations that go beyond federal requirements. Then we’ll offer seven rules to help you understand your basic obligations to comply with fair housing law. To close out the lesson, you can take the Coach’s Quiz to see how much you’ve learned.

Coach’s Tip: The Coach is following developments in Washington and will report on any changes that may affect your fair housing obligations in the coming months. To stay on top of what’s happening, check your email for the Coach’s free monthly eAlerts and join our LinkedIn group at https://www.linkedin.com/groups/3086427.

WHAT DOES THE LAW SAY?

When we talk about fair housing law, we’re really talking about several laws—federal, state, and local—that, in one way or another, prohibit discrimination in rental housing and other housing-related transactions.

Chief among these is the FHA, the federal law banning housing discrimination based on seven factors: race, color, religion, national origin, sex, disability, and familial status. These seven factors are also known as “protected classes.”

The FHA applies nationwide to most public and private multifamily housing communities, though there are some exceptions for:

• Owner-occupied buildings with no more than four units;
• Single-family homes rented without a broker; and
• Housing operated by religious organizations or private clubs that limit occupancy to their members.

Who Must Comply with Fair Housing Law?

Everyone involved in the ownership, management, and operations of the community must comply with fair housing law. No matter who you are in the housing industry—an owner, site manager, building superintendent, maintenance worker, leasing agent, real estate broker, or bookkeeper—you are required to abide by fair housing requirements.

Community owners, property managers, individual employees, and outside contractors—along with real estate professionals and others—all could face liability for discriminatory practices or policies that violate fair housing law. To avoid fair housing violations, you should treat people fairly and equally, without regard to race, color, religion, national origin, sex, disability, and familial status.

Who Can File a Fair Housing Complaint?

Anyone injured by violation of fair housing law may file a claim. The law recognizes claims by prospects, applicants, and residents who suffer discrimination because they are members of a protected class—or because their household members, relatives, friends, or guests are members of a protected class.

In addition, a community’s own employees may pursue fair housing claims under the law’s anti-retaliation provisions. For example, an employee could sue for retaliation if she was fired for helping a resident pursue his rights under fair housing law or for cooperating with officials during a HUD investigation.

Government and private organizations also may file fair housing claims. Federal, state, and local enforcement agencies may initiate proceedings either in response to a complaint or on their own initiative. And private fair housing organizations may pursue fair housing claims—either on behalf of an individual alleging a discriminatory practice or on their own behalf under certain circumstances.

Seven Protected Classes Under Federal Law

The federal law—the FHA—bans discrimination based on race, color, religion, national origin, sex, disability, and familial status. Most are self-explanatory, but the law defines some of these terms in ways that make it more complicated than what it seems.

Race and color: Though closely related, race and color are two separate characteristics. In general, race refers to a person’s physical appearance, while color refers to a characteristic of a person’s race. Theoretically, fair housing claims may be based on race, color, or both, but in practice, fair housing claims based on color are rare.

National origin: In general, national origin refers to the country where people—or their ancestors—were born. This broad category protects people from discrimination because they or their ancestors came from another country, because they have a name or accent associated with an ethnic group, because they don’t speak English, or because they are married to or associated with people from a particular country.

Religion: The FHA doesn’t define “religion,” but it’s generally understood to protect people from discrimination based on their faith or religious beliefs. It’s unlawful to treat people differently because they are members of a religion or because they do—or do not—attend religious services. Though it clearly applies to members of established religious religions, the law may be broad enough to protect people who don’t belong to any particular religion—or don’t practice any religion at all.

Sex: As used in the FHA, sex refers to gender—that is, discrimination against either men or women because of their gender. Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex. Though most complaints for sexual harassment claims are filed by women, the law is broad enough to protect both men and women from sexual harassment, regardless of whether the perpetrator is a man or a woman.

Familial status: Though people generally understand this category to protect families with children, the FHA broadly defines familial status to cover households with one or more children who are under 18 years of age, where the child is living with:

• A parent;
• A person who has legal custody (such as a guardian); or
• Someone who has the written permission of the parent or legal custodian to care for the child.

Also included are pregnant women and those in the process of securing legal custody of a minor child, such as a foster or adoptive parent.

Coach’s Tip: Under an exception to the familial status rules, the FHA allows certain types of senior housing to lawfully exclude children. The law describes three types of communities that are eligible for the senior-housing exemption:

• 55-and-older communities: Communities that house at least one person who is 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates intent to house persons who are 55 or older;
• 62-and-older communities: Communities intended for, and occupied solely by, persons who are 62 or older; and
• Publicly funded senior housing communities: Housing communities where HUD has determined that the dwelling is specifically designed for and occupied by elderly persons under a federal, state, or local government program.

Disability: Technically, the law bans discrimination based on “handicap,” though the term “disability” now is more commonly used. Under the FHA, disability generally means a physical or mental impairment that substantially limits one or more major life activity.

The law protects not only individuals who have a disability, but also individuals with a record of such disability (such as medical history of such an impairment), or those who are regarded as having such a disability (such as someone who is believed to have a mental illness, but in fact does not have such an impairment). In general, individuals who currently use illegal drugs or pose a direct threat to the health and safety of others are not considered disabled under the FHA.

Three Additional Disability-Related Requirements

In addition to the general ban on discrimination against individuals with disabilities, the FHA also makes it unlawful to:

• Refuse to make reasonable accommodations in the rules, policies, practices, or services if necessary for the individual with a disability to fully use and enjoy the housing;
• Refuse to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing; or
• Fail to meet accessibility requirements in the design and construction of rental housing with four or more units that were first occupied after March 13, 1991:

• Accessible entrance on an accessible route;
• Accessible common and public use areas;
• Doors sufficiently wide to accommodate wheelchairs;
• Accessible routes into and through each dwelling;
• Light switches, electrical outlets, and thermostats in accessible location;
• Reinforcements in bathroom walls to accommodate grab bar installations; and
• Usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.

State and Local Law Protected Classes

Depending on where your community is located, you could be subject to state or local fair housing laws that go beyond what’s required under federal law. Across the country, many state and local laws ban discrimination based on additional protected classes, including:

Marital status: Nearly half the states prohibit housing discrimination based on marital status, which generally means being single, married, divorced, or widowed.

Age: Many state and local laws ban discrimination based on age, though there are significant differences in how the laws apply because of the way they define “age.”

Sexual orientation and gender identity: Many state and local fair housing laws ban discrimination based on sexual orientation; many, but not all, also cover gender identity or transgender status.

Source of income: Many state and local fair housing laws also cover lawful source of income to ban discrimination against people based on where they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance. Many, but not all, also cover housing subsidies, most notably Section 8 housing vouchers.

Military status: Some state and local laws offer some form of fair housing protection for military status. The laws generally prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.

Other protected classes: Some state and local laws ban discrimination based other factors, such as status as survivor of domestic violence, genetic information, HIV status, lawful occupation, political beliefs or affiliation, student status, alienage or citizenship, personal appearance, or arbitrary personal characteristics.

7 RULES FOR COMPLYING WITH FAIR HOUSING LAW

Rule #1: Don’t Deny Housing Based on Protected Class

The primary rule—and the one that most often leads to fair housing trouble—is that you can’t exclude people from living at your community because they—or someone associated with them—is a member of a protected class. Under the FHA, it’s unlawful to refuse to rent or to negotiate for a rental, or to deny or make housing unavailable, because of race, color, religion, national origin, sex, disability, or familial status.

These days, most people understand that it’s illegal to refuse to rent to members of racial and ethnic minorities, but these rules apply equally to all the protected classes, including families with children. Unless your community qualifies under the senior housing exemption, it’s unlawful to turn families with children away—or to apply an adults-only policy—to keep families with children from living there.

Just as it’s illegal to tell prospects that they can’t live at your community because of their race or skin color, the law bans subtle forms of discrimination, such as telling those same people that you don’t have any vacancies, when you actually do. Under the FHA, it’s also unlawful to falsely deny that housing is available for inspection or rental based on race, color, religion, sex, familial status, national origin, or disability.

Rule #2: Don’t Apply Different Application Standards or Procedures Based on Protected Class

The FHA bars unequal treatment in the application process, such as using different rental procedures or screening criteria, based on protected class. According to HUD regulations, it’s unlawful to use different qualification criteria or applications, such as income standards, application requirements, application fees, credit analysis, or rental approval procedures because of race, color, religion, national origin, sex, disability, and familial status.

Don’t apply different procedures based on protected class, for example, by requiring members of particular racial or ethnic groups to undergo criminal background checks, but not requiring white applicants to do the same. By the same token, you can’t apply different, stricter qualification standards, such as income or credit requirements, to some applicants, but not others, based on the race, religion, or any other protected characteristic.

Rule #3: Don’t Apply Different Terms or Conditions Based on Protected Class

Under the FHA, it’s unlawful to discriminate in the terms, conditions, or privileges associated with the rental based on race, color, religion, national origin, sex, disability, and familial status. Among other things, you can’t impose different lease provisions related to rental charges, security deposits, or other lease terms because the resident is a member of a protected class. Examples include requiring residents to pay higher fees, security deposits, or rental charges because they have a disability or have children in their household.

It’s also unlawful to treat people differently by failing or delaying maintenance or repairs because of race, color, religion, national origin, sex, disability, and familial status. For example, you can’t ignore maintenance requests from certain residents—or repeatedly push their requests to the bottom of the pile—because they are members of a particular racial or ethnic group.

For the same reason, you can’t limit or deny the use of community privileges, services, or facilities based on protected class. For example, some communities allow residents to use the community’s common room for family parties and similar functions. If you allow residents to reserve the room for various types of activities, then you must make it available to residents regardless of whether they want to use it for secular or religious purposes. And all residents must have equal opportunity to use the room, regardless of their religious or cultural background. If you permit a resident to hold a Christmas party in the room, for example, then you must allow a Jewish resident to use the room for a Hanukkah party.

Rule #4: Don’t Engage in Unlawful Steering

Be careful to avoid unlawful “steering”—that is, guiding, restricting, or otherwise attempting to influence a prospect’s housing choices based on race, color, religion, national origin, sex, disability, and familial status. HUD regulations cite four common examples of unlawful steering practices:

• Discouraging someone from seeing or renting a certain unit based on the prospect’s race, religion, or other protected characteristic, or because of the race, religion, or other protected characteristic of your residents;
• Discouraging someone from renting a certain unit because of a protected characteristic by exaggerating the drawbacks or not telling the person about desirable features of the unit or the community;
• Assigning someone to a particular section or floor of your community because of a protected characteristic; or
• Telling a prospect that she wouldn’t be comfortable or compatible with the residents of your community or the neighborhood because of her race, religion, or other protected characteristic.

Even if you have good intentions, you could unwittingly violate the steering provisions, for example, by assuming that a prospect who has newly arrived from a foreign country would be more comfortable to live near current residents who share the same cultural background. Unless the prospect says that’s where he wants to live, anything you do or say to limit his housing choices—by showing him only those vacancies or discouraging him from similar units located elsewhere your community—amounts to unlawful steering.

Rule #5: Don’t Run Afoul of the FHA’s Disability Rules

Get to know the FHA’s rules banning disability discrimination. These days, more than half of all fair housing complaints filed with HUD and its partner agencies are for disability discrimination. Last year alone, there were more than 4,900 disability-related complaints, or more than 58 percent of all fair housing complaints.

It’s unlawful to exclude or otherwise discriminate against individuals with disabilities, regardless of whether it’s related to a physical or mental impairment. Under fair housing law, “disability” means a physical or mental impairment that substantially limits one or more major life activities. The list of impairments broadly includes a wide range of physical and mental conditions, many of which are not obvious or apparent.

Remember, there are strict guidelines on when you may—and may not—ask disability-related questions. You may not ask questions to determine whether an applicant (or someone in his household or associated with him) has a disability. Likewise, you may not ask questions about the nature or severity of a disability.

Be careful how you handle requests for reasonable accommodations or modifications. Requests may be made at any time before or during the tenancy. You can’t turn away prospects because they make an accommodation or modification request; nor can you refuse to consider such a request from a current resident just because he didn’t ask for it when he first moved in.

In general, the rules require communities to grant requests for reasonable accommodations that are both reasonable and necessary to allow an individual with a disability to fully use and enjoy the community. The law also requires communities to pay the costs associated with accommodation if it doesn’t pose an undue financial and administrative burden on the community. You can’t pass the costs along by requiring individuals with disabilities to pay extra fees or deposits as a condition of receiving a requested accommodation.

One of the most common—and challenging—requests are those for assistance animals. The important thing to remember is that assistance animals are not considered pets under fair housing law. Just as it would be unlawful to refuse access to an aide who provides needed assistance to a resident with a disability, it’s unlawful to ban animals that provide the resident with similar assistance. Nor can you charge an extra fee or pet deposit as a condition of granting a reasonable accommodation for an assistance animal.

Less common, but no less important, are requests for reasonable modifications. The law requires communities to consider requests to allow reasonable modifications to the unit or common use areas, at the applicant or resident’s expense, if necessary for the individual with a disability to fully use the housing. Reasonable modifications are structural changes to interiors and exteriors of units and to common and public use areas, such as lobbies, main entrances, and parking lots. In general, residents are responsible for paying the cost of the reasonable modifications.

Rule #6: Abide by Rules Banning Discriminatory Statements

Be mindful of what you say—and how you say it—in communications with prospects, applicants, and residents—and in your advertising.

Under the FHA, it’s unlawful to advertise or make any statement that indicates a limitation or preference based on race, color, religion, national origin, sex, disability, or familial status. The rule banning discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the FHA, according to HUD.

The rules apply not only to verbal and written statements, but also to all advertising media, including newspapers, magazines, television, radio, and the Internet. Fair housing experts believe it extends to emails, online advertising, community websites—even social media.

Liability for making discriminatory statements does not require proof of discriminatory intent. Instead, the focus is on whether the statement would suggest a preference to an “ordinary reader or listener.”

Rule #7: Watch Out for Potential Retaliation Claims

Fair housing law prohibits housing discrimination—and retaliation against anyone who stands up against it. In addition to outlawing discriminatory rental practices, the FHA bans retaliation by making it unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised a fair housing right—or anyone who assisted others who exercise that right.

Fair housing complaints often include both types of claims—usually because of the timing. If you take an adverse action, such as starting eviction proceedings, against a resident soon after he files a discrimination complaint, then it gives the impression that the two events are connected. Because discrimination and retaliation are separate violations under fair housing law, you could be held accountable for retaliation if you take adverse action against a resident solely because he filed a discrimination complaint against you—even if the discrimination claim is ultimately dismissed.

Watch out for potential retaliation claims when dealing with requests for reasonable accommodations or modifications by or on behalf of individuals with disabilities. The law protects people from retaliation for exercising their right to make disability-related requests.

The FHA’s ban on retaliation applies not only to residents who assert their fair housing rights, but also to employees and neighbors who stick up for them or assist them in pursuing their fair housing rights.

• Fair Housing Act: 42 USC §3601 et seq.