The Federal Fair Housing Act: An Overview

1. The Federal Fair Housing Act:An Overview ProtectedClasses BuildingsCoveredby the FHA Prohibited Practices Exemptions from theFHA Lawyers' Committee for Civil Rights Under Law Mid-South Delta LISC Conference October 19, 2005

2. Why Practice Fair Housing? • 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

3. Protected Classes The federal Fair Housing Act prohibits discrimination in housing based on:

4. Protected Classes cont. • Race, Color, and National Origin • Race: • Most claims under the FHA are brought byracial minorities claiming racial discrimination. The FHA also applies to “reverse discrimination.” • National Origin: • 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.

5. Protected Classes cont. • Sex Discrimination • 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 • 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).

6. Protected Classes cont. • Handicap • “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.

7. Protected Classes cont. • Handicaps are broadly defined and can include mental disabilities. • For example, it is a violation of the FHA to discriminate against an HIV-positive person or a former addict based on a landlord’s perception that such a tenant is disabled. • 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. • 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).

8. Protected Classes cont. • Disability and Reasonable Accommodations • 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). • 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. • Examples include widening doorways or installing grab bars in the bathrooms.

9. Protected Classes cont. • 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).

10. Protected Classes cont. • Familial Status • 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.

11. Covered Property • 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:

12. Discriminatory Housing Practices • Traditional Discrimination • 3604(a) makes it illegal to discriminate based on race, nationality, color, sex, familial status, handicap, or religion by: • 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). • Examples include: • 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).

13. Discriminatory Housing Practices cont. • “Otherwise Making Unavailable” • Includes: • 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).

14. Discriminatory Housing Practices cont. • Discriminatory Terms and Conditions • 3604(b) makes it illegal to discriminate in the terms, conditions, or privileges of sale or rental, or in services and facilities. • 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.

15. Discriminatory Housing Practices cont. • Discriminatory Advertising, Notices, or Statements • 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).

16. Discriminatory Housing Practices cont. • False Representations of Unavailability • 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).

17. Discriminatory Housing Practices cont. • Who is liable? • 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).

18. Discriminatory Housing Practices cont. • Common signs of discrimination • “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.

19. Exemptions from the FHA • Single family home exception • Single family homes sold or rented by the owner without the use of any real estate broker or discriminatory advertising • These dwellings are NOT exempt from the prohibition on discriminatory advertising or discriminatory lending. • The “Mrs. Murphy” exception • Rental dwellings with four or less units, when one unit is occupied by the owner • These dwellings are NOT exempt from the prohibition on discriminatory advertising or discriminatory lending.

20. Exemptions from the FHA cont. • Housing for older persons • Can discriminate based on family status • This exemption applies to: • 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.