§ 6.2 Fair Housing and Civil Rights Standards

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 6.2 FAIR HOUSING AND CIVIL RIGHTS STANDARDS

§ 6.2-1 Federal Fair Housing Law

§ 6.2-1(a) Federal Fair Housing Act of 1968 and Fair Housing Amendments Act of 1988

The Fair Housing Amendments Act of 1988 (Pub L 100-430, 102 Stat 1619) (FHAA) and Title VIII of the Civil Rights Act of 1968 (Pub L 90-284, 82 Stat 73) together make up the Fair Housing Act (FHA) (42 USC §§ 3601-3631). The FHAA added familial status (including children under 18 living with parents or legal custodians) and people with disabilities as protected classes. FHAA §§ 5(b), 6(b).

§ 6.2-1(a)(1) Protected Classes

The FHA protects tenants from being discriminated against because of their race, color, religion, sex, physical and mental disability, family status, or national origin. 42 USC § 3604. It does not protect sexual orientation or gender identity, current drug users, or those with mental disabilities who are a direct threat to the health or safety of other individuals. 42 USC § 3602(h); 42 USC § 3604(f)(9).

CAVEAT: The Seventh Circuit has held that discrimination based on sex includes discrimination based on sexual orientation. Wetzel v. Glen St. Andrew Living Cmty., LLC, 901 F3d 856, 862 (2018) ("[O]ur ruling in Hively v. Ivy Tech Community College of Indiana, 853 F3d 339 (7th Cir 2017) (en banc), holding that discrimination based on sexual orientation qualifies as discrimination based on sex under Title VII [of the 1964 Civil Rights Act], applies with equal force under the FHA."). The law in the Eighth Circuit is the opposite. Walsh v. Friendship Vill. of S. Cnty., 352 F Supp 3d 920, 926 (ED Mo 2019). In the Tenth Circuit, courts have held that although claims based strictly on sexual-orientation discrimination are not covered, gender-stereotyping claims are viable. Smith v. Avanti, 249 F Supp 3d 1194, 1200-01 (D Colo 2017). On October 8, 2019, the United States Supreme Court heard argument on this issue in the context of employment discrimination. ISCOTUS Now, Title VII's Day at the Supreme Court, < http://blogs.kentlaw.iit.edu/iscotus/title-viis-day-at-the-supreme-court >. Its ruling will likely apply to the FHA as well. Joseph William Singer, Harvard Univ., Supreme Court to Decide Whether Discrimination on the Basis of Sexual Orientation and Gender Identity Are Forms of "Sex" Discrimination under Federal Laws, < https://scholar.harvard.edu/jsinger/blog/supreme-court-decide-whether-discrimination-basis-sexual-orientation-and-gender >.

Furthermore, housing providers that receive HUD funding or have HUD-insured loans must provide equal access without regard to a person's sexual orientation or gender identity. U.S. Dep't of Hous and Urban Dev, Housing Discrimination and Persons Identifying as LGBTQ, < www.hud.gov/program_offices/fair_housing_equal_opp/housing_discrimination_and_persons_identifying_lgbtq >; see Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity, 77 Fed Reg 5662 (Feb 3, 2012).

Additionally, in April 2019, a bill was introduced to amend the FHA to include sexual orientation and gender identity as protected classes. Fair and Equal Housing Act of 2019, HR 2402, 116th Cong (2019).

§ 6.2-1(a)(2) Transactions Covered

The FHA prohibits the following actions based on a person's race, color, religion, sex, familial status, or national origin:

(1) refusing to sell, rent, negotiate, or otherwise making housing unavailable;

(2) setting different terms, conditions, or privileges for sale or rental of a dwelling;

(3) providing different housing services or facilities;

(4) using advertisements, notices, or statements that indicate a preference, limitation, or discrimination;

(5) making false representations of availability;

(6) for profit, persuading owners to sell or rent (blockbusting);

(7) denying access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.

⁴2 USC § 3604; 42 USC § 3606; 24 CFR § 100.50(b)(7). In addition, it is illegal for anyone to threaten, coerce, intimidate, or interfere with anyone exercising a fair housing right. 24 CFR § 100.400.

§ 6.2-1(a)(2)(i) Home Purchasers

The FHA covers financing and related real estate transactions, and prohibits discrimination in the following forms:

(1) refusing to make a loan or provide information regarding loans;

(2) imposing different terms or conditions on a loan (such as different interest rates, points, or fees);

(3) discriminating in appraising property;

(4) refusing to purchase a loan or setting different terms or conditions for purchasing a loan.

42 USC §§ 3604-3605; 24 CFR §§ 100.110-100.135.

The law also covers access to brokerage services, including steering. 42 USC § 3606. The FHA covers realtors, lenders, advertising media, neighbors, and zoning and permit...