Chapter 5 Discrimination
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CHAPTER 5 Discrimination
Sources of Antidiscrimination Laws
The Federal Fair Housing Acts
The 1866 Civil Rights Act
State and Local Antidiscrimination Laws
Types of Illegal Discrimination
Race, Color, or Religion
National Origin
Familial Status
Disability
Assistance Animals: Service Animals and Support Animals (Including Emotional Support Animals)
Sex and Sexual Harassment
Age
Marital Status
Sexual Orientation and Gender Identity/Expression
Source of Income
Arbitrary Discrimination
Valid Occupancy Limits
The Federal Occupancy Standard
Common State and Local Occupancy Standards
Legitimate Reasons for a More Restrictive Occupancy Policy
Managers and Discrimination
Unlawful Discrimination Complaints
When a Tenant Complains to a Fair Housing Agency
When a Tenant Sues in Federal or State Court
Penalties for Discrimination
Insurance Coverage in Discrimination Claims
Definition of "Bodily Injury"
Definition of "Personal Injury"
Definition of "Occurrence"
Review Insurance, and Act Wisely
FORMS IN THIS CHAPTER
Chapter 5 includes instructions for and a sample of the following form:
• Verification of Disabled Status
The purchase of this book includes a free downloadable and customizable copy of this form. See Appendix B for the download link and instructions.
So that all Americans would have the right to live where they chose, Congress and state legislatures passed laws prohibiting housing discrimination. Most notable of these are the federal Fair Housing Acts, which outlaw discrimination based on race or color, national origin, religion, sex, familial status, or disability. Many states and cities have laws making it illegal to discriminate based on additional factors, such as marital status or sexual orientation. Courts play a role, too, by interpreting and applying antidiscrimination laws.
The discussion in this chapter is intended not only to explain the law, but to steer you away from hidden discrimination traps. It explains:
• protected categories (such as race and religion) identified by federal and state laws prohibiting housing discrimination
• precautions to ensure that managers don't violate housing discrimination laws
• legal penalties for housing discrimination, including tenant lawsuits in state and federal courts, and
• whether your insurance policy is likely to cover the cost of defending a discrimination claim, and the cost of the judgment if you lose the case.
RELATED TOPIC
^—Chapter 1 also discusses how to avoid discrimination in advertising your property, accepting applications, and screening potential tenants, as well as how to document why you chose—or rejected—a particular tenant.
Sources of Antidiscrimination Laws
This section reviews the following sources of antidiscrimination laws:
• the federal Fair Housing Act of 1968 and the federal Fair Housing Amendments Act of 1988 (throughout this chapter, we refer to these laws collectively as the FHA)
• the 1866 Civil Rights Act, and
• state and local antidiscrimination laws.
The Federal Fair Housing Acts
The Fair Housing Act and Fair Housing Amendments Act (42 U.S.C. §§ 3601-3619, 3631), which are enforced by the U.S. Department of Housing and Urban Development (HUD), address many types of housing discrimination. They apply to all aspects of the landlord-tenant relationship throughout the United States.
Types of Discrimination Prohibited
The FHA prohibits discrimination on the following grounds (called protected categories):
• race or color or religion
• national origin
• familial status—includes families with children under the age of 18 and pregnant women and elderly persons
• disability or handicap, and
• sex.
Although the FHA uses certain words to describe illegal discrimination (such as "national origin"), HUD's and the courts' enforcement is not limited to the precise language used in the FHA. For instance, sexual harassment is a form of illegal discrimination on the basis of sex—even though the term "sexual harassment" is not used in the text of the law itself.
Aspects of Landlord-Tenant Relationship Covered
The FHA essentially prohibits landlords from taking any of the following actions:
• indicating a bias against or preference for any protected category in advertising
• falsely telling a member of a protected class that no rentals are available
• using more restrictive criteria to screen applicants in protected categories
• refusing to rent to people in certain protected groups
• before or during the tenancy, setting different terms, conditions, or privileges for rental of a dwelling unit, such as requiring larger deposits of some tenants, or adopting an inconsistent policy of responding to late rent payments
• during the tenancy, providing different housing services or facilities, such as making a community center or other common area available only to selected tenants, or
• terminating a tenancy because a tenant is a member of a protected category.
Landlords who turn away prospective tenants on the basis of race, ethnic background, or other group characteristics rarely come out and admit what they're doing. More often, a landlord falsely tells a person who's a member of a racial minority that no rentals are available, or that the prospective tenant's income and credit history aren't good enough.
From a legal point of view, this is a dangerous—and potentially expensive—tactic. Here's why: Fair housing groups (often backed by HUD) as well as the U.S. Department of Justice, are adept at uncovering these ruses by having "testers" apply to landlords for vacant housing. Typically, a tester who is African-American or Hispanic will fill out a rental application, listing certain occupational, income, and credit information. Then, a white tester will apply for the same housing, listing information very similar to—or sometimes not as good as—that given by the minority applicant.
A landlord who offers to rent to a white tester, and rejects—without valid reason—a minority applicant who has the same (or better) qualifications, is very likely to be found to be guilty of discrimination. Such incidents have resulted in many hefty lawsuit settlements. You can avoid the morass of legal liability for discrimination by adopting tenant screening policies that don't discriminate, and applying them evenhandedly.
An individual who suspects discrimination can file a complaint with HUD or a state or local fair housing agency, or sue in federal or state court. Guests of tenants can also sue landlords for housing discrimination under the FHA. (Lane v. Cole, 88 F.Supp.2d 402 (E.D. Pa., 2000).) (Landlords are always free, however, to impose reasonable restrictions on guest stays.)
CAUTION
Failure to stop a tenant from making discriminatory or harassing comments to another tenant might also get you into legal trouble. If one tenant reports that another is making ethnic or racial slurs or threatening violence because of their race, religion, ethnicity, or other characteristic that is considered a protected category, act promptly. If an oral warning doesn't stop the problem, you'll want to follow up with a warning letter (see Chapter 16 for advice on writing warning letters). Also, depending on the situation, you might be able to evict the offending tenant for violating your lease or rental agreement's "quiet enjoyment of the premises" clause. If you're reasonably worried about violence or the threat of violence, you'll need to act quickly and call the police. As with all tenant complaints, keep good records of conversations and correspondence related to the matter. Such documentation is necessary in the event you have to defend yourself against a tenant complaint that you acted illegally by failing to stop discrimination or harassment or that you illegally evicted the harassing tenant.
Exempt Property
The following types of property are exempt from the federal ban against discrimination in housing, as long as their rental is accomplished without the use of discriminatory advertising (42 U.S.C. §§ 3603(b), 3607):
• owner-occupied buildings with four or fewer units (this is called the "Mrs. Murphy" exemption)
• single-family housing, as long as the owner owns no more than three such houses at any one time
• certain types of housing operated by religious organizations and private clubs that limit occupancy to their own members, and
• with respect to age discrimination only, housing geared toward seniors. See "Seniors' Housing," below.
If you have a multifamily property and decide you'd like to rent exclusively to seniors, you can do so as long as you follow federal guidelines. You have two options:
1. 80% of the units must have at least one occupant who is 55 or older. You must make it known to the public, through your advertising, that you offer senior housing, and must verify applicants' ages. Once you've reached the 80% mark, you can set any other age restriction as long as it does not violate any state or local bans on age discrimination. For example, you could require the remaining 20% of tenants to be over 18 years of age, as long as no state or local law forbids such a policy.
OR:
2. All of your residents must be 62 or older. This includes spouses and adult children, but excludes caregivers and on-site employees.
CAUTION
State and local laws might cover federally exempt units. Even if your property is exempt under federal law, similar state or local anti-housing-discrimination laws might nevertheless cover your rental units. For example, owner-occupied buildings with four or fewer units are exempt under federal law, but not under California law.
For more information about the FHA, free copies of federal fair housing posters, and technical assistance on accessibility requirements, contact HUD's Office of Fair Housing and Equal Opportunity (FHEO). FHEO's website has a wealth of information at www. hud.gov/program_offices/fair_housing_equal_opp...
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