Mending the safety net through source of income protections: the nexus between antidiscrimination and social welfare law.

• Author: Flagg, Kinara

INTRODUCTION

Nina is an African American woman and a single mother with five children living in New York City. (1) One of her children is severely disabled. Last year, after a long wait, Nina became eligible for a housing voucher through the federal Housing Choice Voucher Program (also known as Section 8). In spite of the promise of rental assistance, Nina and her family have repeatedly been denied housing. The landlords and real estate agents that sent her away never mentioned her race, the fact that she has children, or that one of her daughters is disabled. If they had, Nina would have a clear legal claim under the Fair Housing Act (FHA or "the Act"). (2) Instead, landlords and agents continue to deny Nina housing on account of her housing voucher, claiming that the property owner cannot or does not accept those types of vouchers and that the owner will only accept people with "real jobs" as tenants. This treatment may not seem as egregious as having a door slammed in one's face on account of one's race or being told by a real estate agent that there are more "people like her" nearby in a different neighborhood. However, Nina and her children are being discriminated against, and Nina's ability to choose where to live has been interfered with and frustrated.

What Nina and her family have experienced, and what many others like her experience each day, is known as source of income discrimination (SOI discrimination). In spite of the fact that her income is lawfully obtained through a federal voucher program that has operated since the 1970s, landlords and real estate agents fail to make rental units available to prospective tenants like Nina because of how she plans to pay her rent. The FHA protects against discrimination on the basis of race, color, national origin, religion, sex, familial status and disability in the sale or rental of properties. (3) However, it does not include a protection against SOI discrimination, discrimination that is often conducted so openly that it may be difficult to view it at first as a form of discrimination, but like other forms of discrimination, SOI discrimination is a significant obstacle to minorities and people with disabilities searching for housing. While landlords may openly refuse prospective tenants based on their status as voucher holders or recipients of public assistance, denial in such cases may be a thinly veiled means of rejecting tenants on the basis of race, familial status or disability.

Recognizing that SOI discrimination contravenes the express goals of fair housing, many states and municipalities have added SOI discrimination provisions to fair housing statutes and ordinances. In 2008 the National Commission on Fair Housing and Equal Opportunity issued a report recommending that Congress amend the FHA to include a provision prohibiting discrimination in sales or rentals based on source of income, essentially adding another protected class to those groups already covered by the Fair Housing Act. (4)

This Article considers the issue of SOI discrimination, discussing its effects in practice as well as its status in laws, and recommends that SOI discrimination be addressed through a change to federal law. (5) In order to better understand the consequences of such an amendment, this Article argues that the addition of a source of income protection provision requires engagement with both the antidiscrimination model and the social welfare paradigm. The addition of a source of income provision would be compatible with both social welfare and antidiscrimination laws.

In Part I, this Article presents the problem of SOI discrimination and argues that SOI discrimination in housing should be outlawed by the federal FHA. Part I specifically focuses on the populations most affected by SOI discrimination, and explores the various gaps in fair housing laws at both the state and federal level. Part II presents two common theories of addressing inequality: the antidiscrimination and social welfare paradigms, approaches that are frequently seen as incompatible modes of redressing social inequalities. Part III examines how the addition of SOI protections to the FHA implicates each of these paradigms separately, and goes on to consider these two approaches as coextensive. Part IV considers means outside of outright amendment to the FHA to combat SOI discrimination, specifically focusing on possible changes to standing social welfare and antidiscrimination laws. Weighing potential alternatives, the Article concludes that amendment to the FHA is the best solution to SOI discrimination.

Definition and Description of Source of Income Discrimination

Instances of SOI discrimination similar to Nina's are increasingly common. Fair housing advocates report that although housing discrimination on the basis of race continues to occur, it is more subtle than it was years ago, when African American homebuyers and renters reported being told directly they were not welcome in certain buildings or housing developments because of their race. (6) Discrimination against a tenant on the basis of her disability or her source of income, however, may be much more blatant. (7)

Source of income discrimination occurs when a landlord or agent refuses to rent an available unit to someone because it is known or believed that the renter intends to pay rent, in whole or in part, with money derived from one or more welfare programs or some private income support arrangements. Public sources of income that are targeted vary, but include everything from Social Security and unemployment compensation to food stamps, Temporary Assistance for Needy Families (TANF), and Section 8 housing participation; private sources include alimony and child support. (8) Section 8 is perhaps the most well known of these federal income support programs: each year, over two million Section 8 vouchers are distributed to qualifying individuals and families. (9) However, the Department of Housing and Urban Development (HUD) reports that in spite of the high number of vouchers distributed, approximately one-third of vouchers are returned unused. (10) Low-income families and individuals who are denied housing on account of their vouchers are not left with many housing opportunities.

Though the Section 8 voucher program plays an integral role in subsidizing housing for many Americans, there are other federal income support programs that are also widely rejected by landlords and real estate agents. Income based on disability is the most common form of supplemental income in the United States. In comparison with the two million Section 8 vouchers distributed annually, nearly 8.5 million people are beneficiaries of Social Security Disability Insurance (SSDI). (11) The Social Security Administration reports that one-seventh of all SSDI beneficiaries also receive Supplemental Security Income (SSI) payments. (12) In addition, sources of income subject to discrimination can include non-public funding, such as special needs trusts, income from legal settlements and third-party payers.

1. Source of Income Discrimination on the Ground: Persons Most Affected by SOI Discrimination

   In order to understand the consequences of SOI discrimination, it helps to consider those who are most affected by this type of discrimination. The majority of people who receive rental assistance or other supplemental sources of income from government programs are people living with disabilities, single female heads of household, (13) families with children (14) and members of racial minority groups. (15) The people targeted by SOI discrimination are among the same people Congress intended to protect when it passed the FHA.

   In a 2008 shadow report to the U.N. Committee on the Elimination of Racial Discrimination, the authors reported that across all HUD housing programs, seventy-nine percent of households are headed by women, forty-two percent are headed by women with children and fifty-eight percent are people of color. (16) At the international level, the U.N. Committee on the Elimination of Racial Discrimination published general comments on the gendered nature of racial discrimination, relying in part on the above statistics. (17) The Committee noted, "[t]here are circumstances in which racial discrimination only or primarily affects women, or affects women in a different way, or to a different degree than men." (18) Additionally, the Committee reported that certain types of racial discrimination can "escape detection if there is no explicit recognition or acknowledgement of the different life experiences of women and men, in areas of both public and private life." (19)

   That the majority of voucher holders are single female heads of household is not a new occurrence; in fact, since the early years of the Section 8 program, the majority of vouchers have been given to women with children. (20) If low-income minority women and children are being prevented from living in economically and racially diverse neighborhoods, the effects of this discrimination go well beyond the geographical details of where they sleep at night. (21) Where a child grows up is directly related to where he or she can go to school, and living in a low-income, racially segregated neighborhood with under-funded public schools can be a significant barrier to racial and economic integration for that family. (22)

   People with disabilities also suffer from discrimination based on source of income. More than fifty-one million Americans have a disability and people with disabilities have suffered a long history of residential discrimination and exclusion. (23) In fact, net measures of systemic discrimination against people with disabilities are generally higher than the net measures of discrimination on the basis of race and ethnicity. (24) Like families with children, people with disabilities are significantly more likely to have "worst case housing needs" than others who are similarly...