Landlords, property managers, and housing providers are required to honor the civil rights protections established under the Federal Fair Housing Act (Title VIII of the Civil Rights Act of 1968).
The Fair Housing Act is the set of laws associated with anti-discrimination laws for renters. The Fair Housing Act applies to all real estate transactions, including buying, renting, financing, and selling property.
The Fair Housing Act makes it illegal to refuse to rent to, negotiate with, or discriminate against any person based on their inclusion in a protected class.
Protect classes recognized under the Fair Housing Act include:
- Familial Status
- National Origin
The Department of Housing and Urban Development (HUD) is responsible for enforcing the Fair Housing Act.
According to HUD, under the Fair Housing Act, no one may take any of the following actions based on race, color, national origin, religion, sex, familial status, or handicap:
- Refuse to rent or sell housing
- Refuse to negotiate for housing
- Make housing unavailable
- Deny a dwelling
- Set different terms, conditions or privileges for sale or rental of a dwelling
- Provide different housing services or facilities
- Falsely deny that housing is available for inspection, sale, or rental
- For-profit, persuade owners to sell or rent (blockbusting) or
- Deny anyone access to or membership in a facility or service (such as a multiple listing service) related to the sale or rental of housing.
In Addition: It is illegal for anyone to:
- Threaten, coerce, intimidate or interfere with anyone exercising a fair housing right or assisting others who exercise that right
- Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.
Additional Protection if You Have a Disability
If you or someone associated with you:
-Have a physical or mental disability (including hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS Related Complex and mental retardation) that substantially limits one or more major life activities
-Have a record of such a disability or
-Are regarded as having such a disability
your landlord may not:
-Refuse to let you make reasonable modifications to your dwelling or common use areas, at your expense, if necessary for the disabled person to use the housing. (Where reasonable, the landlord may permit changes only if you agree to restore the property to its original condition when you move.)
-Refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the disabled person to use the housing.
Examples of Fair Housing Act Discrimination
To further help landlords and property managers, let’s take a look at some scenarios that could be considered violations of the Fair Housing Act.
Requiring some renters to pay an additional security deposit, but not all renters to pay extra.
Explanation: You need to treat all renters equally. Even if you are requesting a high-security deposit because of a non-discriminatory reason, if the renter happens to belong to a protected class, he can file a legitimate claim against you.
Asking if the rental applicant has any kids, even in a casual conversation.
Explanation: You are not allowed to ask questions that allude to the familial status of a rental applicant. You can usually ask the number of occupants under 18, to make sure you meet your area’s occupancy laws. But you cannot specifically ask how many kids an applicant or tenant has.
Describing a property as family-friendly in a rental ad.
Explanation: A family-friendly property description can be discriminating towards familial status because applicants could reasonably conclude that families are preferred as tenants.
Asking for verification of immigration or citizenship status.
Explanation: It is illegal to discriminate against national origin, and asking for a rental applicant to verify their citizenship would violate this right.
You can’t tell your renters that you go to the church down the street.
Explanation: Religion is a protected class and a landlord who references their own religious preferences can make a renter feel like the landlord prefers tenants with similar religious beliefs.
These are just some examples of housing discrimination related to rental housing. There are a few exceptions to the Fair Housing Act, including 55+ housing communities and renters who belong to a protected class but are a threat to the health or safety of others or who currently use illegal drugs.
Housing providers are responsible for knowing the law and their obligations under the Fair Housing Act. Ignorance of the law is not an acceptable excuse for unintentional violations.
The Fair Housing Act bars both intentional discrimination and policies and practices that have a disparate impact, ie that do not have a state intended to discriminate but have the effect of discriminating against the Fair Housing Act’s protected classes, as explained by the National Low Income Housing Coalition.
In 2015, the U.S. Supreme Court ruled in favor of recognizing disparate-impact as valid claims for discrimination lawsuits under the Fair Housing Act. The June 2015 ruling, saw a 5-4 decision that an action can be considered discriminatory even if the intent was not.
Like all Fair Housing laws, the disparate impact ruling is established to give further protection to people belonging to a protected class, so they can have an equal opportunity to housing.
In the case of rental housing, a landlord or property manager could be charged with a Fair Housing claim on the grounds of disparate impact if their screening criteria or rental policies prevented a protected group from accessing housing. When a rental policy has no clear discriminatory intent, if the policy adversely affects a protected group’s access to housing, that policy may violate the Fair Housing Act on disparate impact. For example, disparate impact arises when a practice produces different effects across racial groups, even if the practice wasn’t racially motivated.
Disparate impact claims are meant to target “artificial, arbitrary and unnecessary barriers” to equal housing access.
Advice for Landlords and Property Managers
Every landlord and property managers need to be extremely familiar with the Fair Housing Act and all federal, state, and local housing laws.
Fair Housing and Tenant Screening
Once Fair Housing laws are understood, screening criteria should be in place that treats every applicant the same. Legal screening criteria can be based on an applicant’s credit report and criminal background, rental history, income, and employment verification, as long as the landlord can prove that every applicant was screened by the same standards and the basis for the rejection was due to an applicant’s potential inability to pay rent or would put the property, other residents, or the neighborhood in danger.
To protect oneself from disparate impact claims, a landlord must have supporting documentation that all applicants are treated exactly the same and a tenant was accepted or rejected based on legal screening criteria. By collecting all of this information, not only can landlords make an informed decision about prospective renters, but they can show in court that they had valid reasons to select one tenant over another.
Fair Housing and Rental Management
Beyond tenant screening, every landlord and property manager must treat all residents equally during their tenancy at your property.
Some examples of unequal treatment might include:
- Requiring some residents, but not all, to pay additional fees
- Preventing some residents, but not all, from using common facilities or resident services
- Requiring some residents, but not all, to prove residency when access the grounds, facilities, or property
Remember, even if the intent was not there, if a resident belongs to a protected class and feels like they have been discriminated against, they can file a Fair Housing or Disparate Impact claim against you.
Education and Training on Fair Housing
It is a good idea to provide regular education and training opportunities to your staff and employees about their responsibilities as housing providers to uphold the Fair Housing Act and treat all residents and applicants fairly and equally.
Fair Housing laws change often, so it is always a good idea to reevaluate your rental business policies and seek legal counsel from someone familiar with landlord-tenant laws in your state before setting new ones in order to proactively address these potential issues before it is too late.
So whether you are advertising your property, screening new tenants, or setting apartment rules, make sure that you are in compliance with the law and that any actions or policies apply to everyone (with supporting documentation), and cannot be construed as affecting some people but not others.
How does a renter file a discrimination claim?
If a renter feels like their civil rights are being violated under the Fair Housing Act, HUD is ready to help. The Housing Discrimination Complaint Form is available for renters to complete online or download and return.
HUD wants to know the filer’s name and address, the name and address of the person the complaint is against, the address of the housing involved, a short description to the alleged violation, and the date(s) to the alleged violation.
HUD will investigate the claim, attempt a conciliation, determine if there is cause to the claim, and, if necessary, hold a court hearing.
This article was originally published in May 2017