Housing Discrimination

Federal and state laws make it illegal for landlords, and other property owners and agents, to discriminate on the basis of certain group characteristics. Congress enacted the Fair Housing Act of 1968 and the Fair Housing Amendments Act of 1988 to prohibit housing discrimination based on race, color, religion, sex, national origin, family status or age, and disability. Some state and local laws also prohibit housing discrimination based on marital status, sexual orientation, and gender identity. Illegal conduct includes discrimination in the sale, rental, financing, and advertising of real estate.

Examples of Illegal Housing Discrimination

The form of discrimination may vary, but the Fair Housing Acts, as well as state and local laws, prohibit landlords from taking illegal action against tenants (or potential tenants) based on certain protected categories. Some illegal actions are overt, and others may be carried out indirectly. Refusing to lease property to someone based on race, for example, constitutes overt discrimination, but an apartment advertisement stating “safe Catholic community” is just as illegal, since potential tenants might reasonably believe that Catholics are preferred tenants.

Another more discrete method of discrimination occurs when landlords set unreasonably low occupancy limits. The unstated goal of requiring that only two people can rent a two-bedroom apartment might be to exclude families, which is illegal under federal law. In general, two persons are allowed per bedroom.

Similarly, landlords must exercise caution when reviewing a prospective tenant’s criminal or arrest record. It is not considered permissible to deny housing to someone on the sole basis that they have an arrest on their record. If someone has an actual conviction in their past, landlords must evaluate whether this fact is relevant based on the nature of the crime as well as how old the conviction is. Situations where a criminal conviction may arguably be significant in this context include those in which the offense at issue could reflect a danger to other tenants. However, a non-violent crime that occurred many years ago is not as likely to justify a denial. Landlords must also be aware that denying rental applications on the basis of criminal history, even if they apply this policy to all applicants, can expose them to liability under anti-discrimination laws if those denials have a disproportionate impact on members of a particular race or other protected group. Further, under the Fair Housing Amendments Act, landlords cannot refuse to rent to someone on the basis of past drug addiction, as this is considered a disability. However, current drug users, as well as individuals with convictions for drug sales or manufacturing, are not part of this protected category.

Other examples of housing discrimination might include refusing to reasonably accommodate the needs of disabled tenants by preventing them from using a service dog or emotional support animal. Although a building may be designated “no pets,” a landlord must reasonably accommodate the needs of disabled tenants. This means that rules, procedures, and services must be adjusted to provide equal opportunity to use and enjoy the apartment or common spaces.

A landlord may not discriminate against elderly tenants based on age, and must also provide them with reasonable accommodations, such as grab bars or safety rails in showers, if they are disabled. However, even tenants protected under fair housing laws must observe requirements to keep a rental unit in safe and sanitary condition, and if an elderly tenant is unable to do so this may be grounds for ending the tenancy.

In general, landlords can select tenants based on valid business reasons, such as requiring a minimum income, as long as the landlord applies the same standard to all tenants. And a landlord is not required to make changes for a disabled tenant, for example, that seriously impair the landlord’s ability to run their business. This may or may not include installing an elevator to the third floor to accommodate the disabled tenant’s desire to live on that floor.

Resolving Housing Discrimination Disputes

Tenants alleging housing discrimination have legal remedies, though complaints must be pursued promptly. Time limits, called statutes of limitations, for filing housing discrimination complaints are short. Federal housing discrimination laws are administered by the U.S. Department of Housing and Urban Development (HUD), and allow for only one year from the date of the alleged unlawful conduct for tenants to submit their complaints.

The first step a tenant claiming discrimination must take is to contact the local office of the U.S. Department of Housing and Urban Development (HUD) to complete a complaint form online. HUD will investigate and determine whether a fair housing law has been broken. If so, they may appoint a mediator to facilitate negotiations with the landlord and reach a settlement. Landlords facing complaints of this nature are in a stronger position to defend themselves if they have well-documented business reasons for any decisions the tenant or prospective tenant disagrees with, so as to disprove the argument that the landlord acted with discriminatory motives. If the parties do not reach a settlement, there will be an administrative hearing at which an agency judge will decide whether a fair housing violation has taken place.

Local agencies can also help to resolve housing discrimination disputes if a state fair housing law has been broken. A complaint can be filed with state or local government offices in charge of enforcing the housing law, though the deadlines to file with these agencies could be sooner than the federal statute of limitations.

Sometimes, a tenant may take direct legal action by filing a lawsuit federal or state court, depending on the discriminatory conduct alleged. A tenant may be awarded damages if the court finds that discrimination has occurred. These damages could include both compensatory and punitive damages. The compensatory damages tenants typically seek can include the costs of moving and storage, as well as losses directly resulting from the discrimination. Compensatory damages can also include emotional distress, which is a common consequence of discrimination. Fair housing litigation is often very expensive and time-consuming for landlords, even if they ultimately prevail in their cases. However, some insurance policies will cover the costs of litigation or settlement.