The Fair Housing Act is a set of federal, state, and local civil rights laws that protect people from discrimination in all housing related transactions, including rentals, sales mortgages, appraisals, advertising, etc.
The Fair Housing Act protects individuals from housing discrimination based upon the following protected classes:
- National Origin/Ethnicity/Ancestry
- Familial Status (having children under the age of 18 in the home)
- Age (over 40 in the State of Pennsylvania)
Examples of Discriminatory Housing Practices (based on one or more of the above listed protected classes) are:
- Refusal to rent or sell housing;
- Refusal to negotiate for housing;
- Making housing unavailable;
- Refusal to make Reasonable Accommodations/Modifications;
- Setting different terms, conditions, or privileges in the sale or rental of a dwelling, or in the terms of a mortgage loan;
- Providing different housing services or facilities;
- Falsely stating that housing is unavailable for inspections, sale, or rental;
- For profit, persuading owners to sell or rent (blockbusting);
- Setting different terms or conditions in mortgages;
- Making discriminatory statements regarding the availability of a unit;
- Steering families with children or people with disabilities to the first floor.
The Fair Housing Act gives additional protections to people with disabilities in order to ensure full enjoyment of a unit or living space. The protections are called Reasonable Accommodations and Reasonable Modifications.
Person with Disability Defined
The terms “handicap” or “disability,” with respect to a person, means:
(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities;
(2) a record of having such an impairment; or
(3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance.
(PA Human Relations Act)
A “reasonable accommodation” is a change in rules, policies and practices or a change in the way services are provided.
Fair housing laws require landlords to grant reasonable accommodations in order to enable a person with a disability to have an equal opportunity to use and enjoy their housing accommodation or any of a development’s public areas, such as a community room or laundry service.
Reasonable accommodations can be necessary when someone is applying for housing, during tenancy or to prevent eviction.
Accommodations are considered “reasonable” when they are practical and feasible. Landlords do not have to grant an accommodation request if it would pose an undue burden (financial or administrative) on the landlord or require a fundamental alteration of the property. However the costs of the reasonable accommodation (if any) are assumed by the landlord and NOT the tenant.
Fair housing laws do not protect an individual “whose tenancy would constitute a direct threat to the health and safety of other individuals, or whose tenancy would result in substantial physical damage to the property of others.” 42 U.S.C. Section 3604(f)(9). A landlord must base his/her decision only on recent objective evidence of behavior that will put others at risk of harm.
Requesting a Reasonable Accommodation
Although it would be discrimination for a landlord to ask you first about your disability, you do need to disclose the fact that you have a disability upon requesting a “reasonable accommodation.”
In your request you need to describe the accommodation you want, note the nature of your disability only to the extent it clarifies your need for the accommodation, and explain how the accommodation would help you to fully use and enjoy your unit. You should make your request in writing (and keep a copy!).
The landlord may ask you to document your need for the accommodation if the need for the accommodation is not readily apparent. You must then provide the landlord with proof of your disability and that the accommodation you are requesting will allow you to fully use and enjoy your unit. You do not need to disclose the unnecessary specifics of your disability or provide a complete medical history. The type of “proof” you provide depends on your situation. For example, documentation or letters of explanation may come from a doctor or other medical professional, a health worker, or even a non-medical service agency.
Examples of Reasonable Accommodations:
- A landlord with a first-come, first-served, parking policy makes an exception by creating a reserved parking space for a tenant who, because of her disability, has difficulty walking and needs to park close to the building;
- A landlord notifies a tenant with multiple chemical sensitivity in advance of painting and pest treatments;
- A landlord waives “guest fees” and parking fees for a disabled tenant’s home health care aide;
- A landlord assists an applicant with mental retardation in filling out the standard application form;
- If the applicant needs oral reminders to pay the rent, the landlord agrees to call or visit to remind the person before each month’s rent is due;
- The monthly tenants’ or owners’ association meeting, usually held in an inaccessible building, is moved to a building with a ramp;
- A landlord permits a tenant with mobility impairment to move from a third-floor unit to the first floor;
- A landlord makes an exception to the building’s “no pets” rule for people with disabilities who use guide dogs or other “service” animals.
(What “Fair Housing” Means for People with Disabilities, Bazelon Center for Mental Health Law.)
A reasonable modification is when a physical or structural change is required.
The landlord must allow a tenant to make a reasonable modification if the modifications are reasonable and necessary for the tenant to use the dwelling.
In many instances, the tenant/buyer is responsible for the cost of these changes or modifications, and, if the landlord’s request is reasonable, the tenant may also be required to return the unit to its original condition.
Landlords may not require an increased security deposit from a tenant making a physical modification to the dwelling, however, housing providers, when necessary, may require the tenant to pay into an escrow account to cover the costs of returning the place to its original condition.
Examples of Reasonable Modifications
- Installing an automatic water faucet shut-off for people who cannot remember to turn off the water;
- Installing a ramp for a tenant who could not otherwise access her mobile home; installing pictures, color-coded signs or pathways for people whose cognitive disabilities make written signs impossible to use;
- Installing carpeting or acoustic tiles to reduce noise made by a person whose disabilities cause him or her to make a lot of noise;
- Disconnecting a stove and installing a microwave for a person unable to operate a stove safely.
The Fair Housing Act requires that any new multifamily housing built for first time occupancy after March 13, 1991, must meet certain Fair Housing design and construction requirements that make units accessible and adaptable for people with disabilities.
If the housing does not meet these accessibility standards, the housing provider must pay the cost of bringing it into compliance.
If the landlord receives federal funds and is, therefore, covered by Section 504 or Title II of the ADA, the landlord most likely will be required to make and pay for requested reasonable modifications.
Familial status discrimination is most common and most commonly misunderstood. Many housing providers believe it is perfectly legal to say “we won’t accept children”—but it’s not; it’s a violation of the fair housing laws.
Familial Status Defined
Having in the household: one or more individuals who have not attained the age of eighteen years being domiciled with:
(1) a parent or other person having legal custody of such individual(s); or
(2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.
Also protected under “familial status” is any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years. (PA Human Relations Act)
Common ways in which families with children are discriminated against:
- Flat out refusal to rent to families with children–No Children policy;
- Requiring families to live in specific buildings of an apartment complex, in specific sections of a building, or on the first floor of a building;
- Demanding that children of opposite sex have separate bedrooms;
- Refusing to rent based on perceived risks and dangers of the property (such as lead paint, steep steps, located near train tracks); inquiring about pregnancy;
- Inquiring about childcare arrangements; inquiring about the ages of the occupants &/or how many will be children;
- Charging extra for children.
Illegal “Opposite Sex Bedroom” Policies
Mandating that boys and girls have separate bedrooms is illegal and a violation of the fair housing laws.
The result of opposite sex/separate bedrooms policies can be devastating on families with children—forcing them into larger apartments at a greater expense or limiting the field of available apartments unnecessarily.
For example, families with a boy and a girl would be forced into looking for a three bedroom apartment, not a two, or forced to look elsewhere when only two bedrooms are available.
Illegal segregation and steering of families with children
Often apartment complexes and buildings have designated areas set aside for families. They promote their facilities as having singles and families separated out.
Advocates for such policies argue that the policies are nurturing and benefiting the family community by having other families nearby and child-friendly facilities at hand. They argue as well that policies are based on the safety and welfare of the children.
Steering families away from one community or complex and towards another is common. Sometimes complexes dissuade families from living in their complex altogether.
Segregation policies greatly affect families with children because they limit the housing that is available to families. They preclude families from the other housing opportunities that are available to the rest of the world. Such limitations have the effect of forcing families into substandard housing, or homelessness.
Policies that segregate families with children are against the law.
Facts and Stats on Familial Status Discrimination:
- 25% of the complaints received by the Fair Housing Council in 2001 were discrimination cases against families with children;
- “Familial status” is only one of the protected classes covered by the fair housing laws;
- In Pennsylvania nationally, in 2001 “familial status” complaints made up 15% of the total reported cases (race complaints=32%; disability=24%);
- The National Fair Housing Alliance reports that the number of complaints filed nationally represents only about 1% of the annual estimated incidence of housing discrimination in the US;
- According to an Urban Institute study, 3 out of 5 people do not know that it is illegal to treat households with children differently from households without children.
Hate crimes become a fair housing issue when one suffers from intimidation, harassment, coercion, or any type of interference designed to prevent certain protected groups from living peacefully in the community or home of their choice. This includes ethnic intimidation.
Examples of hate crimes could be vandalism, personal attacks, damaged property, intimidating letters, and terrorist threats and cross burnings.
Sexual harassment is also covered under the Fair Housing Act if the harassment is imposing on a person’s ability to live peacefully in the neighborhood or dwelling of their choice.
Both the federal Fair Housing Act and the Pennsylvania Human Relations Act protect individuals from sexual harassment in housing. Sexual harassment in housing is sex/gender discrimination under the law—targeting a specific protected class, or individuals based on their gender.
The courts have recognized two forms of sexual harassment— “quid pro quo” and “hostile housing environment.”
Quid Pro Quo Sexual Harassment
“Quid pro quo” sexual harassment (literally, “this for that”) involves harassment in situations in which sex or sexual favors are demanded of an individual by those in control of their housing in return for housing or a housing benefit. For example, quid pro quo harassment occurs if a landlord evicts a tenant or negatively impacts upon a housing voucher because the tenant refuses to have sex with the landlord or housing provider.”
The Fair Housing Act prohibits denying or limiting services or facilities in connection with the sale or rental of a dwelling, because a person failed or refused to provide sexual favors. One incident alone is enough to sustain a claim of quid pro quo sexual harassment.
Hostile Environment Sexual Harassment
A hostile housing environment claim involves unwelcome behavior of a sexual nature that creates an intimidating, hostile, or abusive housing environment or has the effect of unreasonably interfering with the tenant’s housing. The conduct must be sufficiently severe or pervasive as to create an environment that a reasonable person would find intimidating, hostile, offensive, or otherwise significantly less desirable.
Whether or not conduct constitutes sexual harassment will depend upon the totality of the circumstances in each situation, on a case by case basis. Critical factors to examine include, but are not limited to: context, nature, severity, scope, frequency, duration, location of incident(s), and identity, number, relative ages and relationships of the persons involved.
Where in a quid pro quo claim, one incident can be enough to establish sexual harassment, in a hostile environment claim it is usually necessary to demonstrate a series of harassing incidents to prove sexual harassment. Whether conduct creates a hostile environment will be evaluated from the perspective of a reasonable person in the aggrieved person’s position.
This practice occurs when a property manager has policies that steer tenants to a certain part of the building (first floor, in back, etc.) or specific sections of the complex based upon the fact that they have children, are disabled, are of a different race, etc. Steering can also occur when realtors are selective as to which homes/neighborhoods are shown to a client.
“Blockbusting,” also commonly known as “Panic Selling,” is a discriminatory practice characterized by using tactics to induce a person to sell their home by persuading them that the entry of persons of a particular race, color, religion, sex, familial status, national origin or disability into their neighborhoods will negatively affect the community and decrease the value of their homes.
Blockbusting destroys neighborhoods by stripping them of their social and economic stability. Blockbusting perpetuates segregation and discrimination, which in turn encourages capital flight and increases poverty. The end result is monetary loss to the homeowner, economic instability and loss of the opportunity to live in racially and ethnically diverse neighborhoods.
Common signs of blockbusting are:
- Repeated solicitations from a realtor asking if you have thought about selling your home;
- Investors offering quick cash for your property;
- Realtors calling you directly and asking if you have noticed the number of minorities moving in lately, or rumors circulating about plummeting property values.
Also, key phrases might be “undesirable elements are moving in” or references to “bad schools” or “changing neighborhoods” due to racial or other discriminatory reasons.
Predatory lending is a fraudulent loaning process characterized by lending practices that have unfair and abusive terms and are aimed to take advantage of certain individuals, such as the elderly, minorities, people with low incomes and less education.
Homeowners need to be careful when borrowing money based upon their home equity.
Indicators of a Predatory Loan:
- High interest rates;
- Repeated refinancing of your loan;
- Prepayment penalties;
- Excessive fees on settlement sheet;
- Balloon payments;
- Fraudulent signatures on loan documents;
- Monthly payments you can not afford.
The Fair Housing Act contains several exemptions on federal and state levels:
1) Religious organizations can show preference to members of the same religion when offering non-commercial (free) housing, such as shelters or nursing homes. However, current law forbids faith-based organizations receiving federal grants from discriminating among recipients or applicants for services on religious grounds. Private clubs may show preference to club members under similar circumstances;
2) The act does not prohibit a private club, not in fact open to the public, from limiting the rental or occupancy of noncommercial lodgings to members. (Note that this does not address the issue of whether a private club may discriminate when admitting members based on race. That type of claim falls under the Civil Rights Act.);
3) Discrimination based on familial status will not apply to housing qualifying for exempted status as housing for older people; “Housing for older persons” is housing:
provided under any federal or state program that the Pennsylvania Human Relations Commission determines is specifically designed and operated to assist elderly persons as defined in the federal or state program;
- is intended for and solely occupied by persons 62 years of age or older or
- is intended and operated for the occupancy by at least one person 55 years of age or older per units
4) The sale or rental of a single-family house by the owner will be exempt from coverage, providing the following conditions are met: The owner does not own or have any interest in more than three single-family houses at any one time, and the house is sold or rented without the services of a real estate licensee or the facilities of any person in the business of selling or renting dwellings. The exemption will apply to one sale within a two-year period unless the owner was the most recent applicant. (Note that the Civil Rights Act still applies.)
5) On the federal level, the Fair Housing Act does not cover owner-occupied dwellings designed for occupancy by no more than four families living independently of each other (Mrs. Murphy’s Exemption). The term comes from the U.S. Civil Rights Act of 1968 and was used to describe a property owner of a limited number of units whose real estate transactions did not involve the use of a broker or agent. However, it is also important to understand that the Pennsylvania Human Relations Commission applies Mrs. Murphy’s Law only to personal residences, which is defined as “a building or structure containing living quarters occupied or intended to be occupied by no more than two individuals, two groups or two families living independently of each other and used by the owner or lessee thereof as a bona fide residence for himself and any members of his family forming his household.”
The Fair Housing Act also prohibits discrimination in advertising.
Advertising constitutes as any statement made. Therefore, this includes television, radio, or newspaper ads, fliers, emails, websites, or any statement made, even if it is orally communicated over the phone, in person, or to another person aside from the aggrieved party. If a statement is made in any of these capacities and it reflects a preference, it can be a violation of the Fair Housing Act.
Other types of advertising that could violate the Fair Housing Laws would be to advertise in selective geographic areas, being selective with the use of equal opportunity slogans or logos, selective of human models which show preference to a specific race or group or people when conducting an advertising campaign.
As a housing provider, you are responsible for understanding the Fair Housing Act and its relevance to your housing policies. It is encouraged that all housing providers conduct the following activities in order to ensure safety from discrimination:
Develop Standard Procedures and Clear Policies
Determine exactly how your rental agents will deal with prospective tenants. The crucial requirement is that all persons who inquire about rentals be treated in the same manner and that the sequence in which they are told about apartments, shown apartments, asked for credit references, etc., be identical for all and that the information given by the rental agent be the same in every case. Put this procedure in writing. The following are guidelines:
- Tell applicant about all existing vacancies;
- Tell applicant about all units that will be available within the next 30 days;
- Show applicant all apartments in which he or she has expressed an interest;
- Tell applicant what will be done to redecorate or refurbish units;
- Tell applicant the rent for each unit; whether or not utilities are included; what is required in the way of a security deposit, key deposit, etc.;
- Ask applicant to fill out application form;
- Ask applicant for credit references;
- If there are no vacancies or no units that will be available within 30 days, ask applicant if he or she would like to be placed on a waiting list;
- Give applicant a business card;
- If there is a waiting list, notify applicants in the order in which they applied.
Your own procedures may vary from this example. This is all right, provided you use them uniformly for all applicants. All decisions on whether to accept or reject applicants must be based on identical criteria. Therefore, it is important to establish written criteria by which you will qualify prospective tenants. These criteria should be available to all applicants.
Applicants who are rejected should be notified within a reasonable period of time and should be told why they have been rejected. The Equal Credit Opportunity Act (ECOA) states that if you deny an applicant for a credit related transaction, they must be informed why.
Educate Your Employees
- Review your standardized rental office procedures with all employees at regular intervals;
- Provide fair housing training for all employees;
- Provide all employees with written non-discrimination policy;
- Ask each employee to sign a memorandum of understanding that states your intention to terminate the employment of an employee who violates the fair housing laws;
- Make It Known That You Obey Fair Housing Laws;
- Hang a fair housing poster in a clearly visible location in the room where rental business occurs. Standard Fair Housing posters can be acquired by calling the HUD Distribution Center at 1-800-767-7468 and requesting publication HUD-928.1;
- Use an equal opportunity logo or statement on all brochures and pamphlets;
- Use an equal opportunity statement of rental applications;
- Avoid advertising that could be construed as an attempt to select or discourage persons on the basis of any of the protected classes;
- Maintain a list of available apartments to be shown to rental applicants to ensure that all applicants are given the same information. Include on this list such things as the apartment number, the rent, utilities, security deposit, date of availability, and deposit required.
Who is liable?
Virtually everyone involved in the ownership or leasing of the property at issue can potentially be held liable for a fair housing violation–from leasing consultants to the owners of the management company and the owner of the property.
When an individual believes that he or she has been harmed by an unlawful discriminatory housing practice, three alternative legal options are available.
The following is a brief overview:
Private Suit: The individual may institute a private lawsuit in federal, state, or local court. The statute of limitations is two (2) years from the alleged discriminatory practice. Unlimited damages may be sought.
Federal/HUD: The federal government provides that a complaint may be filed with the Office of Housing & Urban Development. HUD is authorized to investigate and conciliate complaints but can refer complaints to states or localities that have fair housing laws which provide substantially equivalent rights and remedies. HUD may order a respondent to pay damages, civil penalties, and attorney’s fees if discrimination can be found.
State/PHRC: A complaint may be filed with the Pennsylvania Human Relations Commission (PHRC) within 180 days of the alleged discriminatory action. Currently, the PHRC is the substantially equivalent agency to HUD which means that individual cases may be referred to the Commission by HUD. If discrimination is found the Commission may order an award for actual damages, damages for humiliation and embarrassment, and assess a civil penalty.