Over the past approximately 50 years, Federal, State, and Local governments have passed laws prohibiting discrimination in housing. These broad and sweeping laws apply to most facets of housing, including selling real estate, mortgage lending, homeowner associations, and of course, renting. These laws are intended to create a unitary housing market where a person’s background cannot limit their access to housing.
In 1968, the Federal Fair Housing Act was adopted to protect classes of persons that had historically been discriminated against. These federal laws prohibited discrimination based on the following:
These groups of persons are commonly referred to as “protected classes” of people. The Fair Housing Act has been amended and now includes the following additional protected classes:
Familial status includes families with children under the age of 18 and pregnant women. It also refers to prospects in the process of adopting a child.
The Fair Housing Act applies to all aspects of the landlord-tenant relationship. For instance, a landlord may not:
Advertise or make any statement that indicates a limitation or preference based on race, religion, or any other protected category;
Falsely deny that a rental unit is available;
Set more restrictive standards for selecting tenants or refuse to rent to members of certain groups;
Before or during the tenancy, set 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;
Terminate a tenancy for a discriminatory reason; or
Refuse to make a reasonable accommodation or allow a reasonable modification for a person with a disability.
The Department of Housing and Urban Development (HUD) administers Federal fair housing laws.
In California there are two main bodies of law that prohibit housing discrimination. These laws are commonly referred to as the California Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act.
California law expands the protections afforded under the Federal law and extends the protections afforded to protected classes. Under California law, it is unlawful for a landlord, managing agent, real estate broker, or salesperson to discriminate against a person or harass a person in a protected class. A property owner cannot make oral or written statements, or use notices or advertisements that indicate any preference, limitation, or discrimination based on a protected class status.
Furthermore, in addition to the protections afforded under the Federal Fair Housing Laws, California law includes the following additional protected classes:
Pregnancy, childbirth or medical conditions related to them
Gender and perception of gender or gender identity or expression
Genetic information or characteristics
Family day care operators
Source of income
With regard to source of income, a landlord cannot use a financial or income standard for persons who want to live together and combine their incomes that differ from the landlord's standard for married persons who combine their incomes. In the case of a government rent subsidy such as Section 8, a landlord who is assessing a potential tenant's eligibility for a rental unit must use a financial or income standard that is based on the portion of rent that the tenant would pay.
The California Department of Fair Employment and Housing (DFEH) generally administers State fair housing laws.
San Francisco Law
The City of San Francisco has its own laws governing discrimination. For instance, San Francisco law adds the following classes of persons to the list of protected classes:
persons with AIDS
height and/or weight
And the San Francisco Rent Ordinance expressly provides that “No landlord, and no agent, contractor, subcontractor or employee of the landlord shall do any of the following in bad faith:
Violate any law which prohibits discrimination based on actual or perceived race, gender, sexual preference, sexual orientation, ethnic background, nationality, place of birth, immigration or
citizenship status, religion, age, parenthood, marriage, pregnancy, disability, AIDS or occupancy by a minor child;”
San Francisco law defines dwelling units to include group housing, senior housing, and residential hotels. And under the San Francisco Rent Ordinance, a rental unit means “a residential dwelling unit, regardless of zoning or legal status, in the City and County of San Francisco and all housing services, privileges, furnishings (including parking facilities supplied in connection with the use or occupancy of such unit), which is made available by agreement for residential occupancy by a tenant in consideration of the payment of rent.”
Examples of Discrimination
With Federal, State, and Local laws prohibiting housing discrimination, there are multiple layers of laws and protections, many of which may overlap. A property owner and landlord must comply with all layers of fair housing laws. So for instance, a landlord may comply with Federal fair housing law while at the same time violating State or Local fair housing laws. Such conduct could subject the property owner to liability.
Here are some examples of potential housing discrimination:
Failure to Accommodate Discrimination
SCENARIO: The landlord has a no pet provision in the rental agreement. The tenant informs the landlord that the tenant suffers from depression and would like to have a dog in order to alleviate the effects of the depression. The landlord simply denies the request and cites to the no pet provision in the rental agreement as the basis for denial.
LAW: It is unlawful for a landlord to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a disabled tenant an equal opportunity to use and enjoy a rental unit. Depression would typically be a qualifying disability. So it may be considered discrimination against a person with a disability to categorically deny the request by refusing to make a change in the no pet policy.
Improper Apartment Listing
SCENARIO: The landlord posts a public listing to rent a tiny studio apartment and in the listing states that the apartment is “suitable for a single tenant.”
LAW: If the landlord’s listing has the effect or impact of discouraging a protected class of persons from applying for housing, then it may be discriminatory. So the listing may be considered discriminatory since it may discourage or preclude persons with families or married persons from applying.
Perceptions & Association
SCENERIO: A tenant in an apartment complex is shot and injured by another tenant in the complex. The injured tenant sued the landlord accusing the landlord of being negligent because the landlord rented to the offending tenant even though the offending tenant appeared to be a gang member or associated with gang members. In short, the injured tenant argued that landlord should have never rented to the offending tenant based on the offending tenant’s appearance and that the injury could have been avoided.
LAW: The court disagreed with the injured tenant and reasoned that refusing to rent to someone simply because that person may have appeared to be in a gang, or whose family appeared to have had gang connections, would have been discriminatory.
Family Day Care
SCENERIO: A landlord includes a provision in the rental agreement prohibiting the tenant from operating a family day care. When the tenant notifies the landlord that the tenant intends to operate a licensed day care, the landlord refuses based on the prohibition in the rental agreement and threatens to evict the tenant.
LAW: Provisions in rental agreement prohibiting a tenant from operating a day care in the unit is unenforceable. A tenant is generally entitled to operate a licensed day care within a rental unit. The landlord generally cannot evict or prevent a tenant from doing so.
Liabilities for Discrimination
A property owner who discriminates in housing may be subject to various forms of liability. The owner may be liable not only to the person discriminated against, but to the government for violating applicable laws. Such liability may include fines and penalties, compensation to the person discriminated against, cease and desist orders, payment of the other sides attorneys’ fees and costs, etc. Liability for bad faith discrimination against a tenant of a unit covered under the San Francisco Rent Ordinance may include money damages of not less than three times the actual damage suffered by the person discriminated against, including damages for mental or emotional distress.
In short, there may be very costly consequences for discrimination. So it is imperative for any housing provider to know and comply with all applicable housing laws, including Federal, State, and Local laws.
Copyright © 2016 by Fried & Williams LLP. All Rights Reserved. The information in this article is general in nature and should not be considered legal advice. For any specific matter, please consult with an attorney.