Complying with State and Local Fair Housing Laws
In this month’s lesson, the Coach surveys state and local fair housing laws. Usually, our focus is on federal law, but it’s necessary to look beyond federal law to comply with any applicable state and local law to avoid fair housing trouble.
Example: In June 2018, a New Jersey landlord agreed to pay $28,000 to resolve allegations that he unlawfully evicted a single mother after refusing to allow her to pay her rent with a state-issued housing assistance voucher for families displaced by Superstorm Sandy, according to Attorney General Gurbir S. Grewal.
In her complaint, the woman alleged that the landlord evicted her and her three children one month after she showed him her housing voucher and asked him to fill out the landlord’s portion of the related paperwork so she could submit it for processing. New Jersey’s fair housing law prohibits housing discrimination based on a “source of lawful income used for rental or mortgage payments.”
“Families who pay for their housing with the help of government assistance have a right to live where they choose—and to be treated with dignity and respect,” Grewal said in a statement. “We will hold accountable anyone who denies them this basic right. This settlement resolves troubling allegations and, going forward, should serve as a message to landlords, real estate agents, and others involved in the housing industry.”
This lesson offers nine rules to help your community comply with applicable state and local requirements—along with a checklist of additional characteristics protected under the law of each state. Finally, you can take the Coach’s Quiz to see how much you’ve learned.
Coach’s Tip: This month’s state-by-state checklist provides a snapshot of current fair housing laws. It’ll give you a solid foundation on fair housing requirements, but it’s important to get legal advice on the particular state and local laws applicable to your community. And since proposals to expand fair housing protections are being introduced all the time, you’ll need to keep track of any pending or newly enacted laws affecting your community.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) is the federal law that bans housing discrimination based on seven protected classes: race, color, religion, sex, familial status, national origin, and disability. The FHA applies nationwide, so you must comply with federal law, regardless of where your community is located.
In addition, you must comply with applicable state and local laws, many of which have expanded fair housing protections to cover other characteristics. Nearly all states have their own fair housing laws. Roughly half cover only the seven federally protected classes, but the others have expanded fair housing laws to add other protected characteristics. Some—like marital status, age, ancestry, and creed—have been on the books for many years, while others—like sexual orientation, gender identity or expression, and source of income—have been added more recently.
In addition, many local governments have adopted fair housing laws that expand protections beyond those required under federal and state law. The laws may vary widely from city to city, even within the same state, so it’s important to understand all applicable laws, particularly if you own or manage communities in more than one state—or multiple locations within a state.
Coach’s Tip: Three states—Arkansas, North Carolina, and Tennessee—have enacted laws that restrict local governments from expanding antidiscrimination laws beyond those covered under state law. Meanwhile, two states—Texas and Indiana—have outlawed local ordinances banning discrimination based on source of income that would require landlords to accept Section 8 housing vouchers.
9 RULES FOR COMPLYING
WITH STATE AND LOCAL FAIR HOUSING LAWS
Rule #1: Comply with Laws Protecting Marital Status
About half the states and many municipalities include fair housing protection based on marital status. In general, these laws prohibit communities from treating people differently based on whether they’re single, married, divorced, or widowed. Examples include charging a higher rent, requiring a higher income, or imposing different interest rates to unmarried households than to married households. If married households are allowed to combine their incomes to qualify, then unmarried households must have the same opportunity.
Example: In July 2018, a San Diego property owner and manager agreed to pay $7,500 to settle claims of marital status discrimination for allegedly refusing to rent a home to a couple because they were not legally married, according to the California Department of Fair Employment and Housing (DFEH).
The complaint alleged that an applicant had been offered the lease, but upon disclosing that he planned to live with his boyfriend was told that both he and his partner had to individually satisfy a $90,000 yearly income standard. When the applicant asked if he and his partner could aggregate their incomes to satisfy the requirement, they were told that they could do so only if they were married, and since they were not, the applicant and his partner were forced to find another home to rent together.
“California’s Fair Employment and Housing Act makes it unlawful for landlords to apply an income standard where married couples can aggregate incomes but unmarried couples cannot,” DFEH Director Kevin Kish said in a statement. “It is especially important in today’s tight housing market that landlords know not to use discriminatory income standards to deny housing to qualified applicants.”
In a handful of states, landlords have challenged the state laws protecting marital status based on religious objections to renting to unmarried couples of different sexes. In most cases, courts have ruled against the landlords. But the law in at least one state, North Dakota, bans discrimination based upon “status with respect to marriage” but does not prevent “a person from refusing to rent a dwelling to two unrelated individuals of opposite gender who are not married to each other.”
Even if your community is located in a state that doesn’t ban discrimination based on marital status, local laws may cover the breach. In Pennsylvania, for example, state fair housing law doesn’t cover marital status, but Philadelphia has added marital status to its list of protected characteristics.
Coach’s Tip: Regardless of state or local law, it’s important to remember that you may not exclude or discriminate against unmarried individuals or couples with children under age 18. Federal fair housing protections based on familial status applies to the parent or parents of children under the age of 18—and others, including pregnant women, regardless of their marital status.
Rule #2: Comply with Laws Banning Age Discrimination
Many state and local laws ban discrimination based on age, though there are significant differences in how the laws apply because of the way they define “age.”
In many states, age is defined to mean individuals aged 18 and older. These laws broadly prohibit discrimination against adult applicants because they are considered either too young—or too old—to live in a particular community or area of a community.
In a few states, the focus is on protecting older people from housing discrimination, most commonly by defining age to mean individuals who are 40 and over. In Virginia, the discrimination ban applies to “elderliness” as opposed to age, and defines it as being 55 and older. For example, it would be unlawful to exclude an older applicant who meets screening requirements, but who may be approaching retirement age, simply because of concerns about his future financial qualifications.
Aside from state laws banning age discrimination, you could trigger a complaint for discrimination based on familial status, if you impose age restrictions that prevent children under 18 from living there, unless you qualify as a senior housing community.
Example: In January 2019, the California Department of Fair Employment and Housing (DFEH) announced a $10,000 settlement in a fair housing complaint alleging familial status discrimination against the owners of a six-unit rental community and a residential real estate brokerage firm that managed the property. Fair housing advocates filed the complaint, claiming that the property was advertised online as an “adult complex” and included a restriction of “maximum 2 adults.” During a follow-up call, the property manager reportedly told a tester that children were not allowed. According to the DFEH, the complex wasn’t a senior citizen housing development and there was cause to believe a violation of state fair housing law had occurred.
Rule #3: Comply with Laws Banning Discrimination Based on Ancestry
Though the FHA bans discrimination based on national origin, many states and local laws added ancestry to their lists of protected characteristics. Federal law doesn’t define “national origin,” so there was some concern that it applied only to the country where the applicant was born—not where his family came from. Laws banning discrimination based on ancestry were adopted to ensure fair housing protection based upon the country of origin of the applicant’s family.
Meanwhile, HUD has made it clear that ancestry is included in the federal ban on discrimination based on national origin. “National origin” means the geographic area in which a person was born or from which his or her ancestors came, according to HUD’s 2016 guidance on fair housing protections for Persons with Limited English Proficiency. Although language discrimination is not necessarily national origin discrimination, HUD says that national origin discrimination includes discrimination because an individual has the physical, cultural, or linguistic characteristics of persons from a foreign geographic area.
Rule #4: Comply with Laws Banning Discrimination Based on Creed
To supplement the federal ban on discrimination based on religion, many state and local lawmakers have adopted fair housing protections based on creed or in some statutes, “religious creed.”
Though both religion and creed are often undefined, fair housing experts believe that these terms are intended to ensure broad protections based on sincerely held religious or spiritual beliefs. That would mean that it’s unlawful to discriminate against individuals who aren’t affiliated with a particular religion or don’t ascribe to particular religious beliefs. Treating people differently simply because they do—or do not—attend religious services or identify with a religious faith could lead to fair housing trouble.
In New Jersey, for example, the law banning discrimination based on creed protects individuals who:
- Belong to a particular religious faith or attend a particular place of worship;
- Are nonbelievers;
- Are associated with a person of a particular religion;
- Are perceived to be of a particular faith, even though they are not actually of that faith; or
- Have sincere and meaningful moral or ethical beliefs that are held with the strength of traditional religious views, according to a fact sheet on the Attorney General’s website.
Nevertheless, the New Jersey law banning discrimination based on creed generally doesn’t apply to protect a person’s political or social views, such as to protect a person who’s a member of the Ku Klux Klan.
In New York City, both state and local laws ban housing discrimination based on creed, including the perception of those beliefs by others, according to Fair Housing NYC, a joint website of the New York City Commission on Human Rights and Department of Housing Preservation and Development. You don’t need to support a belief to be discriminated against because of it. The negative perception of others may be based on your dress, jewelry, a book you carry, or a symbol on a tee shirt.
The city’s website says that these behaviors, policies, or practices could be evidence of discrimination:
- Advertising on Craigslist that the owners prefer “Christians”;
- Being told by the real estate agent that you’ll be happier in a nearby area because “the Jews all live there” after he took notice of your last name; or
- Being denied services in your apartment after the landlord saw you with a bible published by a group he described as a “cult.”
Rule #5: Comply with Laws Banning Discrimination Based on Sexual Orientation and Gender Identity
Currently, 22 states and the District of Columbia ban discrimination based on sexual orientation—all but one also covers gender identity or expression. Generally speaking, sexual orientation means an individual’s actual or perceived orientation as heterosexual, homosexual, or bisexual. Gender identity or expression refers to gender-related identity, appearance, expression, or behavior that differs from that traditionally associated with the individual’s sex at birth.
If you’re located in one of these states, it’s important to find out exactly what your state law covers. It often takes more than simply reading the relevant statute since the wording and definitions used in state laws vary widely. Some laws specifically list sexual orientation and gender identity (and gender expression) and define those terms to spell out what they mean. This is often the case when lawmakers add gender identity or expression to existing laws banning discrimination based on sexual orientation.
Example: In January 2019, New York became the latest state to add gender identity or expression to current protections for sexual orientation. In separate sections, the law defines “sexual orientation” as “heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived.” The law defines the term “gender identity or expression” as a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.
In contrast, some states list only sexual orientation as a protected class, but the law covers both sexual orientation and gender identity. In Colorado, for example, the law lists only sexual orientation, but it also covers gender identity, since the law defines sexual orientation as “a person’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another person’s perception thereof.”
Even in the absence of statewide protections, you should check all applicable local fair housing laws. Across the country, hundreds of county, city, and municipal governments have expanded fair housing protections to ban discrimination based on sexual orientation or gender identity. In Ohio, for example, state law doesn’t cover sexual orientation or gender identity, but all three of the largest cities—Columbus, Cleveland, and Cincinnati—all have city ordinances that do.
It’s particularly important to stay on top of developments since advocates are pressing forward with proposals to add protections for sexual orientation and gender identity to state and local fair housing laws. As of February 2019, proposals to add sexual orientation and gender identity were pending in about a dozen state legislatures.
Meanwhile, similar proposals are being considered by local lawmakers across the country—with more being considered all the time. In February 2019, for example, the Associated Press reported that the Fairbanks City Council voted to approve an equal rights ordinance banning discrimination against LGBTQ individuals in employment, housing, and public accommodations.
Coach’s Tip: Public and federally assisted housing providers must comply with HUD’s Equal Access Rule, which requires equal access to HUD programs without regard to a person’s actual or perceived sexual orientation, gender identity, or marital status.
Does Ban on Sex Discrimination Cover
Discrimination Based on Sexual Orientation or Gender Identity?
Although federal fair housing law doesn’t specifically list sexual orientation or gender identity as protected classes, discrimination against people based on their sexual orientation or gender identity could trigger a sex discrimination claim under federal fair housing law.
Example: In 2017, a court held that a Colorado landlord’s refusal to rent to a lesbian couple, one of whom is transgender, amounted to discrimination because of sex under the FHA. Siding with the couple, the judge agreed that discrimination against women (like them) for failure to conform to stereotypes about whom a woman should marry and/or should have children with is discrimination on the basis of sex under the FHA. “Such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping” [Smith v. Avanti, April 2017].
Recently, state agencies tasked with enforcing state fair housing laws in Pennsylvania and Michigan have issued guidance that state fair housing laws cover discrimination claims based on sexual orientation or gender identity as a form of sex discrimination. Last year, Michigan’s former Attorney General contradicted that assessment, but the state’s new Attorney General has been asked to reconsider the decision. “I welcome the opportunity to reevaluate this important issue to ensure all people who live in and visit our state are treated equally and fairly under the law,” Attorney General Dana Nessel said in a statement.
Rule #6: Comply with Laws Protecting Source of Income
Last year, Washington became the latest state to ban discrimination based on lawful source of income—that is, discriminating against applicants or residents because of how they get their financial support. The specifics of the laws vary, but they generally apply to wages, retirement benefits, child support, and public assistance.
Currently, 14 states and the District of Columbia have source-of-income protections. Many—but not all—also cover housing subsidies, most notably Section 8 housing vouchers. The name was changed to the Housing Choice Voucher program, but many still use “Section 8” to refer to the federal government’s major housing assistance program. Federal law doesn’t require participation in the Section 8 program, and the law in some states, notably California, bans discrimination based on source of income, including public assistance, but not Section 8 vouchers. More commonly, state laws banning discrimination based on source of income make it unlawful to refuse to rent to Section 8 voucher holders.
Example: In November 2018, District of Columbia Attorney General Karl A. Racine announced a lawsuit against two local real estate companies for refusing to show or rent available properties to prospects who receive housing assistance from the federal government. In the District of Columbia, the law bans housing discrimination based on source of income, so landlords cannot refuse to rent to prospective tenants simply because they rely on vouchers. The complaint alleged that each company:
- Discriminated against voucher-holders in its advertising and communications: Allegedly, the ads on its website and other online platforms stated it didn’t accept housing vouchers, and company representatives verbally communicated that it didn’t accept housing vouchers at its rental properties.
- Prevented voucher recipients from viewing and leasing rental properties: Allegedly, the companies used an online form to allow prospects to schedule showings of available units, but prospects who indicated they planned to use Section 8 vouchers to pay their rent were automatically denied the opportunity to view the properties.
“Many District of Columbia residents receive subsidies, including housing vouchers, to assist them in meeting the high cost of living in our city,” Racine said in a statement. “It is illegal to deny housing opportunities to District residents who use subsidies or vouchers to pay for their rent. Today’s lawsuit is a warning to entities that denying housing on the basis of source of income is discriminatory, illegal, and will not be tolerated.”
Even in states that don’t cover source of income, there may be local fair housing laws protecting source of income, including Section 8 vouchers. In New York, for example, state fair housing law doesn’t cover source of income, but New York City’s fair housing law bans discrimination based on source of income, including Section 8 housing vouchers.
Coach’s Tip: Ask your attorney to keep you apprised of any pending changes to the law in your state to adopt or expand laws banning discrimination based on source of income. Currently, such proposals to add protections based on source of income are under consideration in a handful of state legislatures, including New York, Maryland, and Rhode Island. Meanwhile, California lawmakers are considering a proposal to expand source of income protections to include Section 8 rent subsidies. And for more information on complying with such laws, see the Coach’s October 2018 lesson, “How to Comply with Laws Banning Discrimination Based on Source of Income.”
Rule #7: Comply with Laws Banning Discrimination Based on Military Status
Currently, eight states have adopted some form of fair housing protections based on military status, though the laws vary in the language used and whom they cover. In general, these laws prohibit discrimination against active duty members and veterans of the armed forces, reserves, or state National Guard.
In some states, fair housing protections for veterans are tied to the nature of their discharge. In Illinois, for example, the law bans discrimination based on both military status and “unfavorable discharge from military service.” But Washington’s fair housing law protects military status, but only honorably discharged veterans. The law in Rhode Island bans discrimination based on “military status as a veteran with an honorable discharge or an honorable or general administrative discharge,” or “servicemember in the armed forces.”
Meanwhile, there may be local protections, though the laws may vary from place to place. In Ohio, the law bans discrimination based on military status, which is defined as a person’s status in “service in the uniformed services.” In Cleveland, local law specifically bans discrimination based on “Vietnam-era or disabled veteran status.”
In the absence of statewide protections, there may be local laws protecting military status. Though Texas doesn’t list military status as a protected class, the law in San Antonio bans discrimination based an individual’s veteran’s status.
So far this year, proposals to add military or veteran status to state fair housing laws have been introduced in California and Oklahoma. Meanwhile, federal lawmakers are considering a bill to protect veterans and low-income families from housing discrimination under federal law. Senators Tim Kaine (D-VA) and Orrin Hatch (R-UT) recently introduced the bipartisan measure, the Fair Housing Improvement Act of 2018, which would expand the Fair Housing Act’s protections to prohibit housing discrimination based on source of income or veteran status.
“As a fair housing lawyer, I witnessed the pain experienced by families who were discriminated against as they searched for a home,” Kaine said in a statement. “Housing decisions should be made on a potential tenant’s merits, not harmful prejudices that hurt the nation’s veterans and families. The Fair Housing Improvement Act will help us continue that long pursuit to protect all Americans from discrimination.”
“Helping veterans lead lives of dignity and independence has long been among my top priorities. This bill is part and parcel to that legacy. It will put an end to the immoral housing discrimination against veterans and others who rely on veterans’ benefits, Social Security disability, or other non-wage legal income. This bill will address the fact that Source of Income is not a protected class under the Federal Fair Housing Act, thereby helping to remove an unnecessary barrier facing Utah families and veterans on the path to self-reliance,” Hatch said in a statement.
Rule #8: Comply with Laws Protecting Domestic Violence Survivors
Currently, fair housing laws in three states and the District of Columbia cover survivors of domestic violence, though the laws vary in the language used. In Illinois, for example, the state’s fair housing law bans discrimination based on “order of protection status,” among its protected classes. In the District of Columbia, fair housing law bans discrimination based on “status as a victim of an intrafamily offense.” In Rhode Island, the law bans discrimination “on the basis that a tenant or applicant or a member of the household is, or has been, or is threatened with being the victim of domestic abuse, or that the tenant or applicant has obtained, or sought, or is seeking relief from any court in the form of a restraining order for protection from domestic abuse.”
Many more states offer a patchwork of housing protections, including specific laws that prevent applicants from being excluded based on a history of being a domestic violence victim or protect residents from being evicted because of the actions of their abusers.
Check local laws even in states where there’s no statewide ban on discrimination against domestic violence survivors. For example, Pennsylvania’s fair housing law doesn’t list domestic violence status as a protected class, but the city of Philadelphia bans discrimination based on “domestic or sexual violence victim status.”
Coach’s Tip: Though only a few state and local fair housing laws specifically cover domestic violence survivors, many argue that discrimination against women who are victims of domestic violence violates federal law, which bans discrimination based on sex.
Rule #9: Comply with Laws Banning Discrimination Based on Other Characteristics
Some states ban discrimination based on other characteristics, such as HIV status, lawful occupation, political beliefs or affiliation, or student status. In Washington, D.C., for example, the law adds a host of other protections, including family responsibilities, political affiliation, matriculation, personal appearance, and place of residence or business. Two states—California and Massachusetts—ban discrimination based on genetic information. And in California, the law has been interpreted to prohibit discrimination based on arbitrary characteristics.
Meanwhile, local fair housing laws often include additional protections. In New York City, for example, the law bans discrimination based on alienage or citizenship status. A proposal to add statewide protections based on citizenship or immigration status is under consideration in Washington.