What You Should Know About State and Local Fair Housing Laws
This month’s lesson focuses on compliance with state fair housing laws, a key factor in effective fair housing training. Usually, our focus is on federal law—since it applies nationwide and covers groups long recognized as needing fair housing protections. But to fully protect your community, it’s necessary to look beyond federal law to comply with any applicable state and local fair housing laws.
Nearly all states—and many local governments—have adopted their own laws banning housing discrimination. Most simply mirror federal law by banning discrimination based on the seven federally protected characteristics, but 22 states have added fair housing protections for characteristics not currently protected under federal law.
In this lesson, we’ll review the most common types of these additional fair housing protections—along with an updated checklist of the additional characteristics protected under the law of each state. Then we’ll answer 11 frequently asked questions (FAQs) about state and local fair housing requirements. Finally, you can take the COACH’s Quiz to see how much you’ve learned.
WHAT DOES THE LAW SAY?
The federal Fair Housing Act (FHA) bans housing discrimination based on seven characteristics: race, color, national origin, religion, sex, disability, and familial status. The FHA applies nationwide, so communities must comply with the law, regardless of where they are located.
In addition, communities must comply with applicable state and local laws, many of which have expanded fair housing protections to cover other 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, source of income, military status, status as a domestic violence victim, and even genetic information—have been added more recently.
To avoid fair housing trouble, it’s important to understand these additional state or local fair housing requirements. Take a look at the checklist here to see which ones apply in your state.
COACH’s Tip: This month’s state-by-state checklist provides a snapshot of current fair housing laws, but you should check with your attorney or local apartment association for any changes since publication—and to get updates on future developments in state or local laws affecting your community.
11 FAQS ABOUT STATE AND LOCAL FAIR HOUSING LAWS
FAQ #1: Does My State Prohibit Discrimination Based on Marital Status?
Nearly half the states prohibit housing discrimination based on marital status, which generally means being single, married, divorced, or widowed. Under these laws, it’s unlawful to exclude or otherwise discriminate against applicants or residents because of their marital status. Examples include showing a preference for married people, refusing to rent to applicants who are divorced or separated, or requiring single applicants pay higher rent rates than married applicants.
Find out whether your state has adopted a ban on marital status discrimination—and if so, what it covers. Make sure you understand how your law defines “marital status” and when it applies. In most states, the law doesn’t define marital status, but there are a few that do. For instance, Alaska’s statute bans discrimination based on marital status and “changes in marital status,” but it doesn’t prohibit the sale, lease, or rental of classes of real property commonly known as housing for “singles” or “married couples” only. And in North Dakota, the law bans discrimination based upon “status with respect to marriage,” but it doesn’t prevent “a person from refusing to rent a dwelling to two unrelated individuals of opposite gender who are not married to each other.”
In some states, the marital status rules generated some controversy when landlords raised religious objections to renting to unmarried couples who wanted to “cohabitate”—that is, live together. In the courts, results were mixed. In some, courts ruled that the law banning discrimination based on marital status doesn’t require owners to rent to unmarried couples when doing so violates their religious beliefs. In others, courts ruled that state laws banning discrimination based on marital status prevent landlords from turning away unmarried couples who want to live together.
More recently, marital status laws have taken on new significance with respect to the rights of same-sex couples, particularly in light of the growing trend toward recognizing same-sex marriage. Indeed, new HUD rules applicable to federally assisted housing banning discrimination based on sexual orientation and gender identity also protect marital status. Even in states that don’t ban discrimination based on sexual orientation, fair housing advocates sometimes rely on state laws protecting marital status to pursue discrimination claims by same-sex couples.
FAQ #2: Does My State Ban 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 age 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.
FAQ #3: Does My State Ban 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.
More recently, HUD has taken the position that ancestry is included in the federal ban on discrimination based on national origin. In a 2012 memo on immigration, HUD stated that national origin discrimination means treating people differently because of their ancestry, ethnicity, birthplace, culture, or language. Consequently, it’s a violation of federal law to deny people housing opportunities because they or their family are from another country, because they have a name or accent associated with a national origin group, because they participate in certain customs associated with a national origin group, or because they are married to or associate with people of a certain national origin.
FAQ #4: Does My State Prohibit Discrimination Based on Creed?
To supplement the federal ban on discrimination based on religion, many states have adopted fair housing protections based on creed or in some statutes, “religious creed.”
Though both religion and creed are often undefined in federal and state laws, some 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 are not 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.
FAQ #5: Does My State Ban Discrimination Based on Sexual Orientation and Gender Identity?
Currently, 21 states and the District of Columbia have adopted fair housing protections based on sexual orientation—all but four also cover gender identity or expression. Sometimes, the term “transgender” is used to refer to gender identity and gender expression.
It’s important to get legal advice on 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 treat sexual orientation and gender identity as separate protected characteristics—with separate definitions for these terms. This is often the case when lawmakers added identity to existing laws protecting sexual orientation. In June, for example, Delaware amended its fair housing law to add gender identity to current protections for sexual orientation. In separate sections, the law defines “sexual orientation” to mean heterosexuality, homosexuality, or bisexuality; gender identity is defined as “a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth. Gender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that gender identity shall not be asserted for any improper purpose.”
In contrast, some states list only sexual orientation as a protected class, but cover both sexual orientation and gender identity. That’s because the law defines the term “sexual orientation.” For example, Colorado law lists only sexual orientation—but 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.”
FAQ #6: Does My State Prohibit Discrimination Based on Source of Income?
Fair housing laws in 12 states and the District of Columbia prohibit 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.
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, but source-of-income laws in many states make it unlawful to refuse to rent to Section 8 voucher holders. In Massachusetts, for example, the law bars communities from discriminating against individuals who receive public assistance or rent subsidies, including Section 8 housing vouchers. In contrast, California law bans discrimination based on source of income, including public assistance—but not Section 8 vouchers.
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. Last year, for example, lawmakers in Oregon amended the state’s fair housing law, which bans discrimination based on source of income. Up until the law was changed, it specifically excluded federal housing subsidies under the Section 8 housing program. Effective Jan. 1, 2014, the new law expands source of income protections to include Section 8 rent subsidies and any other local, state, or federal housing assistance.
FAQ #7: Does My State Ban Discrimination Based on Military Status?
Currently, five states have adopted some form of fair housing protections based on military status. The laws generally 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 only honorably discharged veteran or military status.
FAQ #8: Does My State Ban Discrimination Based on Domestic Violence?
At present, state laws offer a patchwork of housing protections for domestic violence victims. A few states have amended fair housing laws to cover domestic abuse victims or those who have obtained protection orders against the perpetrator. Many more have enacted specific laws to 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.
FAQ #9: Does My State Prohibit Housing Discrimination Based on Genetic Information or Other Characteristics?
A growing trend among states is to prevent employers from discriminating against current and prospective employees based on “genetic information,” but so far, only two states—California and most recently, Massachusetts—have added similar provisions to state fair housing laws.
Meanwhile, some states ban discrimination based on other characteristics, such as HIV status, lawful occupation, political beliefs or affiliation, student status, personal appearance, or arbitrary personal characteristics.
FAQ #10: What Do I Need to Know About Local Fair Housing Laws?
In addition to federal and state law, communities must comply with any applicable local laws banning housing discrimination. Many county and municipal governments have added additional protections not currently required under state or federal fair housing laws, and it’s incumbent upon you to know what laws apply to your community. Last year, for example, many local governments adopted measures to ban discrimination based on sexual orientation and gender identity, as well as source of income, often in states that don’t offer these protections.
FAQ #11: Where Can I Learn More About My State and Local Laws?
Check with your attorney or local apartment association to find out about state and locals laws applicable to your community. You can get some general information on your own, but the laws can be complicated so it’s a good idea to get legal advice about the specifics.
To learn more about state law, visit the Web site of the government agency that handles housing discrimination complaints in your state. Some states have a fair housing commission dedicated to handling housing discrimination claims. In others, there’s a state agency that’s responsible for all types of discrimination claims. And in some states, the attorney general’s office handles these types of claims.
Most of these agencies will list the protected classes under both federal and state law. Just make sure to focus on housing discrimination. In some states, the protected classes apply across the board, but in others, there’s a significant difference in what’s covered in the laws banning discrimination in public accommodations (such as hotels and restaurants), employment, and housing.
For local requirements, you may check with the local municipality or local apartment association. Many provide information online about local fair housing requirements.
If your company owns communities in more than one municipality within a state—or in more than one state—then you’ll have to find out about all applicable state and local fair housing laws.
COACH’S Tip: Depending on where you’re located, HUD’s Web site is one place to find out about state and local government agencies responsible for fair housing compliance. The Web site lists names and contact information for state and local agencies in 38 states and the District of Columbia that receive funding to enforce fair housing laws under HUD’s Fair Housing Assistance Program at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/partners/FHAP/agencies.
- Fair Housing Act: 42 USC §3601 et seq.
F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 South Plymouth Court, Ste. CBA-800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.
Editor’s Note: Special thanks to Prof. Caruso and clinical intern Essie Carrasquillo at the John Marshall Law School Fair Housing Legal Support Center and Clinic, for their assistance in researching state fair housing laws.
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|January 2014 Coach's Quiz|