Civil Rights

 Federal Laws

      The Federal Civil Rights Act of 1866 - Prohibits discrimination based on race without exception. The United States Civil Rights Act of 1968, and its Amendments in the Act of 1988, are commonly called The Federal Fair Housing Act of 1968 - These laws prohibit housing discrimination against certain classes of individuals.
      In a significant 1968 case, the Supreme Court decided Jones v Mayer where the Court upheld the Civil Rights Act of 1866. The ruling prohibits all racial discrimination, private or public, in the sale and rental of property. The decision was important because the 1968 law, as it was written, exempts homeowners who rent a part of the home they live in, and certain groups who, for example, may wish to rent to members of their own religion or club.
      Federal Fair Housing Laws, specifically the1968 Fair Housing Act, prohibit discrimination if it is based on:

• Race
• Religion
• National Origin
• Color
• Disability (mental or physical)
• Sex
• Familial Status

      Note that smokers, convicted criminals, poor folks, or pet owners are not mentioned by federal law.  We should also note that, contrary to popular understanding, familial status in federal law prohibits only discrimination against children and does not, in itself, require renting to unmarried couples and those of particular sexual orientation.  However, familial status does mean that you can't use safety or other issues as a reason to discriminate against children.
      The most obvious example of discrimination is refusing to rent to a member of a protected class.  But housing discrimination can take many forms, including: offering different lease terms to members of protected classes; using discriminatory or preferential language in an advertising; treating certain classes of applicants preferentially or segregating protected classes into separate areas of a rental property or community.

       The Fair Housing Act prohibits landlords from taking any of the following actions based on any protected class:

• Advertising or making any statement that indicates a preference based on group characteristic, such as skin color
• Falsely denying that a rental unit is available
• Setting more restrictive standards, such as higher income, for selecting tenants
• Refusing to rent to members of certain groups
• Applying different screening criteria to some applicants
• Refusing to accommodate the needs of disabled tenants, such as allowing a guide dog, hearing dog or service dog
• Setting different terms for some tenants, such as adopting an inconsistent policy of responding to late rent payments
• Terminating a tenancy for a discriminatory reason

State & Local Laws

      State and local Housing Discrimination Statutes and fair housing laws sometimes provide even broader coverage.  They may prohibit discrimination based on age, occupation, source of income, political affiliation, marital status, sexual preference, ancestry, and/or military background.  To our knowledge, no state includes smokers.
      It is extremely important that landlords know and follow the fair housing laws of their state and local area as well as the better known federal laws.

Americans with Disabilities Act

      Individuals with disabilities have a right to equal housing opportunities under both the Fair Housing Act (FHA), which made them a protected class, and the Americans with Disabilities Act (ADA) of 1990, which requires that a landlord make economically feasible "reasonable accommodations" and "reasonable modifications" for disabled tenants. Fair Housing requires that a landlord not discriminate based on a tenant applicant's mental or physical handicap. The American's with Disabilities Act goes much further. Those covered by the Act include: any physical, mental and emotional impairment that limits one or more of life's major activities.
      Economically feasible usually means that the tenant must bear the cost of reasonable modifications.  The tenant must also perform the modification in accordance with applicable laws and codes.  Finally, the tenant must restore the unit to its original or an equivalent state if the landlord desires.  The landlord can usually require a special deposit or bond to assure that it will be properly restored.
      Reasonable accommodation might include to an issue such as assigning the closest parking space to a mobility impaired tenant even though it is your policy to not assign spaces to tenants.
      Reasonable modifications would likely include widening of doorways, construction of ramps, and installation of grab bars in bathrooms.  Additions or other major structural changes would probably not be included. 
      The ADA can even come into play regarding your pet policy.  The benefits of pet ownership to physical and emotional health in people has been well researched and documented.  As a result, legislation is in place in the U.S. that allows seniors in federally funded housing to have pets.  A HUD administrative judge ruled in November 96 (HUD vs. Dutra, No HUDALJ 90-93-1753-8 (HUD Offices of Admin. Law Judges 11/12/96)) that the managers of a California apartment community with a no pets policy violated the Fair Housing Act by attempting to evict a disabled tenant because he had a cat. The resident's physician said the cat served a therapeutic purpose and therefore, in the eyes of the judge, the apartment manager's failed to make a "reasonable accommodation".

Disabled Americans are protected by both the Federal Fair Housing Act and The American's with Disabilities Act. We have several pages on the subject under a web called Barrier Free. You may also wish to visit the U.S. government pages on: Fair Housing Requirements for People With Disabilities 

Exemptions To Federal Fair Housing Laws

Religious Organizations & Private Clubs
      A restriction on the sale or rental of property owned by groups may be limited to their members, if they meet the federal guidelines. Anyone who seeks to use this exception to Fair Housing Law should confirm it with competent legal counsel first, as an error in interpretation could prove costly.

Senior Housing
      A landlord can only discriminate against tenants with children if the property meets the following criteria:

• The housing is intended solely for persons 62 years old or above.
• 80% of the units have at least one occupant 55 years old or above and the building has age restrictions.

      HR660, passed in December 1995, eliminated a previous federal requirement that qualifying senior housing must provide significant facilities like community dining, health care or recreation to allow for restrictions against children.  Qualified senior housing advertising can state: "No Children Allowed", or "Over 55 Building," but it cannot discriminate against other protected classes under the Fair Housing Law.

Small Landlords
      There are exemptions for the following categories of small landlords:

• Owner occupied 4 units or less
• Owner of 3 units or less and have not sold or rented other units in the past 24 months

      You need to understand that neither exception is available if a real estate agent is utilized and that advertising cannot be discriminatory.  You also need to understand that second small landlord exception is very restrictive.  If you have rented one of your 3 units, or rented or sold any other units within the past 24 months, the exception is not available to you.  Finally, even though these exceptions are provided for under The Federal Fair Housing Act of 1968, the exceptions my not be available under state or local laws and one could still be considered to have violated the The Federal Civil Rights Act of 1866.

Complaints & Penalties For Discrimination

      The U. S. Department of Housing and Urban Development (HUD), is the agency that enforces the Fair Housing Act.  State and local offices are listed with HUD's Fair Housing Information Clearinghouse at (800) 343-3442. HUD provides complaint forms, investigates and decides the merits of any discrimination claim.
      Complaints must be filed with HUD within one year of the alleged discrimination.  HUD typically appoints a mediator to negotiate with the landlord and reach a settlement (called a "conciliation").  If a settlement can't be reached, the fair housing agency holds an administrative hearing to determine whether actually discrimination occurred.
      If the discrimination is a violation of a state fair housing law, the tenant can file a complaint with the state agency in charge of enforcing the law. In Michigan, for example, the State Civil Rights Commission deals with complaints. California enforcement of the state's two fair housing laws is through the Department of Fair Employment and Housing.
      In addition to filing a complaint with HUD or a state agency, tenants may file lawsuits directly in federal or state court.  If a state or federal court or housing agency finds that discrimination has taken place, a tenant may be awarded damages, including any higher rent he or she had to pay as a result of being turned down, for example.

• Actual Damages:  Out-of-pocket costs incurred by the complainant as a result of discrimination. They can also include compensation for non-economic injuries like emotional distress and humiliation.

• Civil Penalties:  From $10,000 for the first violation, to $50,000 for any subsequent. If the US Justice Department sues, the civil penalty can reach $100,000.

• Punitive Damages:  These awards have no limit and have been in the millions.

• Injunctions.  An inductive order may prohibit a specific act, or even require some corrective action in the future. For example: the landlord may be required to advertise for and rent to minorities to fill their next vacancies.

• Attorneys Fees:  Fair Housing Laws allow the injured party to receive their attorney fees from the loser.

      It is obvious that discrimination can be expensive. Landlords should protect themselves against such costs by:

• Establish policies, procedures, and guidelines in writing ahead of time and follow them in every case.

• Make sure that all of your actions, policies, and procedures are based upon legitimate, non-discriminatory business factors.

• Have accurate, complete, and available records to demonstrate that these policies, procedures, and guidelines were followed in similar cases.

• Take any complaint seriously.

• Don't hesitate to ask questions or get an explanation from HUD or the agency investigating the complaint.

      The 10 most common fair housing mistakes are:

1. Failure to keep records

2. Inconsistency in the application of rules

3. Retaliation

4. Having an all-adult complex that does not adhere to the guidelines imposed by the Fair Housing Act

5. Violation of familial status laws out of concern for safety

6. Failure to reasonably accommodate a tenant with a disability

7. Failure to clearly convey your commitment to fair housing to manager, rental agents, and tenants

8. Failure to train managers

9. Unreasonable occupancy standards

10. Failure to communicate with the tenants