Fair Housing Act Application to Race and Gender - Module 4 of 5

Fair Housing Act Application to Race and Gender

Racial Discrimination and the FHA

From the time of its original passage, the Fair Housing Act has prohibited discrimination concerning the sale, rental, and financing of housing based on race, color, religion and national origin. As explained by the United States Department of Justice, one of the act’s main objectives was the prevention of racial discrimination, which was widely prevalent in the housing industry prior to and during the civil rights movement of the 1960s.[1] For example, in 1924, the National Association of Real Estate Board’s Code of Ethics stated that a “Realtor should never be instrumental in introducing into a neighborhood a character of property or occupancy, members of any race or nationality, or any individuals whose presence will clearly be detrimental to property values in that neighborhood.”[2]

This type of systematic racial discrimination and segregation exemplified the need for the FHA. From rental arrangements and real estate sales to government entity violations, most pattern and practice cases brought by the DOJ involve allegations of discrimination based on race or color. The FHA’s prohibition on national origin discrimination includes discrimination based on place of birth or the location of ancestor’s origin. As the fastest growing population in the United States, Hispanic families have experienced increased incidents of housing discrimination in recent decades, as reported by the DOJ. National origin cases also commonly involve Native Americans, Eastern Europeans, and immigrants from Southeastern Asia.

Jones v. Mayer, decided in 1968, was a landmark decision following passage of the FHA.[3]  The petitioner sought an injunction based on the property owner’s refusal to sell him a home solely due to his being African American. The District Court dismissed the complaint and the Court of Appeals affirmed the dismissal, ruling that the statute under which the civil rights action was brought was only applicable to state action and not actions by private sellers. On appeal, the Supreme Court reversed, holding that Congress could legally regulate the sale of private property in order to prevent racial discrimination. The court concluded that “42 U.S.C. § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment” as the Court called such discrimination “badges and incidents of slavery.”

Since then, courts have defined and examined the various circumstances that constitute housing discrimination. In Alexander v. Riga, the Third Circuit overturned a lower court decision, finding that the owners of a Pittsburgh building violated the FHA when they refused to rent an available unit to an African American couple.[4] Punitive damages were also a central issue in this case. Punitive damages are granted in excess of compensatory damages and they are generally awarded for the purpose of deterring the wrongdoer from repeating their egregious behavior.[5] The trial court refused to provide instruction on punitive damages because the jury did not order compensatory damages for the aggrieved parties. In reviewing the trial court’s actions, the appeals court held that “beyond a doubt, punitive damages can be awarded in a civil rights case where a jury finds a constitutional violation, even when the jury has not awarded compensatory or nominal damages.” This means that parties found in violation of the FHA may be ordered to pay punitive damages whether or not compensatory damages are granted. Punitive damages requests have since become routine in FHA actions.

Discriminatory Tactics in Real Estate Sales

Many early race discrimination in real estate cases resulted from systematic processes aimed at maintaining racial segregation and denying minorities the opportunities to own property in communities of white property owners. Covenants are mandates that are included in property deeds and legally enforceable on the buyer.[6] They typically run with the land, meaning that all subsequent purchasers will also be held to the directives of the mandate. Buyers who fail to abide by the covenant may be forced to forfeit their rights in the property.

The HUD website provides an example of a historical race-related covenant:

"No person of African, Japanese, Chinese, or of any Mongolian descent shall be allowed to purchase, own, or lease said real property, or any part thereof, or to occupy, except as servants."[7].

The 1917 case, Buchanan v. Warley, precipitated the prevalence of racial covenants.[8] The court unanimously ruled that a Louisville zoning ordinance prohibiting African Americans from moving into specific neighborhoods violated the 14th Amendment’s “due process” clause. It also ruled that it violated the freedom to contract by interfering with the sale of private property between whites and blacks. The decision’s focus on government actions, while ignoring private sales, facilitated the use of racially-restrictive covenants. A decade later, the US Supreme Court formally upheld the legality of racial covenants in Corrigan v. Buckley, when they held that a covenant restricting the sale of certain properties to African American buyers in a Washington DC community could legally void a sales contract.[9] By 1940, almost 80% of properties in Chicago and Los Angeles County included racial covenants to bar African American buyers from purchasing them.[10] Even though these covenants have been consistently found in violation of the FHA, some have persisted. As recent as 2000, California legislators found it necessary to pass a law prohibiting the use of racially-restrictive covenants in real property agreements.[11]

Though covenants have been ruled to violate the FHA, other acts that encourage racial segregation have remained. Steering occurs when real estate agents try to channel minority buyers away from neighborhoods of majority white property owners. The underlying reason is generally the belief that the potential buyer will be considered unwelcomed or unacceptable to the current residents of the community because of the buyer’s race or national origin. Steering has been ruled in violation of FHA.

Another tactic for refusing housing opportunities based on race is redlining. With origins back to the 1930s, redlining occurs when lending institutions designate minority neighborhoods as high-risk and refuse to provide mortgage loans in the area. In 2018, HUD approved a conciliation agreement between North Dakota property owners, a mortgage lender and an appraisal company.[12] The complainants alleged that the mortgage company refused to refinance their properties and the appraisal company refused to conduct appraisals because the properties were located on a Native American reservation. Under the agreement, the mortgage lender was required to pay $30,000 to each plaintiff and fund a loan subsidy program to benefit borrowers on Native American reservations. They were also mandated to provide $240,000 for home ownership education and outreach to Native Americans. The appraisal company was required to revise its policies and cease contracting with any individual appraisers who refuse to work on properties located within reservations.

Gender Discrimination and the FHA  

In 1974, gender was added to the list of classes protected under the FHA, making it unlawful to discriminate in housing based on gender.[13]  This prohibition includes rentals and sales of housing. In a 2011 case, HUD charged a Wisconsin woman with violating the FHA for her refusal to rent her home to a single woman. According to the complaint, when the woman called to inquire about the rural property, the landlord refused to show her the property because she was a single woman with no man "to shovel the snow."[14] Throughout HUD’s investigation, the landlord continuously attempted to support her stance, stating that “she believed a single woman would not be able to handle the seclusion and the snow removal, and that she didn't want the woman calling her all the time to come out to fix things or to plow her out.”  

In addition to blatant acts of housing discrimination against women, there are other common housing practices that have also come under scrutiny for their disparate impacts on women. United States vs. Kelly involved a landlord’s seemingly honest concerns about the safety of single women living in his housing unit.[15]  In a denial notice to a female applicant, the landlord stated that she “decided to go with a bachelor.” As a result, HUD filed a complaint against the landlord based on allegations that the landlord “refused to rent after the making of a bona fide offer, or refused to negotiate for the rental of, or otherwise made unavailable or denied… because of sex.”

FHA Protections Against Sexual Harassment

In 2017, HUD implemented a nationwide campaign to address widespread allegations of sexual harassment in housing. As explained by the agency, the enforcement program is “aimed at landlords who create an untenable living environment by demanding sexual favors from tenants or by creating a sexually hostile environment for them.”[16] There are two types of sexual harassment allegations. The first is “quid pro quo” and it occurs when a housing provider or employee, agent or contractor conditions access to housing or housing-related services on a victim's submission to sexual conduct.[17] The second type is “hostile environment” sexual harassment, occurring when “a housing provider… or in certain circumstances another tenant, engages in sexual behavior of such severity or pervasiveness that it alters the terms or conditions of tenancy and results in an environment that is intimidating, hostile, offensive, or otherwise significantly less desirable.” Sexual harassment claims may allege one or both of these harassment types. They also do not require an actual housing or economic loss.

In United States v. Hatfield, HUD brought a complaint against a North Carolina resident who rented, sold and financed homes.[18] The agency alleged that the defendant “sexually harassed actual and prospective female residents and borrowers in violation of the Fair Housing Act.” The allegations of harassment against him included “unwelcome sexual comments and advances, engaging in unwanted sexual touching and groping, offering tangible housing benefits in exchange for sex acts and taking or threatening to take adverse housing actions against women who object to his harassment.”[19]  

It is important to note that the FHA includes protections for both male and female victims of sexual harassment. In addition, property owners and agents are responsible for ensuring that all employees and agents also refrain from engaging in such acts.  

People who believe they have been harassed by property owners have several avenues for recourse. They can file complaints directly with HUD or a state/local housing agency. Under HUD guidelines, the victim has one year from the occurrence to file a complaint directly with the agency.[20] Once an investigation is done, HUD may choose to file official charges against the harassing party should evidence support the allegation. This may result in an administrative hearing on the matter. A victim may also have the option of filing a private suit in state or federal court, subject to statute of limitation guidelines. There is no requirement for sexual harassment victims to report their grievances to the property owner, but HUD suggests that a letter or written report can be useful for creating a record of events.  

Once an allegation of sexual harassment has been made, the FHA prohibits property owners from punishing the victims in any way, including the denial of housing, rent increases, withholding maintenance, bringing law suits or eviction. If this type of retaliatory action is substantiated, the victim may have grounds for additional legal action.[21] United States v. Cao involved allegations of retaliation against female renters who complained about sexual harassment.[22] The DOJ filed a complaint against a Kansas property manager based on allegations that he unlawfully sought to evict the complainants as punishment for reporting his acts of sexual harassment.

Other Gender-Related Concerns in Housing Discrimination

According to HUD, women with lower incomes are particularly susceptible to the negative impacts of sexual harassment, due to their limited housing options.[23] As reported by HUD, female-headed households make up a disproportionate percentage of housing assistance recipients. These households constitute more than 75% of public housing and make up over 80% of households with housing vouchers. Therefore, acts of discrimination against low income housing residents often overlap with gender discrimination.

Several states include source of income in fair housing regulations. For example, Oklahoma’s fair housing statute makes it unlawful to “refuse to consider as a valid source of income any public assistance, alimony, or child support, awarded by a court, when that source can be verified…”[24]  States, such as California, Minnesota, Utah and New Jersey have similar fair housing protections. In some cases, local governments have included source of income in fair housing guidelines, even when the states have not. There are at least 50 localities across the country with source of income ordinances in place.[25]

In 2014, the city of Austin, Texas passed a source of income discrimination ordinance.[26] The Austin Apartment Association filed a lawsuit aimed at repealing the ordinance. In response, the Texas state legislature overturned the ordinance, and passed a law prohibiting any locality within the state from passing source of income discrimination legislation.[27] In 2017, the Inclusive Communities Project of Dallas filed suit against the state of Texas, seeking to overturn the state statute as an FHA violation.[28] The suit was dismissed in 2018 on procedural grounds.[29]

Gender housing discrimination may also extend to mortgage decisions, where women are faced with more stringent requirements for approval than similarly suited male applicants. For example, in United States v. First Federal Bank of Florida, the lending bank included a requirement that two pregnant applicants return to work prior to the completion of their maternity leave for their mortgage to be approved.[30] Reaching a consent agreement, the lending institution was prohibited from “the adoption, performance, or implementation of any policy, practice, or act that results in unlawful discrimination against an applicant on maternity or paternity leave in the taking, processing, underwriting, or closing of a submitted or potentially submitted residential mortgage loan application. More specifically, First Federal shall not require that an applicant on maternity or paternity leave have physically returned to work before a loan can close.”

The 2013 Violence Against Women Act expanded housing protections to survivors of domestic violence, dating violence, sexual assault and stalking.[31] Because women are often the victims of these crimes, the law is largely regarded as a significant gain against gender housing discrimination. The law makes it a violation to treat victims of these crimes any differently than victims of other crimes. In 2013, HUD settled two complaints under this law.[32] The first was a woman who asserted that her lease renewal was denied solely based on previous law enforcement visits to her home for domestic-violence related reports. The second involved a woman who complained that she was denied a new rental based on a history of police visits for domestic violence. Under the terms of the settlement agreement, the complainants received $13,500 and the landlords agreed to participate in fair housing training and submit to monitoring by HUD.

While the FHA does not specifically provide protections for members of the LGBTQ community at the federal level, HUD is still charged with investigating allegations of violations without regard for sexual orientation or gender identity.[33] In addition, those who identify as LGBTQ may have valid FHA complaints under the Act’s gender protections. For example, if a landlord prohibits a transgender woman from dressing in women’s clothing in the common areas of her apartment complex, this may be a violation of the FHA’s prohibition against gender discrimination, which according to HUD, “includes discrimination based on non-conformity with gender stereotypes.”

In our last module, we’ll turn to fair housing protections based on other criteria, including religion, disability, family status and sexual orientation.