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Overview of the Fair Housing Act - Module 1 of 5

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Overview of the Fair Housing Act

What is the Fair Housing Act?

The Fair Housing Act is the name given to Title 8 of the Civil Rights Act of 1968. Signed into law by President Lyndon Johnson, the act prohibits discrimination concerning the sale, rental and financing of housing based on race, color, religion and national origin.[1] The passage of the act was an uphill battle for supporters. Congress considered multiple fair housing bills, but failed to pass most of them.

National outcry following the assassination of Martin Luther King, Jr., along with the inability of minority Vietnam War veterans to secure housing in certain areas of the country provided the support necessary to pass the bill. The Department of Housing and Urban Development was charged with implementation of the Act. Within the first year, the agency created the Title VIII operations field book and a formal complaint process that was implemented nationally.  

In 1974, gender was added to the list of classes protected under the FHA. Disability and family status were both added in 1988. In its current form, the FHA prohibits housing discrimination based on race, religion, national origin, sex, disability and family status.[2] In 1995, the Housing for Older Person’s Act further expanded the FHA by amending the requirements to qualify for the ‘‘housing for older persons’’ exemption.[3]

Prior to passage of the FHA, housing discrimination complaints were handled by courts on a case-by-case basis. For example, Buchanan v. Warley was brought before the US Supreme Court in 1916.[4] The National Association for the Advancement of Colored People and an African American resident of Louisville, Kentucky, brought the case to challenge a city ordinance that prohibited the sale of property in some majority-white neighborhoods to African American buyers. The Court unanimously held that the ordinance violated the Fourteenth Amendment and infringed on the contractual freedom of the residents. The Court ruled that “the effect of the ordinance under consideration was not merely to regulate a business or the like but was to destroy the right of the individual to acquire, enjoy, and dispose of his property. Being of this character, it was void as being opposed to the due process clause of the constitution.” Though the decision was considered a victory against racial segregation, it did little to promote widespread housing rights protections because the justices applied the decision to public laws only and not private agreements. As a result, private covenants restricting the sale of property to non-white buyers remained allowable and, indeed, became common in the years following the case.

Establishment of Protected Classes

Protected classes included in the Civil Rights Act included only those based on race, religion and national origin.[5] As amendments were added and new federal legislation was passed, the classifications for protection expanded to those included under the current FHA. All states are required to provide protection against discrimination based on these federally protected classes, but they also can expand their lists to include other groups.   

Many state legislatures have found that the federally protected classes are not inclusive enough to provide adequate fair housing protection and have opted to expand their statewide housing laws to include additional classes. For example, the New York City Human Rights Law includes a broader range of protected classes than the federal FHA. It prohibits discrimination in housing based on actual or perceived age, citizenship status, color, creed, disability, familial status, gender, lawful occupation, lawful source of income, marital status, national origin, partnership status, race, sexual orientation, military service status and status as a victim of domestic violence, stalking or sex offenses. [6]  

Source of income was the most recent class of protections added to New York’s fair housing laws. Signed into law in 2018, the law prohibits housing discrimination against renters who use Section 8 housing vouchers, Social Security income, veterans’ benefits or other non-wage income sources for rental payments.[7]

California’s fair housing law is also substantially more inclusive than FHA protections. The California Fair Employment and Housing Act of 1959 protects people from discrimination by housing providers based on race, color, ancestry, national origin, religion, mental or physical disability, gender, sexual orientation, gender identity, gender expression, genetic information, marital status, familial status and source of income.[8]

The 1982 case of Hess v. Fair Employment & Housing Commission was based on California’s prohibition against housing discrimination based on marital status.[9] The case involved a couple that contracted to rent a duplex and paid a security deposit. Once learning that the couple was not married, the owners refused to go through with the rental and rented it to a similarly situated married couple instead. The Court of Appeals of California affirmed a ruling in favor of the unmarried couple finding unlawful discrimination based on marital status.

The Washington, D.C., Office of Human Rights' fair housing program further expands on the federal list of protected classes.[10] Its inclusion of “personal appearance” protects people from housing discrimination based on style of dress, hairstyles and facial hair. The District of Columbia also prohibits discrimination based on the renter’s enrollment in an educational program, which is particularly useful in cases where landlords refuse to rent to college students. Place of current residence is also included in the D.C. fair housing program, as well as prohibitions against political affiliation discrimination.  

In addition to state expansion of the FHA, localities and cities may also implement more expansive fair housing regulations. Local legislators often create these laws to deal with specific housing discrimination issues in their jurisdictions. While the Wisconsin Fair Housing Council maintains one of the most inclusive fair housing laws in the country, the city of Madison takes the state law a step further by including homeless people in their fair housing protections.[11] The law prohibits discrimination based on “the status of lacking housing including being a resident of transitional housing or a supervised temporary living facility.”

Application of FHA to Government Entities

The FHA applies to private renters and sellers and also to federal, state and local agencies. When making zoning regulations and providing municipal services, these government entities must ensure that they comply with the FHA.  As explained by the Texas Department of Housing and Human Affairs,[12] the FHA makes it unlawful for local governments to:  

·         Make zoning or land use policies that exclude or discriminate against protected persons,

·         Utilize land use policies or actions that treat groups of persons with disabilities less favorably,

·         Act against, or deny a permit for a home because of the disability of individuals who live or would live there, or

·         Refuse to make reasonable accommodations in land use and zoning policies and procedures where such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy housing.

When a local government fails to comply with the FHA, impacted residents may act to hold them legally accountable. For example, in Drayton vs. McIntosh County, the residents of the Gullah Geechee Island of Sapelo in South Carolina- descendants of slaves brought 200 years ago from Africa and the West Indies to work the plantations-[13] brought suit against the county and state for the denial of municipal services, unfair property tax appraisals and unequal zoning ordinances based on racial discrimination.[14] In 1999, the United States District Court for the Eastern District of Louisiana ruled against the locality of Jefferson Parish, Louisiana, for its refusal to allow a group home for adults with Alzheimer’s disease to operate.[15] Though the group home operators correctly filed an accommodation application, the parish refused to consider it based on pressure from members of the community.  

Under some circumstances, localities may make zoning or land use decisions that appear neutral but have the unintended effect of limiting housing freedoms for a protected class. When this occurs, localities may still be held accountable for discriminatory housing practices. The US Supreme Court upheld this finding in the case Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.[16]  The case involved federal tax credits given to developers for the construction of low-income housing. A Texas non-profit organization brought a suit against Texas alleging that the state disproportionately allocated tax credits to projects in majority African American inner-city areas, when compared to majority-white suburban areas. The Supreme Court affirmed a ruling in favor of the non-profit organization based on a determination that “disparate impact” claims are allowable under the FHA. The majority opinion stated that the "recognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: it permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.”

Fair Housing Enforcement

Enforcement of the FHA occurs at multiple levels of government. The process typically begins with a complaint from a citizen who has been negatively impacted by some alleged act of housing discrimination. This complaint may be made at the local government level, through contact with the applicable local agency. It may also be made through the relevant state fair housing agency. Alternatively, people may file their complaint with the regional Department of Housing and Urban Development office in their area. Once a credible complaint is made, the receiving agency will typically take steps to further investigate it. Depending on the nature of the allegation, the investigation process can happen in a few different ways.[17]  

HUD typically assigns one or more investigators to inspect the allegations made in the complaint and can request information, including a timeline of events, location and people who were present at any key meetings or actions. The respondent - the party against whom the complaint is filed - then receives notice from HUD of the allegations and has the opportunity to respond. Investigators may then interview witnesses, gather additional documents, and visit the property in question. Upon completion of the investigation, the complainant and the respondent receive a written report of HUD’s findings.

At any point during the complaint process, the parties may resolve the matter in a matter that is deemed satisfactory to HUD as well as the involved parties. HUD will work with both parties to reach such an agreement, but no party is required to accept a voluntary offer. If the parties do reach a mutual settlement, a HUD officer will prepare a written agreement that all parties sign. HUD then officially closes the investigation but continuously monitors for compliance.   

If no reconciliation is reached, HUD may choose to institute a lawsuit based on the investigation’s findings. It may seek various types of relief, including victim compensation, policy changes, and mandatory training. Administrative cases are handled by the HUD Office of General Counsel and heard by a judge. Cases brought in federal court are brought and pursued by the Department of Justice. HUD charges no fees or costs to the parties alleging discrimination.

HUD Testing Program

For complaints involving a refusal to rent or sell based on a protected classification, HUD maintains a Fair Housing Testing Program that uses undercover “testers” to record their interactions with the accused landlord or property owner. For example, assume a single mother is denied a rental and complains that the denial may have been based on her status as a single mother. The agency may send out testers to the property. Two of them may pose as single mothers and two others as similarly situated single people with no children. If both of the “single mothers” are told that the apartment has been rented, while the people with no children are told that the apartment is still available, HUD may act against the landlord for discrimination.

Other examples of uncovered discrimination include the denial of reasonable accommodations for disability requests and the assessment of higher rental rates for certain populations.  

The HUD tester program was addressed by the US Supreme Court in the 1981 case of Havens Realty Corp. v. Coleman.[18] The Court considered the definition of a “tester” and whether they have standing to file legal action under the FHA. Generally, standing is a requirement that the plaintiff in a civil case show an injury or harm that can be redressed by the case.[19] The issue with testers arises because they are not directly harmed by alleged acts of discrimination. As defined by the Supreme Court, testers are “individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful steering practices.” In finding that testers do have standing to bring FHA suits, the Court asserted that the violation of FHA rights automatically creates standing, even if the violation involves a tester instead of an actual prospective renter. 

Testing programs may be instituted directly through HUD or through private housing advocacy groups. For years, these programs were run with varying procedures and rules. In 2003, HUD issued universal guidelines for Fair Housing and Equal Opportunity testers.[20] Some of the implemented regulations include:  

·         The designation of testers as “anonymous witnesses”;

·         A requirement to provide test and tester details to HUD upon request;

·         The provision of some test details to the respondent once HUD closes the case; and

·         A requirement that all tests applicable to a respondent be provided, even if favorable to the respondent with no showing of discriminatory acts.     

Complaints of housing discrimination are commonly brought by nonprofit and advocacy organizations on behalf of a personally affected individual. The Supreme Court also addressed the standing of these groups in Havens Realty Corp. v. Coleman.[21] The testers in the Haven case were employed by a non-profit organization, which claimed that it had standing to sue because it “had to devote significant resources to identify and counteract the defendant’s racially discriminatory steering practices.” The Court ruled in favor of the organization, finding that its asserted injury adequately provided it with standing to bring suit. The Court, though, held that the organization would have to show demonstrable injury before receiving any financial recovery. 

Many state courts have also allowed such organizations to file complaints and institute legal matters. One example occurred in the case of Metropolitan Milwaukee Fair Housing Council v. Labor & Industrial Review Commission.[22] The Council was a Milwaukee nonprofit organization working to provide equal access housing for low income and minority residents. It brought a complaint against a landlord for an advertisement that stated that it would be “ideal for a couple” (potentially discriminating based on marital status). While the court found in favor of the landlord, citing lack of discriminatory intent, the case demonstrates the ability of community organizations to bring housing discrimination actions.

However, there are some state rulings that cast doubt over the abilities of these groups to continue bringing FHA discrimination law suits. In the 2010 case, La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, the US District Court for the Central District of California ruled that a fair-housing advocacy agency could not “manufacture an injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all.”[23]

In our second module, we’ll turn to the effects of the Fair Housing Act on rentals and rental advertising and look at the types of properties that are exempt from fair housing legislation.

[3] Pub.L. 104–76, 109 Stat. 787, enacted December 28, 1995

[4] 245 U.S. 60 (1917)

[5] Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et seq (1964)

[9] Hess vs. Fair Employment and Housing Commission [1982] Civ. No. 51522 (Court of Appeals of California, First Appellate District, Division Two).

[14] Drayton vs. McIntosh County, S.D. Ga. Oct. 13, 2010

[22] Metro. Milwaukee Fair Hous. Council v. Labor & Indus. Review Comm'n, 173 Wis. 2d 199, 496 N.W.2d 159 (WI Ct. App. 1992)