Religion, Disability, Familial Status, and Sexual Orientation - Module 5 of 5

Religion, Disability, Familial Status, and Sexual Orientation

Religious Fair Housing Protections  

The Fair Housing Act prohibits housing discrimination based on religion, including bias against members of a certain religion, as well actions that have discriminatory effects on religious people. For example, United States v. Hillman Housing Corporation was resolved through a consent decree after an application to purchase an apartment was denied because of the applicant’s faith.[1] The Department of Justice consent decree required the defendants to pay damages and follow FHA standards to prevent future acts of discrimination.

Religious protections are applicable to housing sales and leases, along with the "terms and conditions" of the sale or rental.[2]. People of all religions must be afforded the same privileges and benefits of the lease or sale as any other buyer or renter. Therefore, if renters are allowed to decorate their apartment doors, they cannot be prevented from using religious items in their decorations. If a condominium complex has a common room for resident use, no resident looking to hold a religious activity can be prohibited from using the room.

Bloch v. Frischholz was a federal case involving the “terms and conditions” of a sale and a condominium’s rule against displaying any items outside of the individual units.[3] A Jewish family brought suit against the condominium board after they were prohibited from displaying a religious symbol outside of their door - a common practice in the religion. The Seventh Circuit Court of Appeals first held that the FHA was inapplicable to acts occurring after the sale of the property was completed and observed, in any case, that the condo’s rules were applied across the board and did not target any particular religion. The court acknowledged that such regulations could violate the FHA if they resulted in a disparate impact on certain religions, though the details of this particular case were not found to have met those requirements.[4]

While HUD reports that religious-based housing discrimination is less common than race or national origin, it is still a prevalent problem resulting in numerous court cases and decisions.[5] Following the September 11, 2001 terrorist attacks, the DOJ brought suit against the San Francisco Housing Authority based on numerous allegations that the Authority failed to act to stop threats and violence against Muslim tenants.[6] The case ended in a consent decree, that required compensation to the victims and new regulations to address civil rights complaints.

Religious housing discrimination also commonly involves zoning ordinances implemented by local governments. When these rules amount to bias against a specific religion, there may be an FHA violation. For example, assume a group purchases property for the purpose of starting a church. After buying the property, they are informed that they must obtain zoning approval before using the property as a place of worship. The county denies the permit application even though approval had been previously granted for several similarly situated non-religious uses.

The Islamic Society of Basking Ridge v. Township of Bernards involved efforts by an Islamic society to build a mosque in a New Jersey township.[7]  The locality repeatedly denied the group’s zoning application based on minor details, to include parking lot size. The DOJ stepped in and filed suit against the township on behalf of the Islamic Society. The case ended in a consent decree whereby the plan for construction was allowed to move forward and the township was ordered to pay $3.25 million in damages and undergo religious freedom training.[8]  

The FHA exempts certain religious groups from these rules under limited circumstances. For example, non-commercial housing operated by a religious organization can be reserved for people of the same religion. So, a Catholic organization that leases apartments at a property that is not being commercially operated may legally limit occupancy or give preferences to Catholics. In Intermountain Fair Housing Council v. Boise Rescue Mission [9], the Ninth Circuit held that a Christian-based drug treatment program and homeless shelter did not violate the FHA’s religious exemption when it gave preference to members of its own religion. The court stated, “No one disputes that Defendant is a bona fide Christian organization that does not restrict its membership on account of race, color, or national origin. And no one disputes that Defendant operates its homeless shelters and drug treatment program for ‘other than a commercial purpose.”

When acts of religious housing discrimination are suspected, victims can file a complaint with a regional HUD office or file a private lawsuit in state or federal court. The DOJ only files lawsuits when an investigation identifies a pattern or practice of discrimination, meaning that more than one person has been discriminated against by the offending party, or when there are discriminating policies in place.[10]

Disability-Based Discrimination  

People with disabilities are protected from housing discrimination based on numerous federal acts, including the FHA and Section 504 of the Rehabilitation Act, along with Titles II and III of the Americans with Disabilities Act.[11] These protections are applicable to most private housing transactions, state and local government housing, public housing complexes and any federally-assisted housing-related program. Many disability housing discrimination cases involve “reasonable accommodations” issues.

The FHA requires reasonable accommodations for disabled people, which means “a change, exception, or adjustment to a rule, policy, practice, or service.” The Fair Housing Act makes it “unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling and public and common use areas.” In addition, the Fair Housing Act prohibits “a housing provider from refusing to permit, at the expense of the person with a disability, reasonable modifications… if such modifications may be necessary to afford such person full enjoyment of the premises.” Some common examples of reasonable accommodations include installation of a wheelchair-accessible ramp into a building or grab-bars in a bathroom. It may also include lowering the entry threshold of a unit or allowing for the use of a necessary service animal.  

Arnal vs. Aspen View Condo Association examined allegations of disability discrimination in a private condominium based on the alleged denial of reasonable accommodations.[12] The plaintiff was the owner of a condominium unit who rented his unit to a tenant. He alleged that the condominium association improperly denied a reasonable accommodation to its “no dogs” policy, which prohibited him from allowing his tenant to keep a service dog that would assist with her epilepsy. He also alleged that the condo association retaliated against him by issuing fines when he allowed the tenant to keep the service animal. The court held that the plaintiff had pled a plausible claim against the defendant.  

An important aspect of disability protections offered by the FHA are the various types of disabilities included. Federal nondiscrimination laws define a person with a disability as any “(1) individual with a physical or mental impairment that substantially limits one or more major life activities; (2) individual with a record of such impairment; or (3) individual who is regarded as having such an impairment.”[13] This includes observable disabilities, like blindness or mobility limitations, as well as invisible disabilities, like mental illness or neurological impairments. Disability protections may even apply when there is simply a perception of a disability. For example, a gay man is evicted based on his landlord’s belief that he may infect fellow tenants with HIV/AIDS. According to HUD, the landlord’s actions may violate the Fair Housing Act’s prohibition against disability discrimination, which incorporates discrimination against people who are believed to have HIV/AIDS.[14]

Disability-based housing discrimination also extends to the process of real estate sales. United States v. Evolve Bank & Trust centered on allegations of discrimination in the banking industry.[15]  Applicants with income from Social Security benefits were routinely required to provide documentation from a physician stating that their disability incomes would continue. The case was resolved through a consent decree, which required the bank to make monetary payments to affected mortgage applicants and borrowers. It also required the lending institution to revise its policies with regard to disability income and provide relevant training to its employees.[16]

The other major aspects of FHA protections against disability discrimination center on property accessibility and zoning laws that affect disabled communities. Under the FHA, “both privately owned and publicly assisted multifamily housing built for first occupancy after March 13, 1991, regardless of whether it is for sale or rental, must meet the design and construction requirements of the Fair Housing Act.”[17]. If a building with four or more units contains an elevator, all of the units must meet FHA design and construction requirements. For buildings without elevators, owners are only required to ensure that the ground-floor units meet FHA requirements. If an owner fails to design and construct FHA covered multifamily housing in accordance with the Act’s requirements, they may be found in violation of the act. In Baltimore Neighborhoods, Inc. v. Rommel Builders,[18] an action was allowed to proceed based on the allegation that a three-story multi-family condominium complex was not wheelchair accessible.  

In terms of land use and zoning laws, the FHA, along with the ADA and Section 504 of the rehabilitation Act, prohibits state and local land use and zoning laws, policies and practices that amount to disability-based discrimination.[19] In Horizon House Developmental Services v. Township of Upper Southampton,[20]  the court ruled that there was substantial evidence of discriminatory intent when a locality enacted a zoning ordinance that required group homes to be separated from other dwellings by at least 1,000 feet. Upon reviewing the history of the ordinance, the court determined that local officials imposed the requirement in response to community fears and concerns about property value.

Fowler v. Borough of Westville provides another example of discriminatory actions on the part of a local government.[21] The court found that a locality’s excessive police activity and restrictive regulatory actions were specifically designed to force residents out of a substance abuse recovery home. The court pointed to statements made by local officials regarding their objections to the residences.

Family Status-Based Discrimination 

Familial status is one of the protected classes under the FHA. While states may have differing definitions of family status, according to the DOJ, “The Fair Housing Act, with some exceptions, prohibits discrimination in housing against families with children under 18.” This means that parties may not refuse to rent or sell based on the presence or numbers of children within a family. In United States v. Apartment and Home Hunters, the DOJ brought a suit against a housing referral agency based on its practice of screening out prospective tenants based on familial status.[22] The matter ended in a consent decree where the agency was required to pay $180,000 in damages, participate in mandatory training and ban on the use of an occupancy standard more restrictive than two persons per bedroom.[23]  

The FHA also prohibits the imposition of special requirements or conditions on tenants or residents with children. Some examples include a landlord’s refusal to allow children into certain areas of the building or unreasonable restrictions on the total number of people who may reside in a dwelling. In United States v. MSM Brothers,[24] the complaint alleged that a mother and infant child were told by a landlord that the apartment complex had a policy of placing families with children under the age of 10 in first floor units only, and that no first floor units were currently available, nor was there room on the waiting list for first floor units.[25] The DOJ entered a settlement agreement requiring the defendants to pay the complainant $25,000 and undergo fair housing training, and to draft a new non-discrimination policy in compliance with the FHA.[26]  

There are some limited exceptions to the family status protections provided by the FHA. For example, facilities and communities officially designated as Housing for Older People (55 years of age or older) may be able to legally deny housing to families with children. As long as the housing meets the requirements set forth in the Housing for Older Persons Act of 1995, it may legally operate as "senior" housing.

Sexual Orientation-Based Discrimination 

Though the FHA does not provide specific protections against sexual orientation-based discrimination, victims of this type of housing discrimination may have various avenues for recourse. The FHA may apply if the person who identifies as LGBTQ experienced some form of discrimination under one of the Act’s protected classes. Additionally, HUD’s Equal Access Rule “requires equal access to HUD programs without regard to a person’s actual or perceived sexual orientation, gender identity or marital status.” HUD provides the following example:

“An underwriter for an FHA-insured lender is reviewing a loan application by two males; both incomes are being used as the basis for the applicants’ credit worthiness. The underwriter assumes the applicants are a gay couple and, as a result, denies the application despite the fact that the applicants meet all requirements for the loan. This may violate HUD’s Equal Access Rule, which prohibits FHA-insured lenders from taking actual or perceived sexual orientation into consideration in determining adequacy of an applicant’s income.”[27]

Smith vs. Avanti examined allegations of gender discrimination from a transgender complainant.[28] The case involved a property owner who refused to rent a unit to a couple that included a transgender applicant, based on what the owner described as their “unique relationship.” The court noted that the complaint was not seeking protection based on sexual orientation, which is not available under the FHA, stating that the case was instead brought on the basis of gender stereotyping. As such, the court ruled that there was discrimination under the FHA based on gender, stating that “in referring to the Smiths ‘unique relationship’ and their family’s ‘uniqueness,’ Defendant relies on stereotypes of or with whom a woman (or man) should be attracted, should marry, or should have a family.”[29]      

If the circumstances surrounding alleged discrimination against a person identifying as LGBTQ do not fit one of the protected classes, available remedies are limited unless the state includes sexual orientation in its fair housing laws. According to HUD, 22 states and the District of Columbia include sexual orientation in fair housing laws.[30] In addition, laws in 21 states and D.C. include language banning gender identification and expression in housing discrimination. For example, Minnesota’s Fair Housing policy is to “further fair housing in all its programs so that individuals of similar income levels have equal access to Minnesota Housing programs, regardless of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, familial status, gender identity or sexual orientation.”[31] California’s fair housing law also provides protection for sexual orientation, as well as gender identity and gender expression.[32] People in these states can initiate fair housing complaints by contacting a state or local human rights or housing agency for direction. They may also initiate lawsuits in applicable courts.

Thank you for participating in LawShelf’s course on the Fair Housing Act. We hope that you now have a better understanding of the reach and ramifications of this important civil rights law and how to comply with it. We encourage you to take advantage of other LawShelf courses as well. Best of luck and please let us know if you have any questions or feedback.