Fair Housing FACTS

Written by STEVEN WILLIAMS

Fair housing laws prohibit landlords, agents, managers, real estate brokers, and salespersons from discriminating against a person or harassing a person because of protected characteristics. These laws protect just about all areas of residential housing, including real estate sales, mortgage lending, homeowner associations, and of course, renting. As it relates to rental housing, a landlord cannot make oral or written statements, or use notices or advertisements that indicate any preference, limitation, or discrimination based on protected characteristics. Doing so could be discriminatory.

Protected Characteristics

The list of protected characteristics covered by fair housing laws is long and continually expanding. When federal fair housing laws were passed more than 50 years ago, they identified only five protected characteristics: race, color, religion, sex, and national origin. Now, with the expansion of federal fair housing laws and the passing of state and local fair housing laws, they identify nearly 30 protected characteristics.

In addition to the initial five protected characteristics, fair housing laws also protect persons with the following characteristics: disability; family status; age; gender; gender identity; gender expression; genetic characteristics or information; pregnancy/childbirth; sexual orientation; medical condition; ancestry; family day care operators; citizenship; immigration status; source of income; military or veteran status; primary language; person with AIDS, transgenderism; height and weight; sexual preference; place of birth; and occupancy by a minor child. This is not even an exhaustive list of protected characteristics. Other characteristics may also be protected.

Applicability of Fair Housing Laws

Fair housing laws prohibit discrimination before, during, and throughout the entire duration of a residential tenancy. Landlords need to observe these laws from the moment they post a rental listing, through the rental application process, and continuing through the date the tenant vacates. A landlord cannot engage in any discriminatory conduct or practices. For instance, a landlord cannot do any of the following:

• Advertise or make any statement that indicates a limitation or preference based on a protected characteristic;

• Falsely deny that a rental unit is available;

• Set more restrictive standards for selecting tenants or refuse to rent to persons with protected characteristics;

• Before or during the tenancy, set different terms, conditions, or privileges for rental of a dwelling unit;

• Terminate a tenancy for a discriminatory reason; or

• Refuse to make a reasonable accommodation or allow a reasonable modification for a person with a disability.

Even if the protected characteristic doesn’t happen to be a protected one, it is generally a good practice for a landlord not to treat someone differently based on a particular characteristic.

Tenant Discrimination Claims

In California there are two main bodies of law that govern housing discrimination. These laws are known as the California Fair Employment and Housing Act and the Unruh Civil Rights Act. The California Department of Fair Employment and Housing (DFEH) generally administers state fair housing laws and claims.

Tenants often report discrimination claims to the DFEH. The DFEH must then investigate the claim and determine whether discrimination has occurred. If it determines discrimination did occur, then it will issue the tenant a right to sue letter. However, the DFEH often encourages the parties to mediate and resolve the discrimination claim. Many of these matters settle before a DFEH determination is made or lawsuit filed.

Reporting discrimination claims to the DFEH is not mandatory. Instead, tenants may simply file discrimination lawsuits against their landlords. And because these discrimination lawsuits may allege violation of local, state, and federal laws, they can be filed in either state or federal court.

Anytime a landlord is sued by a tenant, the landlord should promptly determine whether the applicable property insurance policies cover the claims made in the lawsuit. The landlord may forward the lawsuit to the insurance carrier and request the carrier to provide a defense to the lawsuit.

Liability

Potential liability for violating fair housing laws includes fines, compensation to the tenant for economic losses and emotional distress, punitive damages, cease and desist orders, and even having to pay the tenant’s attorney’s fees. San Francisco landlords may face further liability for violating the San Francisco Rent Ordinance. The Rent Ordinance provides:

“No landlord, and no agent, contractor, subcontractor or employee of the landlord shall do any of the following in bad faith: . . . Violate any law which prohibits discrimination based on actual or perceived race, gender, sexual preference, sexual orientation, ethnic background, nationality, place of birth, immigration or citizenship status, religion, age, parenthood, marriage, pregnancy, disability, AIDS or occupancy by a minor child;”

Bad faith discrimination that violates the Rent Ordinance subjects a landlord to treble damages, which means that the compensation awarded to a tenant in a lawsuit is tripled. Because of the potential liability for discrimination claims, and the myriad other claims tenants frequently assert against landlords, it is critical for landlords to maintain landlord insurance policies at all times with broad coverage and ample liability limits.

Discrimination Examples

While all discrimination is prohibited, some fair housing issues tend to present themselves more frequently than others during a landlord’s day to day operation. Examples of these situations include rental listings, Section 8 tenancies, service and emotional support animals, and medical marijuana. The following illustrates how fair housing laws may apply to these particular situations:

Rental Listings

Nearly every residential tenancy begins with a rental listing followed by a rental application. Fair housing laws protect persons reading these listings and applying for these rental units. Various public interest groups peruse these listings and test landlords by actively looking for discriminatory advertisements and practices. They then assert discrimination claims against unsuspecting landlords. Landlords must be cognizant of this and have nondiscriminatory policies and practices.

A rental listing doesn’t even need to be overtly discriminatory to run afoul of fair housing laws. If a listing merely has the effect or impact of discouraging a person with a protected characteristic from applying for a rental unit, then it is likely discriminatory.

For example, a listing for a tiny 450-square-foot studio may advertise that it is “perfect for a single tenant.” While this may be an accurate depiction and sound innocuous, the effect of the