Almost every rental applicant is legally protected against discrimination in housing. Both federal and state laws protect such broad categories of people that it is easier to say who is not in a “protected class” than who is.
Federal fair housing law protects all but a very short list of persons:
Even these exceptions are subject to limits. “Recovering” addicts in a drug treatment program are considered disabled and protected from discrimination. 24 CFR §100.201(a)(2). So are persons who take drugs legally. See United States v. Southern Management Corp., 955 F.2d 914, 919 (4th Cir. 1992). Those who used to take illegal drugs but no longer do are protected as well.
While transvestites may not be considered handicapped under federal law, California forbids discrimination based on sexual orientation. California Government Code § 12955(a). No cases involving transvestites under this statute have been published but a property owner in California should seek legal advice before relying on the federal exception to refuse to rent to a transvestite.
A property owner cannot assume that mentally or physically disabled tenants are a threat to others or to property. Unless a real threat can be demonstrated, persons with conditions such as impulsive and obsessive-compulsive behavior, psychosis, borderline personality disorder, depression, post-traumatic stress disorder and anti-social personality are all protected. United States v. Massachusetts Industrial Finance Agency 910 F.Supp. 21 (D. Mass. 1996). HIV positive or AIDS patients are also protected by the Fair Housing Act.Baxter v. City of Belleville 720 F.Supp. 720 (S.D. Ill, 1989). The law “clearly prohibits the use of stereotypes and prejudice to deny critically needed housing to handicapped persons.” House Judiciary Committee Report 100-711, 100th Congress, 2nd Session, note 21 at p. 18. Even where there is a threat, the owner or manager should discuss with the tenant or applicant whether it can be overcome with a reasonable accommodation. Roe v. Sugar River Mill Associates 820 F.Supp. 636 (D. N.H. 1993).
How much of a threat does a sex offender pose? There is a difference in the threat of serial rapists or child molesters compared to 18 year olds who have sex with 17 year olds. Judges, juries and even mental health professionals have trouble assessing the risk that someone will be dangerous in the future. See Kelly v. South Carolina 534 U.S. 246 (2002). A property owner’s assessment is likely to be questioned.
While citizenship is not a protected class, discrimination based on national origin is illegal. 42 U.S.C. §3604. Asking persons of one national origin for proof of citizenship but not asking persons of another origin is illegal. See Example 1 in HUD’s “Response to concerns about housing security,” cited earlier. The same problem arises if the property owner asks persons of one race or color for proof of citizenship but does not ask all others. See Espinoza, supra.
Under federal law, discrimination is illegal when it is based on race, color, religion, sex, handicap, familial status, or national origin. 42 U.S.C. § 3604. In California, it is also illegal to discriminate on the basis of ancestry, marital status, age, sexual orientation, source of income or medical condition. California Government Code §12955(a) and 12926. California Civil Code §§51-51.3.
California also prohibits “arbitrary” discrimination. Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142 (1991). When is discrimination considered “arbitrary?” In Koire v. Metro Car Wash 40 Cal.3d 24, 36 (1985) the California Supreme Court held that a car wash could not offer discounts to female customers on “Ladies Day” and a bar could not offer free admission to females on “Ladies Night.” Some promotional discounts are still permissible under the Unruh Act: “The key is that the discounts must be ‘applicable alike to persons of every sex, color, race, [etc.]’ . . . instead of being contingent on some arbitrary class-based generalization.” In the rental housing market, “move-in” discounts are valid, because any new tenant can qualify regardless of sex, color, race, etc.
Distinguishing among these categories can be difficult. What is the difference between “national origin” as used in both federal and California laws, and “ancestry” discrimination which is banned in California? There are no cases that address this. If an applicant is turned down because he is Arab, that is national origin (and perhaps racial) discrimination. If the same applicant is rejected because his grandfather is Osama bin Laden, that could be ancestry discrimination.
Under federal law a “handicap” is a physical or mental impairment which “substantially” limits one or more major life activities. A disability, under federal law, must be evaluated in light of the person's condition using corrective measures. Sutton v. United Airlines 527 U.S. 471 (1999). A severely near-sighted person would not be disabled under this decision if eyeglasses correct his vision.
California’s Unruh Act and Fair Employment and Housing Act provide greater protection for the disabled and unique protection for those with medical conditions. These statutes define a disability as any limitation of a major life activity, even if not “substantial.” California law also considers disability “without respect to any mitigating measures, unless the mitigating measure itself limits a major life activity.” Government Code §§12926 and 12926.1. Section 12955.3 applies this definition to fair housing. These laws protect those with physical and mental impairments which are “disabling, potentially disabling, or mistakenly perceived as disabling or potentially disabling.”
Must a property owner must accept Section 8 housing assistance tenants under this law? No California case has resolved this issue, and decisions are mixed. In Knapp v. Eagle Property Management Corp. 54 F.3d 1272, 1282 (7th Cir. 1995) a federal court of appeals decided that a Wisconsin statute prohibiting source of income discrimination did not require landlords to participate in the Section 8 program. The court reasoned that since federal law makes participation voluntary, an attempt to require participation by state law is pre-empted. Several state courts, however, have ruled the other way, often citing the particular language of the statute of their State. See Comm'n on Human Rights & Opportunities v. Sullivan Associates, 250 Conn. 763, 739 A.2d 238 (1999); Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 725 A.2d 1104 (1999) and Godinez v. Sullivan-Lackey 2004 W.L. 1870995, Fair Housing - Fair Lending L. Rptr. ¶ 18,386 (Ill. App. 2004).
Can a rejected applicant who told the owner she intends to run a day care facility sue for source of income discrimination? A tenant in California has the right to operate a licensed in-home day care facility under Health & Safety Code §1597.40. But that statute does not create a private right of action. Most likely, the facts of each case will determine the outcome. So far no California court has considered the issue of source of income discrimination based on a refusal to allow in-home day care.
Both California and federal law prohibit discrimination against families with children under age 18. Both permit housing restricted to senior citizens when certain requirements are met. Federal law does not otherwise cover housing discrimination based on age. California law does. Civil Code §51.2 says that, except for qualified senior housing, the Unruh Act “...shall be construed to prohibit a business establishment from discriminating in the sale or rental of housing based upon age....” This law applies only in the housing field. Discrimination based on age is not “arbitrary” in other areas. Starkman v. Mann Theatres Corp. 227 Cal. App. 3d 1491, 1496 (1991) approved movie theater discounts for children age 12 or under and for senior citizens.
Why might a landlord want to discriminate based on age? Fair housing agencies compare the percentage of families with children who are tenants of an accused landlord with census data showing the percentage of tenants who have children in the local area. A landlord might decide to improve his statistics and actively favor families with children in rental decisions. While this strategy may reduce claims of discrimination based on familial status, the strategy will backfire since housing discrimination based on age is illegal in California.
Federal fair housing law covers major segments of the population. Anyone who faces discrimination in housing based on their race or color, their religion or lack of a religion, their nationality, gender, their children or their disability can look to federal law for help. Fair housing law protects not only those directly discriminated against, but also affected neighbors, fair housing organizations which can prove they diverted resources because of the discrimination and fair housing testers who never intended to rent the property. Havens Realty Corp. v. Coleman 455 U.S. 363, 373-375 (1982).
In California, protection is even more comprehensive. If you are too young or too old, too gay or not gay enough, if your ancestry is not to the owner’s liking, if you have a disability that does not “substantially” limit a major life activity or a medical condition that does not disable you or that can be corrected, you are still protected by California law.
Fair housing is the law. Property owners must treat everyone equally, and should be ready to prove they did. Ask everyone the same questions. Provide everyone with the same information. Use the same procedures and standards to qualify all applicants. Advertise the property and not the type of people who live there. Offer everyone an equal opportunity to rent all available units.
Be ready to make reasonable accommodations in your policies and to allow reasonable modifications to your property when necessary for disabled tenants and applicants. Keep in mind how broad fair housing laws are. If you have a question, seek legal help before a problem occurs.
Copyright © 2006 Martin S. Snitow Law Corporation. All rights reserved.
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