This month's lesson surveys fair housing protections on the state and local level. Usually, our focus is on federal fair housing law, since it applies nationwide, but most states and numerous local governments have enacted their own fair housing laws that ban housing discrimination. Many have expanded the list of protected characteristics far beyond those covered under federal law.
This month's lesson surveys fair housing protections on the state and local level. Usually, our focus is on federal fair housing law, since it applies nationwide, but most states and numerous local governments have enacted their own fair housing laws that ban housing discrimination. Many have expanded the list of protected characteristics far beyond those covered under federal law.
To prevent fair housing trouble, you must know the law applicable to your community on the federal, state, and local level. Because of wide variations in state and local fair housing laws, it's particularly important to understand all applicable laws if you own or manage communities in more than one state—or multiple locations within a state. Otherwise, you could unwittingly violate state or local law, leaving your community vulnerable to a fair housing complaint, potential damage claims, or civil penalties—not to mention the drain on your resources and damage to your reputation while you defend against accusations of housing discrimination.
To help avoid such problems, we've surveyed current fair housing laws, explaining the most common forms of additional protections available under state or local law. And this month's lesson includes an extra bonus: a table of the additional characteristics protected under state law. This state-by-state table provides a snapshot of current fair housing laws, but you should check with your local apartment association or attorney for any changes since press time—and to get updates on future developments in state or local laws affecting your community.
COACH'S TIP: This lesson primarily reviews state and local fair housing statutes, but communities may be subject to additional requirements based on other state or local laws, such as civil rights legislation and landlord/tenant provisions. Consequently, it's best to consult legal experts in your area to ensure that your community meets all its legal obligations under federal, state, and local laws.
The Fair Housing Act (FHA) bans housing discrimination based on race, color, national origin, religion, sex, disability, and familial status.
In addition, all but a few states—and many local governments—have their own laws with similar provisions, although they vary in how closely they mirror federal fair housing requirements. Federal law provides an incentive for state and local governments to adopt laws with provisions that are "substantially equivalent" to the federal FHA. The advantages include funding availability, local complaint processing under a substantially equivalent law, and opportunities for partnerships that further fair housing goals, according to HUD. At last count, HUD certified fair housing agencies in 40 states to participate in Fair Housing Assistance Program (FHAP) funding.
Additional protected characteristics. Meanwhile, 38 states, the District of Columbia, and numerous localities have expanded fair housing laws beyond race, color, national origin, religion, sex, disability, and familial status.
In many jurisdictions, laws banning housing discrimination based on marital status, age, ancestry, and creed have been on the books for many years.
In recent years, there has been a growing trend for state and local governments to move beyond those traditional characteristics to ban discrimination based on sexual orientation, gender identity or expression, source of income, military status, and status as a domestic violence victim.
Additionally, a few jurisdictions have broadened their laws even further, such as in Massachusetts, where the list of protected characteristics includes genetic information, and in California, where the law bans arbitrary and intentional discrimination based on personal characteristics.
The rules this month will focus on the most common forms of additional protections added by state and local law, starting with traditional characteristics, then moving onto recent trends to add protections for sexual orientation and other characteristics.
At last count, 23 states bar housing discrimination based on marital status, making it among the most common characteristic added by state law to the federally protected characteristics. In general, marital status refers to being single, married, divorced, or separated.
In most states with marital status provisions, it is unlawful to exclude individuals or couples or subject them to discriminatory treatment. Examples include charging a higher rent, requiring a higher income, or imposing different interest rates to unmarried households than to married households, according to Project Sentinel, a California-based fair housing advocacy group. And if married households are allowed to combine their incomes to qualify, then unmarried households must have the same opportunity, the group says.
In a handful of states, landlords have challenged the state laws protecting marital status based on religious objections to renting to unmarried couples of different sexes. In most cases, courts have ruled against the landlords, but the law in at least one state, North Dakota, bans discrimination based upon "status with respect to marriage" but does not prevent "a person from refusing to rent a dwelling to two unrelated individuals of opposite gender who are not married to each other."
Even if your community is located in a state that does not ban discrimination based on marital status, local laws may cover the breach. In Virginia, for example, where state law does not include marital status, the Alexandria City Code extends protection based on marital status and other characteristics.
COACH'S TIP: Regardless of state or local law, it's important to remember that you may not exclude or discriminate against unmarried individuals or couples with children under age 18. Federal fair housing protections based on familial status apply to the parent or parents of children under the age of 18—and others, including pregnant women—regardless of their marital status.
The laws in 21 states and many municipalities ban discrimination based on age, but the laws vary in focus, depending on whether and how they define age.
Although some do not define the term, many statutes define "age" to mean individuals age 18 and older. Consequently, a community could face a discrimination claim by accepting applications from older men, but excluding young men who meet screening requirements simply because their age raises concerns about the prospect of property damage or disruptions from rowdiness or noisy parties.
In contrast, some laws are aimed at protecting older people from housing discrimination, most commonly by defining age to mean individuals who are 40 and over. And in Virginia, the law bans discrimination based on "elderliness," which is defined as being 55 and older. If subject to such laws, a community could be accused of age discrimination by excluding older applicants who meet screening requirements, but who may be approaching retirement age, simply because of concerns about their future financial qualifications.
Federal law bans discrimination based on national origin, but many states and local laws added ancestry to their lists of protected characteristics. Because federal law does not define "national origin," some believed it applied only to the country where the applicant was born—not where his family came from.
To address the issue, some state and local governments added ancestry to ensure fair housing protection based upon the country of origin of the applicant's family. Nevertheless, in a recent blog posting warning against national origin discrimination, HUD officials clarified that the FHA makes it illegal to discriminate in housing against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
Although federal law bans discrimination based on religion, some state and local laws added protections based on creed. A few state laws refer specifically to religious creed, which would indicate it applies to religious beliefs, though not necessarily participation in organized religion. Most laws refer only to creed and do not define the term, leading some fair housing experts to suggest that it may apply to individuals with any sincerely held belief.
This fall, when new laws in Connecticut and Nevada take effect, 22 states will ban housing discrimination based on sexual orientation; of those, 16 will also cover gender identity or gender expression. Even when there is no state-wide ban, numerous county and local governments have added such protections to their fair housing laws.
Many believe those numbers will rise, as advocates press forward with proposals to add protections for sexual orientation, as well as gender identity or expression, to state and local laws across the country. The equal marriage law recently passed in New York suggests that the public in New York and voters in other states and localities may no longer be as resistant to gay rights as they have been in the past, according to fair housing expert F. Willis Caruso, Esq., who is co-executive director of the John Marshall Law School Fair Housing Legal Support Center and Clinic. He predicts that many localities will soon include sexual orientation as a protected class.
If your community is subject to state or local laws banning discrimination based on sexual orientation, it's important to get the details to determine what they cover. The laws vary in the language used, but most define sexual orientation as heterosexuality, homosexuality, or bisexuality. Many cover both actual and "perceived" sexual orientation to extend protection to individuals who are subjected to discrimination based a mistaken belief about their sexual orientation.
Meanwhile, many states have gone further to add protection based on gender identity or expression. In general, "gender identity" refers to a person's innate sense of one's own gender—regardless of the person's assigned sex at birth. "Gender expression" generally refers to external appearance, characteristics, or behaviors typically associated with a specific gender. Sometimes, the term "transgender" is used to encompass both gender identity and gender expression.
Furthermore, some advocates have argued that same-sex couples may be entitled to fair housing protection even if state or local laws don't cover sexual orientation—but do cover marital status. The argument would be even stronger for same-sex couples who have entered into marriages, civil unions, or domestic partnerships in the states that recognize those relationships. The interplay between these laws hasn't been settled by the courts, leading some fair housing experts to recommend policies that ban discrimination against couples—regardless of gender or marital status.
Currently, fair housing laws in 13 states and various counties and municipalities prohibit discrimination based on source of income, a catchall phrase that generally refers to lawful sources of income, such as wages, alimony, and public assistance.
If your community is subject to state or local laws banning discrimination based on source of income, it's particularly important to do your homework when it comes to rent subsidies through the federal Section 8 voucher program. Federal law provides that participation by communities in the Section 8 program is voluntary, and many communities prefer not to participate in the program because of administrative and regulatory requirements.
Nevertheless, a community may be required to accept applicants with Section 8 vouchers, depending on the wording of applicable state or local laws protecting source of income and how the courts have interpreted them. Some laws specifically ban discrimination against applicants receiving federal or state rent subsidies, including Section 8 vouchers. In contrast, others specifically exclude federal rent subsidies, including Section 8. And in a few jurisdictions, courts have been called on to resolve the issue, often with mixed results.
Consequently, it's a good idea to seek legal advice before turning away an applicant with a Section 8 voucher or other forms of rental assistance if your community is subject to state or local laws protecting source of income.
Caruso predicts that source of income and military status may be close together as the next classes to be protected more at the state and local level. As military veterans return home with entitlements to housing and other federal programs, there may be an increased need for protections against discrimination because of their source of income, he says.
Currently, five states and a number of local governments prohibit housing discrimination based on military status, although the laws vary in wording and focus. Some states also include protections to veterans, but some are based on the nature of their discharge. For example, Washington law refers to military status and honorably discharged veterans, but Illinois law refers to military status and "unfavorable discharge from military service."
Depending on where your community is located, you could be subject to various state, county, or local laws aimed at protecting victims of domestic violence or abuse. Although there are some federal protections, Caruso believes that more state and local governments will act to address this growing problem.
Currently, state and local laws banning housing discrimination vary widely—in both who is covered and how the laws address the issue. Some laws refer to victims or survivors of domestic violence or abuse, while others expand protection to victims of other crimes, such as sexual assault or stalking. In addition, some laws also cover individuals who have obtained a protection order against an abuser.
Furthermore, housing protections for domestic violence vary in scope. A few states have amended fair housing laws or targeted the problem with specific laws to ban discrimination against domestic abuse victims or those covered under protective orders. Others have enacted more limited laws—some prohibit eviction of domestic abuse victims because of the actions of their abusers, while others ban the exclusion of applicants with a history as a domestic violence victim.
Depending on where your community is located, you could be subject to state laws banning discrimination based on a wide variety of other characteristics, including HIV status, immigration status, lawful occupation, political beliefs or affiliation, student status, genetic information, personal appearance, or arbitrary personal characteristics.
Meanwhile, some local laws have extended protection based on those and other characteristics, including an arrest or convictions record or refusal to disclose a Social Security number.
As for the future, Caruso predicts an expansion of state and local fair housing laws to address new concerns, such as what to do to prevent housing discrimination against those who use medical marijuana in states, like Michigan, that have sanctioned its use.
Fair Housing Act: 42 USC §3601 et seq.
EDITOR'S NOTE: Special thanks to John Marshall Law School students Rhandi Childress and Winne Monu for their work in researching state fair housing laws.
F. Willis Caruso, Esq.: Co-Executive Director, The John Marshall Law School Fair Housing Legal Support Center and Clinic, 321 S. Plymouth Ct., Ste. CBA-800, Chicago, IL 60604; (312) 786-9842; 6Caruso@jmls.edu.