Housing discrimination takes place when an individual or a group is treated adversely based on a legally protected characteristic such as their race, sex, religion, familial status, or disability. Housing discrimination is illegal and contributes to the inequity in the quality of housing a person can obtain. Although discrimination is illegal, many landlords continue to act prejudicially in overt and covert ways. While many cases of discrimination go unreported, in 2016, over 28,000 housing discrimination complaints were made nationwide, and over 90% of those complaints concerned rental transactions. As most complaints of housing discrimination pertain to renting a property, tenants should be aware of what laws exist to protect them from unjust acts.
What are the federal and state laws that govern housing discrimination?
The Fair Housing Act (FHA) is the federal law that prohibits housing discriminating on the basis of race, color, national origin, religion, sex, familial status, and disability. 42 U.S.C § 3604. The U.S. Department of Housing and Urban Development (HUD) enforces the Fair Housing Act.
In the state of California, the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act (Unruh Act) are the laws that govern housing discrimination. The California Department of Fair Employment and Housing (DFEH) enforces both of these laws. The FEHA conveys broader protections than FHA because it prohibits discrimination based on race, color, national origin, religion, sex, familial status, disability, as well as source of income, gender, gender identity, gender expression, sexual orientation, marital status, ancestry, or genetic information of that person. Cal. Gov’t Code § 12955. And the Unruh Act prohibits discrimination based on sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. Cal. Civ. Code § 51.
Does the City of San Francisco have housing discrimination laws?
The City of San Francisco has its own laws governing discrimination that add more categories of characteristics to the federal and state laws. Landlords cannot treat a tenant adversely or unequally based on that tenants actual or perceived race, color, ancestry, national origin, place of birth, sex, age, religion, creed, disability, sexual orientation, gender identity, source of income, weight, or height. S.F., Cal., Police Code § 3304.
In addition, the San Francisco Rent Ordinance prohibits discrimination against a tenant 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. S.F. Cal., Rent Ordinance § 37.10B(a)(9).
Do the Cities of Berkeley and Oakland have housing discrimination laws?
Similar to San Francisco, Berkeley and Oakland have their own housing discrimination laws that expand on the federal and state protected categories. In the City of Berkeley, it is unlawful to discriminate based on a person’s race, color, disability, religion, sex, familial status, national origin, sexual orientation, marital status, ancestry, age, and source of income. Berkeley, Cal., Mun. Code §§ 13.31.010. And, the City of Oakland has expanded its protected categories to include persons with Acquired Immune Deficiency Syndrome (AIDS) and AIDS-related complex (ARC). Oakland, Cal., Mun. Code § 9.40.050.
What acts are considered to be housing discrimination?
Landlords cannot discriminate against tenants or prospective tenants based on a protected characteristic in any of the following ways:
- Refusing to sell, rent, or lease.
- Refusing to negotiate for a sale, rental, or lease.
- Saying that housing or an apartment is not available for inspection, sale, or rental when it is, in fact, available.
- Denying or withholding housing accommodations.
- Providing inferior housing terms, conditions, privileges, facilities, or services.
- Harassing a person in connection with housing accommodations.
- Canceling or terminating a sale or rental agreement.
- Providing segregated or separated housing accommodations.
- Placing an advertisement regarding the rental or sale of any housing accommodation
that indicates any preference or limitation based upon race, color, religion, sex, national origin, ancestry, or any other protected characteristics.
How can a tenant tell if a housing advertisement is discriminatory?
Discriminatory advertising laws apply to both written and oral forms of advertising and include flyers, signs, brochures, billboards, applications for rent, emails, photographs, illustrations, and also applies to statements made to the tenant or prospective tenant in person or over the phone. 24 C.F.R. § 100.75. The law also applies to online ads. Id. It is illegal for a landlord to expresses a preference for or limitation on a renter because of a protected characteristic, such as race, sex, or religion. Id.
Statements such as “no kids allowed”, “English speakers only”, “Caucasian community”, “able-bodied only”, and “must be Christian” are discriminatory because these terms express specific preference for a certain group of people or limits certain groups based on protected characteristics.
It is not discriminatory to say “no illegal drug use” and “service animals only.” It is perfectly legal to prohibit drug use by a tenant if the drug in question is illegal. And, there are no laws that require a landlord to allow a pet, other than a service animal as a reasonable accommodation for a person who suffers from a disability.
There are many possible ways a landlord can discriminate against tenants in their advertisements, and courts will look at such claims on a case-by-case.
How do some landlords use online advertisements to discriminate against prospective tenants?
With over five million advertisers on Facebook, and with an average of 1.5 billion active daily users, the social media platform is a powerful venue to promote products such as apartments for rent or houses for sale. But, what if advertisers on the site discriminate by blocking certain categories of people from seeing their ads? The U.S. Department of Housing and Urban Development (HUD) alleges Facebook allowed home sellers and landlords to do just that.
HUD has filed a complaint against Facebook that alleges its advertisement practices violate the Fair Housing Act (FHA) by permitting advertisements that discriminated against specific potential renters and homebuyers based on their race, sex, religion, disability, and other characteristics. The complaint states that the platform’s targeted advertising tools invited its “advertisers to express unlawful preferences by suggesting discriminatory options.” For example, home sellers and landlords could choose to show housing-related ads to either only men or women, and they could block users interested in specific topics such as “assistance dog” or “parenting”. Advertisement targeting tools also allowed home sellers and landlords to block rental and sale ads from displaying in specific zip codes.
While Facebook states that the claim against them is meritless, other online companies previously accused of discrimination have cited the 1996 Communications Decency Act (CDA) to claim immunity from liability. The Act essentially says that online platforms that allow third parties to post material cannot be held liable for a post that is discriminatory. 47 U.S.C § 230. However, it has been determined that when a website’s users are required to answer questions in order to access services, the website provider is not immune under the CDA from liability because they become “more than passive transmitters of information” and are instead actively providing content. Fair Housing Council of San Fernando Valley v. Roommates.com LLC., 521 F.3d 1157, 1166 (9th Cir. 2008). If Facebook attempts to assert they are immune from liability under the CDA, they will likely not be successful. The platform was not merely passively allowing landlords to post discriminatory housing advertisements. Instead, Facebook’s ad tools allowed for landlords to check certain boxes to refine their advertisements in order to specifically and purposefully exclude certain protected groups of people.
The purpose of the Fair Housing Act is to ensure equal housing opportunities for all. If HUD’s allegations are true, Facebook’s practices are contrary to the law. For now, there has been no determination of liability, and the company has denied any wrongdoing.
Housing discrimination goes beyond advertisements.
While HUD’s claim against Facebook centers on the company’s targeted ad practices, tenants should be aware that housing discrimination goes beyond advertisements. Whether a landlord’s attempt to discriminate against a tenant is overt or covert, landlords count on tenants not knowing and not understanding the law.
If my landlord refuses to accommodate my disability, is that housing discrimination?
The Fair Housing Amendments Act (FHAA) defines discrimination as “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). It “imposes an affirmative duty on landlords to reasonably accommodate the needs of” persons with disabilities not only with regard to physical accommodations but also with regard to the administrative policies governing rentals. United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir. 1994).
Is my use of medical marijuana a protected characteristic under the law?
California state medical marijuana laws directly conflict with federal law. Currently, there is no protection for medical marijuana users under the Fair Employment and Housing Act (FEHA), a federal law. While a landlord cannot discriminate in renting property based on a disability and must provide a reasonable accommodation to a tenant for a known disability, it is unlikely that a tenant may seek a reasonable accommodation from their landlord to smoke marijuana under the FEHA. No court has directly addressed this issue yet.
The California Legislature recently introduced a bill (AB 2069) that would amend the FEHA and create a protected category for employees with a medical marijuana card. While the bill prohibits employers from discriminating against medical marijuana users, it follows that the bill will also have an impact on whether tenants will be able to request a reasonable accommodation from their landlord. The bill is still in committee.
To read more about a tenant’s right to smoke cigarettes or marijuana in their unit, please click here: Smoking in an Apartment Building.
Can a landlord refuse to rent to me if I have children?
In most instances, refusing to rent to tenants with a child or children is illegal as familial status is a protected characteristic. Some common stated reasons landlords give for not renting to families is that children make too much noise, cause too much damage, and are a general nuisance. Or a landlord will only rent a ground floor apartment to a family because of the noise children might make on an upper floor. In both of these cases, the landlord’s actions would be discriminatory.
There are some limited exceptions that allow a landlord to prohibit children in a unit. For example, a landlord can refuse to rent a studio apartment to a family with five kids because the family exceeds the allowable legal occupancy. Another exception is that a landlord could prohibit children from living in a complex that is designed senior citizen housing.
Are there are any exemptions to the Fair Housing Act for rental units?
Yes, there are some limited exceptions to the law. The following residential units and facilities are exempt from portions of the FHA (but see the next section on how these are affected by California law):
- Senior housing: Housing may be restricted to people 62 years old or older and 55
years old or older in cases where at least one occupant per unit is 55 and at least 80 percent of the units are occupied by people ages 55 or older. 42 U.S.C. 3607(b)
- Religious organizations: Housing sponsored by a religious organization may be
restricted to members of that particular religious organization, provided the religion doesn’t discriminate in its membership policies. 42 U.S.C. 3607(a)
- Private clubs: An organization that restricts its membership may provide restricted
housing to its members, as long as it does not offer housing to the general public. Id.
- Single-family housing: The sale or rental of a single-family house is exempted from the
rules of the Fair Housing Act if the owner does not own more than three units at one time, and neither a broker nor discriminatory advertising are used. 42 U.S.C. 3603(b)(1).
- Owner-occupied housing: Multifamily housing of two to four units, where one of the
units is owner-occupied, is exempt from fair housing laws. 42 U.S.C. 3603(b)(2).
Do the Federal FHA exemptions apply in California?
The Supremacy Clause found in Article VI of the U.S. Constitution declares that federal law is the supreme law of the land. But, when state law provides more protections than those found under the federal law, state law will apply.
The California FEHA exemptions differ from the Federal FHA. California’s exemptions take precedent over the federal exemptions as they provide more protections against discrimination. California’s exemptions apply to the following situations: (a) refusal to rent in an owner-occupied single-family home, where the owner does not rent to more than one individual and the owner does not use discriminatory statements, notices, or advertisements, (b) where a preference for same-sex roommates is stated in a shared living situation, and (c) housing operated by an organization or private club that limits its members. Cal. Gov’t Code § 12927(c)(2). The first two exemptions apply to rental housing while the last could apply to both rental housing and housing for sale. California law prohibits discrimination for all other housing transactions (sale, rental, and otherwise) and explicitly does not include the same exemptions for single-family housing and owner-occupied housing present in the Federal FHA.
When city discrimination laws, such as those in San Francisco, Berkeley, and Oakland, are silent on exemptions, state law will apply.
In addition, it is important to point out that regardless of the federal FHA and state FEHA exemptions, the 1866 Civil Rights Act permits no exemptions with respect to race. It is illegal to discriminate on the basis of race for any and all housing transactions.
What are the impacts of housing discrimination?
Unequal housing opportunities are a reality in the Bay Area. Housing discrimination has a disparate impact on protected classes of people, and this impact extends beyond the rental market. For example, sellers have been known to discriminate against purchasers, and banks have been accused of discriminatory lending practices. Discrimination, whether it is against a renter or a purchaser, contributes to housing segregation, which is only one of the many effects on society. Being limited to living in inferior housing can affect a person’s quality of life, and access to employment opportunities, health care, and good schools. Studies have also shown that individuals who experience discrimination report higher levels of stress.
What should a tenant do if they suspect they are being discriminated against?
Tenants alleging discrimination can file a complaint with the California Department of Fair Employment and Housing (DFEH) or the San Francisco Human Rights Commission (HRC). Tenants can also file a complaint in civil court. Before taking any of these routes, a tenant facing discrimination should contact an experienced tenant rights attorney to discuss what action is best for their situation.
If a landlord has discriminated against a tenant, aside from fines and penalties for violating the law, the landlord could be liable to a tenant for monetary damages. And, a finding of bad faith discrimination against a tenant that lives in a unit covered under the San Francisco Rent Ordinance may include money damages of not less than three times the actual damage suffered by the tenant discriminated against, including damages for mental or emotional distress.
For more information on housing discrimination civil claims, please click here to read the following article: Housing Discrimination Claims.
If you are the victim of housing discrimination call Tobener Ravenscroft LLP to speak to an experienced tenant attorney.