What Kind of Housing Discrimination Is Illegal?

The federal Fair Housing Act of 1968 and the federal Fair Housing Act Amendments Act of 1988 (the "Acts") prohibit discrimination on the basis of:

• race or color
• religion
• national origin
• familial status or age (includes families with children under the age of 18 and pregnant women)
• disability or handicap, and
• sex (includes gender identity and sexual orientation).

The Acts apply to all aspects of the landlord-tenant relationship. A landlord may not:

• advertise or make any statement that indicates a limitation or preference based on race, religion, or any other protected category
• falsely deny that a rental unit is available
• set more restrictive standards for selecting tenants or refuse to rent to members of certain groups
• before or during the tenancy, set different terms, conditions, or privileges for rental of a dwelling unit, such as requiring larger deposits of some tenants or adopting an inconsistent policy of responding to late rent payments, or
• terminate a tenancy for a discriminatory reason.

Federal antidiscrimination laws are administered by the Department of Housing and Urban Development (HUD). You can find out the details about how to file a fair housing complaint on its website.

Race or Religion

Overt discrimination against persons of a certain race or religion ("No Black people allowed") is unusual but, incredibly, does still occur. Far more common is subtle discrimination that is accomplished by indirect methods. For example, the landlord who turns away every Black appli­cant is discriminating just as much as the one who announces that none need apply. And an apartment ad that says "safe Christian community" violates federal law, since applicants might reasonably conclude that Christians are preferred as tenants.

National Origin

Discrimination based on national origin is illegal, whether it's deliberate or carried out indirectly. For instance, an ad that offers special discounts to members of the Italian-American Club would be a likely candidate for a discrimination charge. And landlords cannot require proof of citizenship or immigration papers from applicants of one ethnicity but not from others, since doing so places a burden on one group that is not imposed on everyone else. And in California, Colorado, and New York City, it's illegal to ask any applicant or tenant about immigration or citizenship status.

Familial Status or Age

Landlords are not allowed to explicitly or indirectly turn you away based on your family status or your age.

Discrimination Against Families

While some landlords don't like renting to tenants with children, fearing the noise and wear and tear that kids might cause, the Acts prohibit discriminating on this basis. A landlord may not legally turn away or evict a tenant because they have children or because an applicant or tenant is pregnant. Even if the landlord has a worthy motive, such as believing that children won't be safe in the building or the neighborhood, it is illegal to deny the tenancy on that basis or to make other discriminatory moves such as steering families to certain parts of the property (usually the back).

Some landlords try to get around the laws prohibiting discrimination against families by setting unreasonably low occupancy limits, such as only two people for a two-bedroom unit. This practice is illegal, as it has the effect of excluding families. Federal law (in this case, a memorandum written by the Department of Housing and Urban Development) has established minimum occupancy standards that regulate how low an occupancy can go and still be legal. In general, landlords must allow at least two persons per bedroom. Landlords can be more restrictive only in rare instances, when they can show that legitimate business reasons justify a more restrictive standard. For example, a policy of only three persons in a two-bedroom unit might pass muster if the landlord can prove it is truly based on the limitations of the plumbing system or some other aspect of the building's infrastructure.

Age Discrimination

The Acts do not expressly ban discrimination based on age. Nevertheless, it is definitely forbidden under the broader prohibition against discrimination on the basis of familial status.

A landlord cannot refuse to rent to an older person or impose special terms and conditions on the tenancy unless these same standards are applied to everyone else. If you have excellent references and credit history, a landlord has no legal basis for refusing you, even if you are 85 and rely to some degree on the regular assistance of a nearby adult child or friend. (Of course, a landlord could legally give the rental to someone else with equal or better references or financial stability.) However, if your current landlord reveals that you suffer from advanced senility to the point that you often wander into the wrong apartment, frequently forget to pay the rent, or are unable to undertake basic housekeeping chores, the prospective landlord can refuse to rent to you based on this age-neutral evidence that you are not likely to be a stable, reliable tenant.

Disability

Federal law prohibits discrimination against people who:

• have a physical or mental disability that substantially limits one or more major life activities—including, but not limited to, hearing, mobility and visual impairments; chronic alcoholism (but only if it is being addressed through a recovery program); mental illness; intellectual disability; being HIV-positive, having AIDS or AIDS-Related Complex
• have a history or record of such a disability, or
• are regarded by others to have such a disability.

Mental or Emotional Impairments

If you had, have, or appear to have mental or emotional impairments, a landlord cannot use this as a reason to deny you a rental or otherwise discriminate against you. If you cannot meet the good-tenant criteria that the landlord applies to all applicants (such as good references from previous landlords and no prior evictions), you may be rejected on that basis—but not on the basis of your mental health status.

Discriminatory Questions and Actions

Landlords are not allowed to ask you whether you have a disability or illness, or ask to see medical records. And no matter how well intentioned, the landlord cannot make decisions about where and how you will live on the property that they wouldn't make if you didn't have a disability. For example, if there are two units for rent—one on the ground floor and one three stories up—the landlord must show both units to an applicant who uses a wheelchair unless the applicant asks to see only one.

The Rights of Tenants With Disabilities to Live in an Accessible Place

Federal law protects tenants with disabilities after they have moved into a rental unit as well as during the application process. Landlords must reasonably accommodate the needs of tenants with disabilities, at the landlord's own expense. This means that a tenant with a disability can expect the landlord to adjust rules, procedures, or services to a reasonable degree in order to provide the tenant with an equal opportunity to use and enjoy the dwelling unit or a common space. Examples include providing a parking space for a tenant who has mobility issues and accepting a guide or service animal in an otherwise "no pets" building.

However, landlords need not undertake changes that would seriously impair their ability to run their business, such as installing an elevator to the third floor to allow a tenant with mobility issues to live there.

Fortunately, where a landlord's legal duty to reasonably accommodate the needs of a tenant with a disability ends, the obligation to allow the tenant to modify the living space may begin. Tenants with disabilities have the right to modify their living space, at their own expense, to the extent necessary to make the space safe and comfortable. There are two caveats to this rule:

1. The landlord is not required to allow the tenant to make major structural alterations.
2. If the modifications will make the unit unacceptable to the next tenant, the tenant with a disability must agree to undo the modifi­cation when moving out. The landlord has the right to insist that the tenant put money in an escrow account to cover the eventual cost of returning the unit to its original condition.

Examples of modifications undertaken by tenants with disabilities include the lowering of countertops, installation of a ramp, or repositioning the light switches.

Landlords are entitled to ask for proof that the accommodation or modification the tenant has requested will actually address the tenant's situation—without it, the landlord has no way of knowing whether the request is legitimate or a ruse to obtain special treatment.

Tenants with disabilities can ask their physician, therapist, counselor, or any other third-party professional who knows them and understands their situation for a letter attesting that what the tenant is asking for will meet your needs. To protect the tenant's privacy, the tenant can explain to the physician or other writer that there's no need to explain the disability. The writer need only certify that the tenant is under their care and that the proposed changes are appropriate for the situation.

Limited Protection for People Recovering From Drug or Alcohol Addiction

Federal fair housing law extends limited protection to two carefully defined groups:

• People recovering from an addiction to alcohol: Those who actively and regularly partici­pate in a medically based treatment or AA program

• People who were formerly addicted to drugs: Includes people who have prior convictions for illegal drug use (but not for drug dealing or manufacture).

It is important to remember that, despite these protections, the past of a person recovering from alcohol or drug addiction might legally serve as the basis for a denial of housing. For example, if you are recovering from alcohol addiction and have bad credit, a spotty employment history, or negative references from your previous landlords, a landlord may reject you for these reasons just as readily as any other applicant with these flaws. What a landlord cannot do is reject a prospective tenant solely on the basis of their status as someone recovering from a drug or alcohol addiction.

Sex

You cannot be denied a place to live (or have special rules imposed on you) solely because you're female or male. Even well-intentioned policies are off-limits—for example, fearful that single women are more likely to be burglarized and assaulted than male tenants, a landlord cannot require single females to live in upper-story apartments, even if, in fact, those units are less prone to break-ins.

Aside from gender discrimination, the Acts also protect against discrimination on the basis of gender identity and sexual orientation.

Sexual harassment is another form of unlawful sex-based discrimination. For example, it's illegal to refuse to rent to a person who resists the landlord's sexual advances or to make life difficult for a tenant who has resisted such advances.

Property Exempt from Federal Antidiscrimination Laws

Unfortunately, not every rental is covered by the federal fair housing laws. The following types of property are exempt:

• owner-occupied buildings with four or fewer rental units

• single-family housing rented without the use of advertising or without a real estate broker, as long as the landlord owns no more than three such homes at any one time

• certain types of housing operated by religious organizations and private clubs that limit occupancy to their own members, and

• with respect to age discrimination only, housing reserved exclusively for senior citizens. There are two kinds of senior citizen housing exempted: communities where every tenant is 62 years of age or older, or "55 and older" communities in which at least 80% of the occupied units must be occupied by at least one person 55 years or older.

Fortunately for some tenants, however, many state fair housing laws cover properties or situations that are exempt under federal law. For example, owner-occupied buildings with four or fewer rental units are exempt under federal law but are protected under California law. Check with your state fair housing agency for details.