Principles of Fair Housing Law

National Fair Housing Month (hud.gov) celebrates the passage of the Fair Housing Act in April of 1968. What better time to refresh our knowledge of Fair Housing laws and best practices in rental housing? 

The Fair Housing Act is a nationwide Federal law that prohibits discrimination in the sale, rental, and financing of housing, based on race, color, national origin, and religion. The Act was amended to include protections based on gender, people with disabilities and families with children. In the State of Washington, there are more protections for Creed, Immigration/Citizenship Status, Sexual Orientation, including Gender Identity, Veteran/Military Status, Use of Service Animals, Source of Income (i.e., Section 8) and Marital Status. 

Key Legal Principles

Over the years, fair housing laws have become more complex. As with anything, it is more effective to understand a few key principles of Fair Housing Law instead of memorizing a list of rules.

Principle 1 

Protected Class Discrimination

Primarily, protected class discrimination means to treat a tenant (prospective, current, or past) differently because of their membership in a protected group. This does not mean you must accept any Section 8 participant that applies. If they do not meet a rental criterion such as credit or rental history, you can still deny them based on that. However, you cannot legally advertise “No Section 8” and you cannot turn someone down because you feel working with the Housing Authority is too time-consuming. Learn more at rhawa.org/support-center, by reading the Support Center article, Provide Fair Housing.

Principle 2

Retaliation

It is illegal to retaliate against someone because they exercised a right under the Fair Housing Act, landlord-tenant law, or city rental regulations. That means it is illegal to raise rent, defer repairs, or give a negative reference to a tenant’s future housing provider because they filed a fair housing complaint. If a housing provider takes any adverse action within 90 days of complaint, the guilt of retaliation is presumed and the burden of proof of innocence is on them.

Principle 3

Making Accommodations

What if someone in a protected group needed special allowances in order to enjoy equal housing opportunities? This concept and detailed rules are included in Federal Fair Housing law as it relates to people with disabilities. If a person with mobility issues needs a grab bar installed, you do not always need to pay for it, but you do need to allow it. If they need an Emotional Support Animal (ESA) because of a disability, you need to allow it and you cannot charge pet fees or deposits for the animal, just as you would never do that to someone with a wheelchair. Never ask about or make assumptions about the disability, such as “if they need an ESA, they shouldn’t leave the animal at home when they go out” Perhaps they just need help with anxiety when at home alone at night? Treat the animal as an extension of the tenant – if quiet hours are broken, damage is done, or other tenants are threatened, the tenant can still be held accountable. Even though you need some information to accommodate disabled tenants, they still have a right to privacy and there are specific rules about what you can ask them. Learn more at rhawa.org/support-center, Reasonable Accommodations for Disabilities.

Principle 3.5

Neutral Policies that Have a Disparate Impact on Protected Groups

In many ways, this concept is a way to extend the idea of making accommodations for disabled persons to other protected groups. Just like an unwillingness to make policy exceptions for the disabled, a strict ban on criminal history may unfairly limit housing opportunities for people of color, based on criminal justice statistics in the area. 

In June 2015, the U.S. Supreme Court ruled that these "disparate impact claims" are recognized under the Fair Housing Act. Based on this and results from a study confirming disparate criminal justice treatment in Washington, the Attorney General's office began enforcing HUD guidelines for criminal history screening in 2017. See the Support Center article, Screening for Criminal History.

Washington State and Seattle laws apply similar laws and guidelines for accommodating people in other protected groups. See Support Center articles on Working with Rental Assistance Programs and Screening Without a Social Security Number.

Best Practices

• Now that you hopefully have a better understanding of the basic principles of the law, here are a few best practices you can apply in your day-to-day rental operations.
• Avoid the use of “code words” and discriminatory phrases in ads.
• Use general-circulation advertising media (e.g., not just the church bulletin).
• Display the HUD Equal Opportunity Graphic when you can. Download from hud.gov/library/bookshelf11/hudgraphics.
• Respond to every inquiry the same, preferably with a standard email response.
• Inform all prospective tenants of your standard screening procedures and qualification criteria.
• Take all applications and do not discourage anyone from applying.
• Inform prospective tenants of all available units, not only those you believe would suit their needs. 
• Limit conversations to rental home features, rules of tenancy in the lease, printed screening criteria, rent, move-in costs, and move-in date. Do not ask other “pre-qualifying questions.”
• Avoid small talk with applicants that could be perceived as discriminatory OR preferential. 
• Follow the same screening terms and conditions when new occupants are added to existing tenancies.
• Respond appropriately to accommodation requests at any time during the tenancy.
• Use the opportunity of Fair Housing Month to get more fair housing education for yourself, your employees, family business helpers and anyone else who works with your tenants on your behalf. 
• For more Fair Housing Education:
• Go to our Education + Events Calendar and sign up for the WA Real Estate Fair Housing class to be presented live on Zoom, Wednesday, April 10. This class meets the WA Real Estate Licensing requirement for continuing education. Licensed brokers who attend the class can receive a 3-clock hour certificate by completing a quiz and survey on our ONDEMAND platform.
• Subscribe to our ONDEMAND Platform at www.rhawa.org/products/classPasses. Then go to rhawa.org/education-ondemand , enter the ONDEMAND Platform and go to Content Library/Collections – Fair Housing.