Housing Discrimination

General Information and Definitions

Federal, state, and local laws make it illegal to discriminate in the provision of housing based on a person’s protected class. At the federal level, the Fair Housing Amendments Act (FHAA) prohibits discrimination on the basis of race, color, religion, sex, national origin, familial status, and disability. In CA, the Fair Employment and Housing Act (FEHA) prohibits housing discrimination on the same basis as the federal law, but also makes it illegal to discriminate based on marital status, ancestry, sexual orientation and source of income.

Several other laws touch on the issue of housing discrimination. The Americans with Disabilities Act (ADA), a federal law, prohibits discrimination in public accommodations based on disability and does not generally apply to individual apartments. However, the ADA does apply to areas of an apartment complex or housing development that are open to the public, such as a rental office. In CA, the Unruh Civil Rights Act prohibits discrimination by all business establishments based upon race, color, religion, sex, national origin, familial status, disability, marital status, ancestry, sexual orientation, source of income, age and other forms of arbitrary discrimination. The renting of houses and apartments is considered to be a public accommodation for purposes of Unruh and is therefore covered by the Act.

Sources:
Fair Housing Amendments Act, 42 U.S.C. 3601
Fair Employment and Housing Act, Cal. Gov. Code sec. 12955, et seq.
Americans with Disabilities Act, 42 U.S.C. 12101 et seq.
Unruh Civil Rights Act, Cal. Civil Code sec. 51 et seq.

Fair Employment and Housing Act (FEHA)

Definitions

FEHA prohibits housing discrimination on the basis of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income or disability. Each of these characteristics is also referred to as a “protected class”.

  • “Sex” is defined to include gender identity. As an example, a housing provider may not discriminate on the basis that a male tenant dresses in female clothing. “Sex” also includes pregnancy, childbirth, and medical conditions related to pregnancy and childbirth.
  • “Familial status” means one or more persons under age 18 who reside with a parent, legal guardian, or designee of the parent or legal guardian with the parent’s or legal guardian’s written consent. Familial status also applies to persons who are pregnant and to persons who are in the process of gaining legal custody of an individual under the age of 18.
  • “Source of income” means lawful, verifiable income paid directly to the tenant or to the tenant’s representative. It is not illegal for a housing provider to ask amount or source of a tenant’s income.
  • “Disability” is a disease, disorder, or condition that limits a major life activity. The definition of disability, for purposes of discrimination, includes having a disability, having a record or history of such a disability, or being regarded or treated as having such a disability.
  • “Sexual orientation” means heterosexuality, homosexuality, and bisexuality.
  • “Race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability" includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.

Prohibited Conduct

FEHA makes it illegal for an owner to do any of the following:

Owner
  • Discriminate or harass any person because of their protected class.
  • Make any written or oral inquiry concerning the protected class of any person seeking to purchase, rent or lease any housing accommodation.
  • Retaliate by harassing, evicting, or otherwise discriminating against a person who has opposed discriminatory housing practices, informed law enforcement of such practices, testified or assisted in a discrimination case, or aided or encouraged a person to exercise their fair housing rights.

Owner includes the lessee, sub-lessee, assignee, managing agent, real estate broker, or salesperson, or any person having any legal or equitable right of ownership or possession or the right to rent or lease housing accommodations, and includes the state and any of its political subdivisions and any agency thereof.

FEHA makes it illegal for any person to do any of the following:

  • Make, print or publish any notice, statement, or advertisement with respect to the sale or rental of a housing accommodation that indicates any preference, limitation or discrimination based on a protected class or an intention to make any preference, limitation, or discrimination.
  • Aid, abet, incite, compel, or coerce any person to do any of the acts prohibited by FEHA.
  • Otherwise make unavailable or deny a dwelling based on discrimination because of a person’s protected class.

Under FEHA, discrimination includes the following practices when based on a protected class:

  • Refusing to sell, rent or lease housing accommodations.
  • Refusing to negotiate for the sale, rental, or lease of housing accommodations
  • Representation that a housing accommodation is not available for inspection, sale or rental when that housing accommodation is in fact so available.
  • Any other denial or withholding of housing accommodations.
  • Providing inferior terms, conditions, privileges, facilities, or services in connection with those housing accommodations.
  • Harassment in connection with those housing accommodations.
  • Canceling or terminating a sale or rental agreement.
  • Providing separated or segregated housing accommodations.
  • Refusing to permit reasonable modifications to the property by a disabled person, at the expense of the disabled person, when these modifications may be necessary to afford the disabled person equal opportunity to use and enjoy a dwelling.
  • Refusing to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.
  • Blockbusting - attempts by sellers or landlords to encourage persons to leave an area based on their protected class.
  • Redlining - practices by banks that limit lending in particular areas because of the demographic character of the area.

Exemptions

Under FEHA, discrimination does not include:

  • Refusal to rent or lease a portion of an owner-occupied single-family house to a person as a roomer or boarder living within the household, provided that no more than one roomer or boarder is to live within the household, and the owner complies with that section of FEHA which prohibits discriminatory notices, statements, and advertisements.
  • The use of words stating or tending to imply that the housing being advertised is available only to persons of one sex, but only where the sharing of living areas in a single dwelling unit is involved.

While the Federal Fair Housing Amendments Act (FHAA) has additional exemptions, these do not apply in CA. FEHA is more protective, and therefore even if a particular owner is exempt under the federal law, they would not be exempt under FEHA unless one of the two situations mentioned above applies. For example, an owner renting out only one single-family home may be exempt under the FHAA, but would still be subject to FEHA.

Senior Housing

The fair housing laws that make it illegal to discriminate against families with children do not apply to “housing for older persons” as defined by the Department of Housing and Urban Development (HUD), or to “senior housing” as defined by the CA Civil Code, sections 51.2, 51.3, and 51.4. Senior housing is also the exception to the CA law prohibiting age discrimination in housing.

Common Fair Housing Issues

Income Standards

While the use of income standards is a legitimate means of screening tenants, those income standards must be applied equally and in a non-discriminatory manner. FEHA requires that a housing provider account for the aggregate income of persons residing together or proposing to reside together on the same basis as the aggregate income of married persons residing together or proposing to reside together. Therefore, if a housing provider allows married persons to combine their incomes in order to qualify, they must do the same for single persons as well.

Housing Choice Voucher Program (Section 8)

Although CA law does not require a landlord to rent to Housing Choice Voucher (Section 8) recipients, where a landlord does rent to such persons, any income standard used to qualify them must only be applied to that portion of the rent that they would actually pay. For example, if the housing provider’s income standard is three times the rent and the Section 8 recipient would only pay $50.00 of the total monthly rent of $600.00, then the recipient need only have an income of $150.00 to qualify.

Discriminatory Policies re: Families with Children

  • Families with children include single parents and persons who are pregnant. Discrimination against families with children includes refusing to rent, different terms or conditions (i.e., higher deposits/ rents), rules just for children, and discriminatory advertising (i.e., “adults preferred").
  • In regards to rules that discriminate against families with children, any rule targeted at children and not adults would be considered a form of familial based discrimination unless there is a reasonable health and safety reason for the rule and the rule is not too broad. What is reasonable has to be decided on a case by case basis.
  • The law doesn’t speak to absolute age requirements except for pool rules, where CA Code of regulations, Title 22, Article Three, section 65539 states that children under age 14 should not use a pool without an adult in attendance. A rule stating no children allowed to use pool without adult supervision would be considered unreasonable and too broad.

Steering

It is unlawful to discourage any person from inspecting, purchasing or renting a dwelling because of that person’s protected class, or to assign any person to a particular section of a community or to a particular floor of a building because of that person’s protected class. Examples of practices that constitute steering are:

  • Failing to inform a person with children that an upstairs unit is available because you don’t want children living upstairs.
  • Informing someone of a particular race or national origin of vacancies in one building but not another because you assume that person would prefer to live near other tenants of the same race of national origin.
  • Assigning students and families with children to units on one side of the complex, while assigning single persons and older persons to units on the other side of the complex.
  • Referring a prospective renter to another complex that you believe better suits them.
  • Voluntarily telling a person with children that your complex is very quiet, that most of your tenants are business persons and older persons, and that there are very few children.
  • Failing to inform or discouraging a blind person from renting an available upstairs unit.

Occupancy Standards

The Department of Housing and Urban Development (HUD) has issued guidelines regarding occupancy standards that may violate fair housing laws because they adversely impact families with children. In most cases, occupancy standards should allow at least two persons per bedroom, regardless of the age, gender or relationship of the persons living in the unit. In CA, the Department of Fair Employment and Housing views “two persons per bedroom plus one” as a guideline for occupancy standards. A more restrictive policy may be found to be discriminatory.

Though landlords may not use occupancy standards to discriminate against families with children, some cities have established occupancy guidelines. For example the City and County of Sacramento have created guidelines regarding the mini­mum square footage required for each person in a rental unit. These following standards may be enforced:

City of Sacramento: Two tenants need 90 square feet of sleeping space, and each additional tenant needs an additional 50 square feet of sleeping space [Sacramento Hous­ing Code §8.100.310].

County of Sacramento: Two tenants need 70 square feet, and each additional person needs 50 square feet of sleeping space [Uniform Housing Code, Space and Occupancy Standards, §503(b)].

Reasonable Modifications

Fair housing laws require that a housing provider to permit a person with a disability to make reasonable modifications to the existing premises, at person’s own expense, if the modifications may be necessary to afford the disabled person full enjoyment of the premises. The housing provider may not require such person to pay an additional security deposit. However, where it is reasonable to do so, the housing provider can condition permission on the person’s agreeing to restore the interior of the premises to the condition that existed before the modification. Common modifications include:

  • Installing grab bars in the bathroom.
  • Widening the doorway to the bathroom.
  • Removing under-the-counter cabinets.
  • Installing a ramp that leads to the unit.

Note: Federally funded housing projects may be required to pay for reasonable modifications.

Reasonable Accommodations

Fair housing laws require a housing provider to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling unit, including public and common use areas.

Common accommodations include:

  • Allowing a person with a disability to keep a service animal or companion animal despite a “no pets” policy.
  • Not charging a person with a disability a pet deposit for their service animal or companion animal.
  • Allowing a person with a disability to keep a service animal or companion that exceeds your property’s limitations on pet size and / or weight.
  • Assigning a person with a disability a parking spot near their unit even though tenant parking is generally on a first-come-first-served basis.
  • Widening the parking spot of a tenant in a wheelchair to allow them access in and out of their vehicle.
  • Allowing a tenant with a disability to have a live-in personal care attendant (PCA) without required that they apply for tenancy or to be on lease.

Note: The U. S. Department of Housing and Urban Development (HUD) and the U. S. Dept. of Justice have issued a joint statement providing guidance on the issue of reasonable accommodations. For more information, please refer to HUD’s website at www.hud.gov.

Assistance Animals

Fair housing laws also require housing providers to allow a person with a disability to keep an assistance animal, also known as a service animal or companion animal, as a reasonable accommodation. An assistance animal is not a pet. They are animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or animals that provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Because an assistance animal is not a pet, “no pet” policies and limitations on size, weight and type of pet do not apply.

Assistance animals perform many disability-related functions, including but not limited to the following:

  • Guiding individuals who are blind or have low vision.
  • Alerting individuals who are deaf or hearing impaired.
  • Providing minimal protection or rescue assistance.
  • Pulling a wheelchair.
  • Fetching items.
  • Alerting persons to impending seizures.
  • Providing emotional support to persons with disabilities who have a disability-related need for such support.

An assistance animal is not required to have formal training.
A housing provider (public or private) may not refuse to allow a person with a disability to have an assistance animal merely because the animal does not have formal training. Some, but not all, animals that assist persons with disabilities are professionally trained. Other assistance animals are trained by the owners themselves and, in some cases, no special training is required. The question is whether or not the animal performs the disability-related benefit needed by the person with the disability.

The person requesting the accommodation must show a relationship between their disability and their need for the assistance animal.
Assistance animals are a means to provide a reasonable accommodation for an individual with a disability, but a person with a disability is not automatically entitled to have an assistance animal. Reasonable accommodation requires that there is a relationship between the person’s disability and his or her need for the animal. A housing provider (public or private) is permitted to verify that the individual requesting the assistance animal is a person with a disability and that the animal is needed to assist with the disability.

The housing provider may require that the individual requesting an assistance animal verify their need. Such verification can include a physician’s confirmation. The Human Rights/Fair Housing Commission has a Reasonable Accommodation Packet which includes a physician verification form. The packet can be requested directly from the Commission by calling (916) 444-6903. As with all other disability-related inquiries, the housing provider (public or private) may not ask about the nature or severity of the resident’s disability.

Pet deposits do not apply to assistance animals.
A housing provider may not require an applicant or tenant to pay a fee or security deposit as a condition of allowing the applicant or tenant to keep an assistance animal. The tenant is responsible for the cost of repairs necessary due to damage caused by the assistance animal. These costs may be deducted from the tenant’s security deposit after the tenant has vacated the unit.

A housing provider may only refuse an assistance animal where specific facts exist.
A housing provider’s refusal to modify or provide an exception to a “no pets” rule or policy to permit a person with a disability to use and live with an assistance animal would violate Section 504 of the Rehabilitation Act (public housing) the Fair Housing Act, and the Fair Employment and Housing Act unless:

  • There is reliable objective evidence that the animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by a reasonable accommodation;
  • There is reliable objective evidence that the animal would cause substantial physical damage to the property of others;
  • The presence of the assistance animal would pose an undue financial and administrative burden to the provider; or
  • The presence of the assistance animal would fundamentally alter the nature of the provider’s services.

(Sources: HUD Multifamily Occupancy Guidebook, 4350.3 REV-1; HUD Occupancy Handbook, 5/03)

Filing A Housing Discrimination Complaint

The Regional Human Rights/Fair Housing Commission is one of the forums available to you for filing a housing discrimination complaint.

If you believe that you have experienced housing discrimination and wish to file a complaint with the Commission, call (916) 444-6903 or (916) 444-0178. You may also obtain a copy of the complaint form by logging on to www.hrfh.org and printing out a copy. Completely fill out the complaint form and return it by either mail or in person to: RHR/FHC, 1112 I Street, #250, Sacramento, CA95814.

Other ways to file a discrimination claim include:

1. Filing a private lawsuit in state or federal court.
You may hire a private attorney to investigate your complaint and commence litigation in state or federal court on your behalf, or you may file a lawsuit and represent yourself in court. If you wish to hire an attorney, you may contact the Sacramento County Bar Lawyer Referral Service at (916) 444-2333. You do not need to file a complaint with an administrative agency prior to filing a private action of housing discrimination. If you choose to file a private action in state or federal court, you must do so within two years of the date of discrimination.

2. Department of Fair Employment and Housing (DFEH)
DFEH is the state agency authorized to investigate housing discrimination complaints and enforce state fair housing laws. If you choose to file a complaint with DFEH, you must do so within one year of the date of discrimination. The Sacramento District office is located at 2000 “O” Street, Suite 120, Sacramento, CA95184. To file a complaint from within California, call (800) 233–3212 or visit their website at www.dfeh.ca.gov.

3. Department of Housing and Urban Development (HUD)
HUD is the federal agency authorized to investigate housing discrimination complaints and enforce federal fair housing laws. If you choose to file a complaint with HUD, you must do so within one year of the date of discrimination. To file a complaint, call (800) 669-9777 or visit their website at www.hud.gov.

Housing Discrimination Forms

Housing Discrimination Pre-Complaint Questionnaire
Reasonable Accommodation Packet
Reasonable Modification Packet