Housing Summary
Bases - We learned that under §1982 racial discrimination (defined the same as under §1981) is covered for real or personal property. We found out that for Title VIII the bases of discrimination are race, sex, color, religion, national origin, disability and familial status. Note that if we swap "age" for "familial status" these are the same bases as for employment discrimination.
Dwelling: Title VIII covers only dwellings but §1982 covers all real or personal property. The key in determining if something is a dwelling is the intent to return as cited in Woods and on page 293 of the book.
§3604(a) refusal to sale, rent, negotiate: Here we see the standards of proof in refusal to rent or sale after the making of a bona fide offer is much as in Title VII. An example of a prima facie case is found on page 306. The only difference, as we saw discussed in Denton, is that it may very well be that the Price Waterhouse requirement of "direct evidence" is required before the plaintiff can force the defendant to invoke the "same decision defense." This is because the 1991 Civil Rights Act did not affect Title VIII. Also, for the same reasons, under Title VIII the same decision defense may actually mean no violation has occurred whereas under Title VII it is a defense to damages only. Note the requirement of bona fide offer means testers don't sue under 3604(a).
Otherwise make unavailable or deny [§3604(a)]: As discussed in Woods this covers more than just rental. In Woods it covered the provision of housing at a homeless shelter. Also this language covers steering.
Steering has been described (in Havens) as a "practice by which real estate brokers and agents preserve and encourage patterns of racial segregation in available housing by steering members of racial and ethnic groups to buildings occupied primarily by members of such racial and ethnic groups and away from buildings and neighborhoods inhabited primarily by members of other races or groups." Later we saw in Hilltop a more specific description of the standard of proof. "[O]ne looks to whether the statement or conduct would have an untoward effect on a reasonable person under the circumstances who is seeking housing, and behind the statement or conduct to the intent of the agent. If a statement or act would have a discriminatory effect and is made with the intent to steer, it violates § 3604(a)." Hilltop. Note by 'effect' we're not talking about “disparate impact”, rather, we're talking about would it encourage or discourage a reasonable person under the circumstances.
§3604(b) - Terms and conditions: Primarily this is where harassment cases are brought. See harassment handout.
§3604(c) - Advertisement and discriminatory statements: This can cover advertisement or any statement of "preference, limitation, or discrimination" based on illegal bases with respect to sale or rental of a dwelling. In order to prove a violation of this subsection, plaintiffs need not establish that defendants intended to express a racial preference. Rather, generally it is sufficient if to an ordinary reader the natural interpretation of the advertisements or statements is that they indicate a preference in the acceptance of tenants. We saw this ordinary reader standard applied to find a preference expressed by models of one race but finding no preference where the age of a child in asked.
§3604(d) - Lie about availability: This is a section often used by testers and we saw under Havens that a tester can have standing because of the tester's right (or anyone's for that matter) not to be lied to about housing because of the person's race, sex, etc..
§3604(e ) - Blockbusting: This is the attempt to cause or exploit panic selling. Statements can constitute blockbusting where it can be established (1) that the solicitations are made for profit, (2) that the solicitations are intended to induce the sale of a dwelling, and (3) that the solicitations would convey to a reasonable man, under the circumstances, the idea that members of a particular race are, or may be, entering the neighborhood. As part of the third element we saw the Court require either (1) panic selling or other incidents of a racially charged atmosphere that would impute to any real estate solicitation a racial connotation, or (2) evidence of an actual representation respecting race, whether suggestive or direct.
§3604(f) - Accommodation of the disabled: Here a disabled tenant has a right to make a reasonable modification at the tenant's expense. Discrimination under this sections includes "a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied .by such person if such modifications may be necessary to afford such person full enjoyment of the premises." 42 U.S. C. § 3604 (f)(3)(A) The tenant has to show that she sought the landlord's permission to modify the premises to accommodate her disability at no expense to the landlord, and (1) that the tenant is a person with a disability (2) that the landlord knew or should have known that the tenant had a handicap; (3) that reasonable modifications may be necessary to afford the tenant full enjoyment of the premises and (4) that the landlord refused to permit such reasonable modifications. We saw that a number of courts have held that the landlord may be required to incur some incidental costs to accommodate a tenant's handicap, provided such accommodations do not pose an undue hardship or substantial burden on the landlord. Finally, we learned from Oxford House that maximum occupancy limits are exempted but not definitions of what is a "single family". Thus groups homes may challenge family composition regulations if they result in a denial of housing.
Family status issues: We saw steering still applies, as does discrimination in terms and conditions e.g. higher deposit based on the number of kids, and access to the pool. We explored issues about kids versus families as the basis of treatment. For example, we saw that it is surely true that unrealistic burdens (e.g. no playing, no swimming ever) on the activities of children are likely violations as attempts to burden the family unit and discourage them from renting. But we discussed how "no swimming unless accompanied by someone over 15" could be viewed as actually allowing a family to swim and, if reasonable, arguably is valid. Also in family status discrimination "occupancy limits" form a particular problem e.g. a "one per bedroom" rule has a likely impact but where it’s a one bedroom apartment the rule is a facially discriminatory "no families" rule.