Fair Housing

Summer is here again! And the kids have started their seasonal pilgrim- age to the coolest place in the all- age park, the swimming pool. Each year, there is accidental loss of life in private residential pools. Management is not required to provide lifeguards or medical services. As a mandate of federal law (mirrored in the Fair Employment and Housing Act as well), when it comes to common facilities in all age parks, (pools included), parents and guardians are charged with the discretion and power to supervise. This is not a management function. And now, a new case shows that liability can be sought for internal management guidelines passed along to managers from educational course notes!

The Fair Housing Amendments Act (FHAA) went into effect on March 12, 1989.  That Act amended Title VIII of the Civil Rights Act of 1968, which prohibited discrimination based on race, color, religion, sex or national origin in the sale, rental, or financing of residential housing.  The FHAA added two additional protected classes; (1) persons with disabilities and (2) families with children.  Children include persons under the age of 18 years.

Background. The Fair Housing Act (“FHA” or “Act”) was passed in 1968, and has been an important fixture in the law ever since. Essentially, its purpose was to prohibit discrimination in the sale and rental of residential housing. At the time, there were five main protected classes, i.e. groups of persons entitled to the protection of the Act. Those classifications were race, color, religion, sex, and national origin.  In 1988, the FHA was amended to include two additional protected classifications: disability and familial status.[1]

The language of the Act makes it illegal “(t)o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the  sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”[2]  [Underscore mine.]  In other words, certain conduct is prohibited if it is “because of” another’s race, color, etc. 

Notwithstanding the text of the Act suggesting that Fair Housing claims may only be based upon intentional forms of discrimination, for many years several lower federal courts have ruled otherwise; i.e. holding that certain actions, though “facially neutral” (i.e. with no proof of improper motive), may constitute a violation of the Act if they adversely impact a protected class. This is the premise underlying the principle of “disparate impact”; the consequence rather than the motivation can be found to violate fair housing law. For a more detailed background on disparate impact, see my post here.

When reduced to its lowest common denominator, the ultimate question raised by disparate impact theory is whether the FHA forbids actions that may have a statistically adverse impact upon members of a protected class, even though those actions were not motivated by any intent to discriminate.[3]

“In 1988, the Fair Housing Act of 1968 (“FHA”) was overhauled [by the] Fair Housing Amendments Act of 1988…. Prior to the amendments, the Fair Housing Act prohibited various forms of housing-related discrimination based on ‘race, color, religion, or national origin.’ … In 1974, discrimination based on sex was added. … In 1988, prohibitions against housing discrimination based on ‘familial status’ …[was] added to the Act. Pub. L. No. 100-430, § 6, 102 Stat. 1619, 1620-21 (1988) [42 U.S.C. 3601 et seq]….” United States v. Southern Management Corp., 955 F.2d 914, 917 (4th Cir. 1992).

The FHA as amended now prohibits refusals to negotiate for the rental of a dwelling space on the basis of familial status, as well as statements indicating such discrimination. Morgan v. HUD et al, 985 F2d 1451, 1457 (10th Cir. 1993) stated that manufactured home “lots are considered dwellings under and within the scope of the [FHA].” (Id. at 1454) Under the FHA, “familial status” is defined as one or more individuals (who have not attained the age of 18 years) living with a parent or other designee having custody of the minor(s), i.e., families with children. 42 U.S. C. 3602(k)

Early on the courts begin analyzing familial status discrimination claims by first focusing on the language contained in the landlord’s rules and regulations. For example, the plaintiff buyers of a manufactured home in Morgan, cited above, contended in a complaint filed with the U.S. Department of Housing and Urban Development (HUD) that the park owner had refused to allow the moibilehome sale because the buyers had a three year old son. The judge looked to the park rules, which were drafted by a tenants’ committee before discrimination based on familial status was prohibited, that expressly stated the park was “entirely an adult park” and “no children will be allowed in the park.” Even after the landlord agreed to retract this policy and the mobilehome was sold to a couple with children, after being notified by the buyer’s attorney the “adult only” policy was illegal, the administrative law judge found the landlord liable for discrimination under FHA, and the U.S. Court of Appeals affirmed.

This analytical approach used by courts and regulators of scrutinizing a manufactured home community’s rules for evidence of discrimination against families with children has continued to evolve and is even more prominent today as demonstrated by a recent federal case arising out of California.