The Fair Housing Act of
1968 (FHA) (42U.S.C.A. §§ 3601-3631) is also known as Title VIII of the civil rights act of 1968. Congress
passed the act in an effort to impose a comprehensive solution to the problem
of unlawful discrimination in housing based on race, color, sex, national
origin, or religion.
The Fair Housing Act has become a central feature of
modern Civil Rights enforcement, enabling persons in the protected classes to
rent or own residential property in areas that were previously segregated. The department of housing and urban development
(HUD) is charged with enforcement of the act. It issues regulations and
institutes investigations into discriminatory housing practices.
The passage of the Fair Housing Act came after
the failure of two earlier federal initiatives. A 1962 Executive Order directed
all departments of the Executive Branch to take appropriate action to prevent
discrimination in all federally administered housing programs. The Civil Rights
Act of 1964 contained language in Title VI that prohibited housing
discrimination in any program receiving federal financial assistance. Although
Title VI provided that a recipient of funding who was found in violation could
be prevented from continuing receipt of governmental assistance, this sanction
was rarely used.
The Fair Housing Act
prohibits discriminatory conduct by a variety of legal entities. The act
defines "person" to include one or more individuals, corporations,
partnerships, associations, labor organizations, legal representatives, mutual
companies, joint-stock companies, trusts, unincorporated organizations,
trustees, receivers, and fiduciaries. In addition, municipalities, local
government units, cities and federal agencies are subject to the law.
The act explicitly defines a list of prohibited
practices involving housing, including sales, rentals, advertising, and
financing. Its primary prohibition makes it unlawful to refuse to sell, rent
to, or negotiate with any person because of that person's race, color,
religion, sex, familial status, handicap, or national origin. The Fair Housing
Amendments Act of 1988 added extensive provisions that apply to discrimination
against disabled persons and
families with children 18 years of age and under.
It is illegal under the Fair Housing Act to
discriminate in the sale or rental of a dwelling because of the disability of
(1) the buyer or renter, (2) a person who will reside in the dwelling after it
is sold or rented, or (3) any person associated with the buyer or renter. It is
not illegal, however, to refuse to rent or sell housing to an individual, with
or without a disabling condition, whose tenancy would constitute a direct
threat to the health or safety of other individuals or whose tenancy would
result in substantial physical damage to the property of others. Newly
constructed multi-family dwellings must be designed so that the public and
common-use portions are accessible to people with disabilities.
The Fair Housing Act also prohibits
discriminatory advertising practices in the sale or rental of housing.
Advertising may not disclose a "preference, limitation or
discrimination" based on any of the protected categories of persons. The
media company that runs an offensive advertisement or other statement may be
held liable, as may the advertiser. Subtle advertising strategies, such as the
selective use of minority-identified media for the marketing of segregated and
over-priced housing to minorities, and the use of code words, such as
"exclusive" neighborhood, in the text of the realty classified
advertisements, violate the act. The law reaches unpublished statements
including discriminatory expressions and conduct, such as a landlord's
instruction to his rental agent, superintendent, or other employees that they
should either not rent to blacks or that they should give a preference to
whites or certain ethnic groups.
The law makes it illegal for an owner or his
agent to represent to any member of any statutorily protected class that a
dwelling is unavailable for inspection, rental, or sale, when, in fact, it
actually is available. The act has been found to have been violated by a realty
firm that posted "sold" signs on the lawns of a white neighborhood in
an attempt to discourage minorities from purchasing houses in the neighborhood.
The Fair Housing Act also sought to end a
practice called "blockbusting": the practice by realtors of
frightening homeowners by telling them that people who are members of a
particular race, religion, or other protected class are moving into their
neighborhood and that they should expect a decline in the value of their
property. The purpose of this scheme is to get homeowners to sell out at a
deflated price. In alleged blockbusting cases, the courts have focused on what
was heard, rather than what was said. Even in the absence of wrongful intent by
the real estate salesman, or explicit reference to a protected class, liability
will attach if the reasonable homeowner believes that the salesman is trading
on his assumed fear of minorities to stimulate that homeowner to list his house
for sale.
Although the primary focus of the law is to
protect prospective renters and buyers of real estate, the Fair Housing Act
also protects real estate agents who are members of the protected classes. Real
estate brokerages may not set different fees for membership in multiple listing
services, and may not deny or limit benefits accruing to members in real estate
brokers' organizations. In addition, brokerages may not establish geographic
boundaries, office location, or residence requirements for access to, or
membership in, any real estate-related organization, based on an individual's
membership in any of the statutorily protected categories.
Congress worked to identify all components of
the housing industry that might discriminate against persons in the protected
classes. This explains why the Fair Housing Act governs the housing financing
industry. Banks and financial institutions may not discriminate when financing
the purchase, construction, improvement, repair, or maintenance of a house. This section of the act also applies to the selling, brokering, or appraising
of residential real estate.
Despite the apparent breadth of the law,
Congress did exempt several classes of defendants from coverage. It does not
apply to single-family homeowners if they sell or rent their homes without the
use of a real estate agent or other person who is in the business of selling
and renting homes. In addition, the homeowner must not use advertising that
indicates a discriminatory preference. This exemption applies to only one sale
within a 24-month period. Multiple-family homeowners are exempt if no more than
four families reside in a dwelling, including the owner. The act also grants
exemptions to religious organizations, private clubs, and Senior Citizens,
subject to some limitations.
The provisions of the Fair Housing Act may be
enforced by HUD and through "pattern and practice" lawsuits brought
by the attorney general. A person who alleges discrimination may file a
complaint with HUD. If the department believes that the claim has merit, the
matter will be referred to an administrative
law judge for a hearing. The judge is empowered to award actual damages,
equitable relief, and attorneys' fees to the prevailing party. The judge also
may assess civil penalties against the violators, which can range from $25,000
to $50,000.
The judge may not award Punitive Damages nor require Affirmative
Action of the violator, however. In addition, a private citizen may also file a
civil lawsuit in federal court against the alleged violator of the act.
Finally, the attorney general may file a civil lawsuit when there is evidence
of a pattern or practice by the alleged violator that extends beyond one or two
victims. When the attorney general prevails in these types of lawsuits, the act
allows the awarding of injunctive relief and monetary damages to the aggrieved
party. In addition, the court may assess civil penalties against the violator
up to $50,000 for a first violation and up to $100,000 for any subsequent
violation.