The pocketbook answer: Fair housing lawsuits are among the most expensive and time consuming lawsuits to defend against... and many involved in the housing industry inadvertently violate fair housing laws routinely without even knowing it!!! Until they get caught. Ignorance of the law is no defense, so education is your least expensive option.
The human answer: We don’t want to unknowingly harm our fellow community members and neighbors.
The term “Fair Housing” has many different connotations to many different people. In terms of real estate transactions, it is important for all parties to understand the law and how it applies to them. In this article, we will try to separate fact from fiction and myth from reality. While each topic discussed in this article could be its own class, the idea is to make the reader aware of the main points of the Fair Housing Act.
On April 11, 1968, the Civil Right Act of 1968 became federal law. Title VIII of the Civil Rights Act is the Fair Housing Act. Among other things, the Fair Housing Act was intended to prevent discrimination in various forms concerning the sale, rental and financing of housing.
The federal law lists the following as “Protected Classes” in the administration of housing: 1) Race; 2) Color; 3) National Origin; 4) Religion; 5) Sex; 6) Disability; 7) Familial Status. In addition to the federal law, Washington State fair housing laws also include the following in the list of Protected Classes: 1) Creed; 2) Marital Status; 3) Sexual Orientation; 4) Gender Identity; 5) Veteran/Military Status. Other counties and municipalities in Washington have further defined Protected Classes in addition to those listed above.
So what does this mean for you? The bottom line is that you cannot make any housing related decisions based on any of the protected classes listed above. You can’t decline a military service member a rental property based on their military status because you are afraid they will be deployed and you might lose your renter. You can’t deny housing to someone who has children because all of the neighbors are retired and like it to be quiet at all times. You can’t deny housing to someone in a wheelchair because you are afraid the chair will damage your carpets. Get the point?
You can discriminate against people who aren’t in a protected class. Example: Smokers are not a protected class, so you can legally state “No Smoking Allowed” at a rental property. You can set up reasonable guidelines and criteria that people must meet to be qualified to finance or rent a home. However, you cannot base any of the criteria on any factor related to the protected classes listed above.
The vast majority of people understand what it means to overtly discriminate against someone and avoid that behavior. However, less obvious forms of discrimination exist as well. Below we will define a few of them.
REDLINING: This refers to an old practice in which banks and lending institutions, as well as the government, would literally draw a red line on a map to delineate where they would and would not loan money or make investments. Historically, this typically happened in areas with large minority populations. The practice of redlining was a more subtle form of discrimination, but discrimination nonetheless and is now against the law.
STEERING: This refers to the practice of encouraging people to move and live with like-kind people. To use our smoking example again, encouraging all smokers to live in the same area would not be discrimination because smokers are not a protected class. However, to encourage all Catholics to move to a certain area would be a violation of federal law because religion is a protected class. This form of discrimination was most typically used as racial bias by trying to “steer” non-whites away from living in majority white neighborhoods. No matter the intention, steering is always illegal.
DISPARATE IMPACT: On June 25, 2015, a U.S. Supreme Court ruling focused attention on another form of discrimination that hadn’t got much attention in the past. Disparate impact refers to using criteria that on the face of it is not discriminatory, but has a disproportionate, adverse impact on persons in a protected class. An example would be an apartment complex that states in its rental criteria the complex only allows people with full-time jobs. This would disproportionately affect disabled veterans (a protected class in two instances) and therefore would be considered to have a disparate impact on that population. While the criteria in this example doesn’t state “no disabled veterans allowed,” it has the same effect as if it were stated that overtly. Therefore, a rule like this would have a disparate impact on a protected class and is illegal.
Lastly, I want to conclude this article with a discussion about Service Animals and Assistance Animals. People often confuse the rights conferred in the Americans with Disability Act (ADA) and those in the Fair Housing Act. The ADA specifies that “a service animal is a dog that is individually trained to do work or perform tasks for a person with a disability.” A service animal may accompany people with disabilities in all areas where the public is allowed. Therefore a service animal is allowed into a restaurant or grocery store by law, but an assistance animal may not be allowed. An assistance animal is defined under the Fair Housing Act as “an animal which assists persons with disabilities with the outcomes of their disabilities.” In the housing world, an assistance animal is a reasonable accommodation for a person with a disability in which a third-party professional agrees there is a nexus between the disability and the need for an assistance animal. An assistance animal cannot be considered a pet and a housing provider cannot deny the animal or charge extra for an assistance animal. So, while a service animal (think ‘guide dog’ for a visually impaired person) is also always considered an assistance animal, an assistance animal (think ‘emotional support cat’) is not always a service animal under ADA guidelines. Therefore, certain assistance animals may be denied access at public places, but a properly trained service animal must always be allowed to go anywhere the general public is allowed.
While the topic of Fair Housing could fill many hours of classes and training, we hope this brief article has helped to enlighten you on an important law related to real estate. If you would like to learn more about fair housing laws, each year in the month of April a Fair Housing Conference is held here in Spokane. For more information, questions about housing issues or to be put on a contact list for the Fair Housing Conference, please call the Northwest Fair Housing Alliance at 509.325.2665.
As always, if you want to make sure your real estate sales or property management dealings are in compliance with the state and federal Fair Housing Act, contact a member of the Independent Brokers of Spokane. You can find one of these professional real estate practitioners to help you at www.IBofSpokane.com.
Eric Bessett
President, Independent Brokers
Madison Real Estate & Property Management
509-465-9052
Eric@MadisonSpokane.com
Independent Brokers
The Independent Brokers of Spokane (IB) is a group of Real Estate offices and Affiliate members numbering over forty brokerages and twenty five affiliates in the Spokane area.
www.IBofSpokane.com