Feature

Protected Classes and Fair Housing Laws

by Martin S. Snitow

Almost every rental applicant is legally protected against discrimination in housing. Both federal and state laws protect such broad categories of people that it is easier to say who is not in a “protected class” than who is.

Who Is Not Protected?
The federal Fair Housing Act protects all except the following very short list of persons:

current users of illegal drugs (property owners can refuse to rent based on such use);
transvestites, who are not considered to be handicapped;
persons who pose a direct threat to the health or safety of others or who would cause substantial physical damage to the property of others; and
illegal (“undocumented”) aliens (the Fair Housing Act does not prevent
discrimination based on citizenship status).

Exceptions Have Limits
Even these four exceptions are subject to limits. “Recovering” addicts in a drug treatment program are considered disabled and protected from discrimination. So are persons who take drugs legally. Those who used to take illegal drugs but no longer do are protected as well.

While transvestites may not be considered handicapped under federal law, California forbids discrimination based on sexual orientation. No cases involving transvestites under this statute have been published, but a property owner in California should seek legal advice before relying on the federal exception to refuse to rent to a transvestite.

A property owner cannot assume that mentally or physically disabled tenants are a threat to others or to property. Unless a real threat can be demonstrated, persons with conditions such as impulsive and obsessive-compulsive behavior, psychosis, borderline personality disorder, depression, post-traumatic stress disorder and anti-social personality are all protected. The Fair Housing Act also protects HIV-positive/AIDS patients.

How much of a threat does a sex offender pose? Even mental health professionals have trouble assessing this risk. There is a difference between the threat of serial rapists or child molesters compared to the threat from an 18-year-old who had sex with a 17-year-old. Each case must be considered individually.

The law prohibits the use of stereotypes and prejudice to deny housing to handicapped persons. Even where there is a threat, the owner or manager should discuss with the tenant or applicant whether it can be overcome with a reasonable accommodation.

While citizenship is not a protected class, discrimination based on national origin is illegal. Asking persons of one national origin for proof of citizenship but not asking persons of another origin is illegal. The same problem arises if the property owner asks persons of one race or color for proof of citizenship but does not ask all others.

Who Is Protected?
Under federal law, discrimination is illegal when it is based on race, color, religion, sex, handicap, familial status or national origin. In California, it is also illegal to discriminate on the basis of ancestry, marital status, age, sexual orientation, source of income or medical condition.

California also prohibits “arbitrary” discrimination. When is discrimination considered “arbitrary”? The California Supreme Court held that a car wash could not offer discounts to female customers on “Ladies’ Day” and a bar could not offer free admission to females on “Ladies’ Night.” Some promotional discounts are still permissible under the Unruh Act. The key is that the discounts must be applicable to persons of every sex, color, race, etc., instead of being contingent on some arbitrary class-based generalization. In the rental housing market, “move-in” discounts are valid, because any new tenant can qualify.

Distinguishing among these categories can be difficult. What is the difference between “national origin,” as used in both federal and California laws, and “ancestry” discrimination, which is banned in California? There are no cases that address this. If an applicant is turned down because she is Arab, that is national origin (and perhaps racial) discrimination. If the same applicant is rejected because her grandfather is Osama Bin Laden, that could be ancestry discrimination.

Handicap, Disability and Medical Condition
Under federal law, a “handicap” is a physical or mental impairment that “substantially” limits one or more major life activities. California’s definition of a disability omits the word “substantially.” Courts previously assumed that this omission was not significant and construed federal and California law the same way. State regulations adopted under the old California law included the missing word.

Later, the U.S. Supreme Court ruled that, under the Americans with Disabilities Act, a disability must be evaluated in light of the person’s condition using corrective measures. A severely near-sighted person would not be disabled under this decision if eyeglasses correct her vision.

California’s Unruh Act and Fair Employment and Housing Act now provide greater protection for the disabled and unique protection for those with medical conditions. These statutes today define a disability as any limitation of a major life activity, even if not “substantial.” These laws consider disability “without respect to any mitigating measures, unless the mitigating measure itself limits a major life activity.” They protect those with physical and mental impairments that are “disabling, potentially disabling or mistakenly perceived as disabling or potentially disabling.” Federal law has none of these changes.

Source of Income
California law also prohibits discrimination based on “source of income.” This prevents a property owner from requiring that a tenant be employed as long as the tenant has lawful, verifiable income.

Must a property owner accept Section 8 housing-assistance tenants under this law? No California case has resolved this issue, and decisions elsewhere are mixed. A federal court of appeals decided that a Wisconsin statute prohibiting source-of-income discrimination did not require landlords to participate in the Section 8 program. The court reasoned that since federal law makes participation voluntary, an attempt to require participation by state law is preempted. State courts in New Jersey, Connecticut and Illinois however, have ruled the other way, often relying on the particular language of the statute of their state.

Can a rejected applicant who told the owner she intends to run a day care facility sue for source-of-income discrimination? A tenant in California has the right to operate a licensed in-home day care facility. But that law does not allow a suit for damages. Can the tenant say the refusal to permit the day care facility is source-of-income discrimination and sue under the state fair-housing law? The facts of each case will most likely determine the outcome. So far, no California court has considered the issue of source-of-income discrimination based on a refusal to allow in-home day care.

Age
Both California and federal law prohibit discrimination against families with children under age 18. Both permit housing restricted to senior citizens when certain requirements are met. Federal law does not otherwise cover housing discrimination based on age. California law does. Except for qualified senior housing, the Unruh Act “shall be construed to prohibit a business establishment from discriminating in the sale or rental of housing based upon age.” This law applies only in the housing field. Discrimination based on age is not “arbitrary” in other areas.

Why might a landlord want to discriminate based on age? Fair housing agencies often compare the percentage of families with children who are tenants of an accused landlord with census data showing the percentage of tenants who have children in the local area. A landlord might decide to improve her statistics and actively favor families with children in rental decisions. While this strategy may reduce claims of discrimination based on familial status, it will backfire since housing discrimination based on age is illegal in California.

Broad Protection
Federal fair-housing law covers major segments of the population. Anyone who faces discrimination in housing based on their race or color, religion or lack of a religion, nationality, gender, children or disability, can look to federal law for help.
In California, protection is even more comprehensive. If you are too young or too old, if you’re gay or straight, if your ancestry is not to the owner’s liking, if you have a disability that does not “substantially” limit a major life activity or a medical condition that does not disable you or that can be corrected, you are still protected by California law.

Treat Everyone Equally
Fair housing is the law. Property owners must treat everyone equally and should be ready to prove that they did. Ask everyone the same questions. Provide everyone with the same information. Use the same procedures and standards to qualify all applicants. Advertise the property and not the type of people who live there. Offer everyone an equal opportunity to rent all available units.

Be ready to make reasonable accommodations in your policies and to allow reasonable modifications to your property when necessary for disabled tenants and applicants. Keep in mind how broad fair housing laws are. If you have a question, seek legal help before a problem occurs.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. Martin S. Snitow, a business and real-estate attorney in San Jose, has been defending fair housing cases since 1985. He is a graduate of Yale Law School and a trustee of the Santa Clara County Bar Association. Snitow’s other fair housing articles are available at www.msslc.com. Copyright � 2006 by the San Francisco Apartment Magazine. All rights reserved.