Housing Discrimination

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Chapter 13

 

HOUSING DISCRIMINATION

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A. Your rights under the law

Looking for housing is a demanding task for anyone, but it is especially hard when a person is not treated fairly because of discrimination. Discrimination includes refusing to show a person an apartment or house for rent. It is when the landlord charges higher rent or fees to a tenant based on his or her race, disability or other protected status.

The federal Fair Housing Act gives you the right to rent or buy a home without discrimination. The Fair Housing Act was passed in 1968 as part of the civil rights agenda of the 1960s. Amendments to the Fair Housing Act were passed in 1988 to protect the disabled and families with children in addition to other protected classes.

The Fair Housing Act, with certain exceptions, makes it illegal to discriminate with respect to any housing-related matter, such as rental or purchase of housing, against any person because of their race, color, national origin, religion, gender, disability or family status. These seven classes are known as the "protected classes." State, city or county laws and ordinances provide additional protections. For example, the New Mexico Human Rights Ordinance provides protection if a home-seeker is discriminated against because of his or her sexual orientation.

There are other relevant laws that may apply to your situation. A list of these laws is located at the end of this chapter.

 

B. Protected classes

Fair housing laws protect people who are discriminated against because they are perceived as different from, or more difficult tenants than, the majority population. Fair housing laws identify certain groups of people for this protection. These groups are called "protected classes." The protected classes include: race, color, national origin, religion, gender, family status, children, sexual orientation, gender identity and spousal affiliation.

1. Race and color

The federal Fair Housing Act and local laws prohibit discrimination in housing based on a person’s race or color. Race is not specifically defined in the Fair Housing Act. However, race is interpreted broadly by the courts and even includes the White Race as a protected class. One court stated that race "embraces membership in a group that is ethnically and physiognomically distinct" but most courts do not insist on restricting the concept of race to anthropological definitions. The Tenth Circuit Court of Appeals, whose jurisdiction includes New Mexico, has held that for the purposes of the Civil Rights Act of 1866, people with Spanish surnames or people of Mexican American descent are considered a distinct race.

The following examples illustrate discrimination based on race or color:

Discrimination based on race - If an apartment owner rents to everyone except African Americans or only rents to Whites and denies housing to everyone else, that owner is in violation of the Fair Housing Act based on race.

Discrimination based on color - A landlord might rent to light-skinned Hispanics, Native Americans or African Americans while refusing to rent to their darker-skinned counterparts. This is discrimination based on color.

2. National origin

The term "national origin" refers not only to the actual country or geographic area where a person was born, but also to the country or geographical area of the person’s ancestry. It includes a person’s cultural and linguistic attributes. Examples of National Origin include: Mexican, Central American, Mexican-American, Hispanic, Egyptian, Middle-Eastern, Cuban, Caribbean, and Spanish Speakers.

3. Religion

It is illegal to discriminate in housing against persons because of their religion. For example: refusing to rent or to sell to persons because they are Muslim or Jewish is a violation of the federal Fair Housing Act. However, religious organizations are exempt from this prohibition where they own or operate housing that is closely associated with a religious purpose such as seminary housing, and which is offered only to members of the same religion. Nonetheless, even when a religious organization qualifies for this exemption, it still cannot legally discriminate against people based on their race, color, or national origin.

4. Gender

Gender discrimination means treating people differently based on their sex. A landlord who refuses to rent either to women or to men would be engaging in unlawful housing discrimination.

There are two main types of gender discrimination: quid pro quo and hostile environment.

Sexual quid pro quo - Quid-pro-quo is Latin for "something for something." It occurs when a housing agent conditions rental or continued rental to a person contingent on the tenant sleeping or going out with the landlord. That behavior constitutes illegal quid-pro-quo sexual harassment. If a housing agent ties the amount of rent or the timing of repairs to the tenant’s willingness to have sex or become romantically involved with the landlord or apartment manager that constitutes quid-pro-quo sexual harassment. For example, "Go out with me and I’ll do the repairs," or "Sleep with me and I’ll give you a break on the rent."

Hostile environment - if a housing agent does not make a quid-pro-quo proposition, but rather engages in an ongoing pattern of offensive and persistent sexual or sexist conduct, the housing provider is engaging in illegal sex harassment by creating a hostile environment for the tenant. One court defined sexual harassment as "unwelcome sexual advances, unwelcome physical contact of a sexual nature, or unwelcome verbal or physical conduct of a sexual nature."

Examples of such behavior are: making sexually suggestive remarks, inappropriate and unwelcome touching or hugging, and pestering the tenant to go out with him or her despite the tenant continuing to say no to the housing agent or the tenant continuing to ask the agent to stop making the remarks.

5. Familial status

Families with children are sometimes discriminated against because landlords believe that children are noisy, destructive or cause more wear and tear than adults. If a housing provider excludes a family with children under the age of 18, or denies housing to a pregnant woman, that is discrimination based on familial status.

Prohibiting children from common areas - It is illegal to prohibit children from using the common area of an apartment complex, unless there is a legitimate reason for reasonably restricting the activities to a certain part of the common areas.

Restricting families to living in certain areas - A landlord cannot restrict families with children to certain buildings, or ground floor apartments, even if the justification for the restriction is related to the safety of those families.

There are two exceptions to the law protecting tenants from discrimination based on family status:

a. Occupancy limits

If a reasonable local building code only allows up three people to occupy an apartment, the landlord can refuse to rent to a family with more than that number. For example, if the building code prohibits more than 3 people from renting a one-bedroom apartment, the landlord can refuse to rent to a family with two adults and two children, provided that the landlord would also refuse to rent that apartment to a group of four adults or a family with three adults and one child. Whether the occupancy limit is reasonable depends on the justification for the limit, such as a mobile home park’s limited sewer capacity. Some courts have held that a landlord can charge extra rent within reason for children, such as would be charged for extra adults.

b. Senior housing

The Fair Housing Act exempts housing that is geared toward older people from the family status provisions of the Act. This type of housing can take the form of 55-and-Over Housing and 62-and-Over Housing. The 62 and over housing is straightforward: all residents must be over 62. To qualify as 55- and-over housing, the housing complex in question must have at least 80% of the units occupied by at least one person over 55 and must publish and adhere to, policies and procedures that demonstrate the intent to provide housing for persons 55 or over.

HUD has identified 7 factors to help determine compliance with the intent requirement:

 

(1)

The manner in which the housing facility or community is described to prospective residents;

(2)

Any advertising designed to attract prospective residents;

(3)

Lease provisions;

(4)

Written rules, regulations, covenants, deed or other restrictions;

(5)

The maintenance and consistent application of relevant procedures;

(6)

Actual practices of the housing facility or community; and

(7)

Public posting of statements in common areas describing the facility or community as housing for persons 55 years of age or older.

If the complex meets the legal standard for 55 or 62-and-over Housing, then the complex does not have to rent to families with children.

6. Disability

For purposes of the Fair Housing Act, "handicap" or "disability" is defined as a physical or mental impairment that substantially limits one or more life activities; having a record of having such impairment; or being perceived as having an impairment, such as having a diagnosis of HIV+, even if no symptoms exist.

Illegal discrimination against disabled people can take the form of outright refusal to rent, imposing differing terms and conditions, or steering. It can also take the form of refusal to allow reasonable modifications, refusal to make reasonable accommodations in the rules, policies, practices, or failure to adhere to accessibility requirements in the case of post-1991 construction.

a. Modifications

This refers to physical changes to rental property, such as widening doors, installing grab bars in the bathroom, or installing a wheelchair ramp. Disabled tenants in a non-federally subsidized complex must pay for such modifications. Landlords who receive federal subsidies, such as a project-based Section 8 apartment complex, may have to make such modifications at their expense. The tenant in a non-federally subsidized complex is responsible for removing these modifications and restoring the apartment when he or she moves out.

b. Reasonable accommodation

Housing providers must make reasonable accommodations in rules, policies, or practices so a disabled person can enjoy his or her dwelling to the extent (or approaching the extent) that a non-disabled person can. What is reasonable depends not only on the disabled person’s needs but also on the degree of impact the accommodation would have on the landlord. For example, a blind person can have a trained guide dog where there is a no-pet policy, or a person who needs a pet for prescribed therapeutic purposes may also be allowed to have an animal. However, if an accommodation of a tenant would threaten the health and safety of other tenants it can be denied. Similarly, a person needing a designated parking space close to his/her apartment may get one even though the rules do not generally provide for reserved parking spaces.

Mental disabilities are included among the disabilities that are protected by the Fair Housing Act. A typical reasonable-accommodation case involving a mentally disabled tenant is one in which the tenant exhibits behavior that disturbs the neighbors, leading the landlord to seek to evict the tenant. If the disturbing behavior is caused by the mental disability and the landlord knows about the disability, the landlord must try to find a way to accommodate the tenant before evicting him or her.

c. Accessibility requirements

Multi-family housing, (4 units or more) built after 1991 must be accessible to disabled persons. Federal and state law require accessibility to ground-floor apartments such as ramps or paths that are at the same level as the apartment (and higher-floor apartments if there is an elevator) and common areas. Reasonable distribution of accessible parking spaces for disabled people is required, including van accessible spaces. The apartment complex must also have units that are accessible. Examples: wider doors, accessible electrical outlets, accessible stove controls, grab bars, space to turn around in a wheel chair.

7. Sexual orientation

The New Mexico Human Rights Act and some local laws prohibit landlords from refusing to rent or treating tenants differently based upon their sexual orientation (being gay, lesbian, bisexual, transgender or straight). Federal fair housing law does not provide protection based on sexual orientation.

8. Spousal affiliation

The New Mexico Human Rights Act protects tenants based on spousal affiliation but does not define what it covers. In employment law, spousal affiliation refers to discrimination based upon the status of the person you are married to. A New Mexico court has interpreted this provision to protect unmarried couples. Federal fair housing law does not provide protection based on spousal affiliation.

9. Gender identity

The New Mexico Human Rights Act prohibits discrimination based upon a person’s gender identity. The Act defines gender identity as a person’s self-perception, or perception by another, of the person’s identity as a male or female based upon the person’s appearance or behavior that are in accord with or different from the person’s physical anatomy, chromosomal gender or gender at birth. Federal fair housing law does not provide protection based on gender identity.

 

C. Exemptions from the Fair Housing Act

There are some housing providers who are exempt from most provisions of the federal Fair Housing Act.

However, these landlords or housing providers may be covered by local ordinances and the New Mexico Human Rights Act. If the person or agent who discriminates against a home seeker is not covered by the federal Fair Housing Act, a complaint may still be filed with the city or state human rights office or with a court. It is important to check with an attorney or the local human rights office to determine which law covers the discrimination.

Discriminatory statements or advertisements are prohibited by federal law even if the transaction involves one of these otherwise exempt situations. Also, if discriminatory treatment is based on race or color, it may violate the Civil Rights Act of 1866.

 

D. What can you do?

Record the details of what happened to you, including dates, times, people involved, as well as possible witnesses, including their phone numbers and addresses. Keep a running log of everything that has happened, especially if this is an ongoing situation. Keep a file of documents that pertain to your case.

When housing discrimination occurs, complaints can be filed with the Department of Housing and Urban Development (HUD), and/or in state or federal court, or with a state or city human rights office.

1. Statute of limitations

A statute of limitations puts a specific time period for filing a complaint or lawsuit after you have been injured. The statute of limitations for fair housing complaints provides that "[a]n aggrieved person may commence civil action in an appropriate United States District, Magistrate, or State Court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice." However, the statute of limitations is suspended during the period of time during which HUD has and is evaluating a complaint. The time HUD has the case does not count when calculating when the 2-year statute of limitations expires.

If a person has been subject to ongoing discrimination (i.e. continuous discrimination or a number of incidents of discrimination that are factually related), then the 2-year time period begins to run at the time of the last incident or when the continuous discrimination ended.

The statute of limitations for filing a complaint with HUD is one year. State and local laws generally have much shorter time periods for filing complaints, usually 180 days.

2. The HUD process

Once a complaint is filed, HUD will investigate the complaint. If HUD does find reasonable cause that a violation of the Fair Housing Act occurred, it will set a date for an administrative hearing before a HUD Administrative Law Judge. HUD legal staff, representing the government, will try the case on behalf of the complainant, but the complainant can obtain separate representation and intervene in the case. However, either the complainant or the respondent can elect to have the case tried in Federal Magistrate instead of a HUD administrative proceeding. In that event, the Department of Justice will represent the government on behalf of the complainant, and, once again, the complainant can obtain separate representation and intervene in the case.

 

E. Resources / Links

New Mexico Legal Aid
Various locations statewide
www.nmlegalaid.org

U.S. Department of Housing & Urban Development
Office of Fair Housing and Equal Opportunity

625 Silver Ave., SW, Ste. 100, Albuquerque, N.M. 87102
Telephone: (505) 346-6463
1-800-669-9777
WEBSITE: www.hud.gov

Fair Housing Access First
WEBSITE: www.fairhousingfirst.org

Albuquerque Human Rights Office
City Hall, One Civic Plaza NW, 4th floor,, Room 4015, Albuquerque, N.M. 87102
Telephone: (505) 924-3380
WEBSITE: www.cabq.gov/humanrights/office.html

National Fair Housing Alliance
1101 Vermont Ave., NW, Washington, DC 20005
Telephone: (202) 898-1661                                                                                                                                            WEBSITE: www.nationalfairhousing.org

Disability Rights New Mexico                                                                                                                                                                              1720 Louisiana Blvd. NE, Suite 204, Albuquerque, NM 87110
Telephone: (505) 256-3100 V/TTY
Toll-free: 1-800-432-4682
WEBSITE: http://www.drnm.org/

New Mexico Mortgage Finance Authority (MFA)
344 4th Street, SW, Albuquerque, NM 87102
Telephone: 505-843-6880
Toll Free Statewide: 1-800-444-6880
WEBSITE: www.housingnm.org

F. Applicable laws

 

1.

The Civil Rights Act of 1866 provides that: "All citizens of the U.S. shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real property."

2.

The New Mexico Human Rights Act makes it illegal to discriminate with respect to any housing-related matter against any person because of their sexual orientation or gender identity. Protection is already available for discrimination based on spousal affiliation. The Act is at Chapter 28 of the New Mexico Statutes. 28 NMSA §1 et seq.

3.

Local human rights laws - These laws vary by community. Contact us with questions about laws that apply to your community.

 

Section 504 of the Rehabilitation Act of 1973 provides that "No

otherwise qualified individual with handicaps in the U.S.....shall solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

4.

The American with Disabilities Act extends the protections offered by Section 504 to all activities of State and Local Governments, including those that do not receive Federal financial assistance. The American with Disabilities Act does not apply to housing itself but rather to public areas in housing and accommodations such as stores, movie theaters, bowling alleys, buses, etc. It is similar in spirit to the provisions in the Fair Housing Act regarding persons with disabilities.

5.

New Mexico Building Code has certain requirements for disability accessibility for new construction of residential housing, some of which are more stringent than what is required under the Fair Housing Act.

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