HUD Pumps Helium Into the Fair Housing Act

The U.S. Department of Housing and Urban Development (HUD) has been busy rolling out initiatives aimed at broadening the coverage of the Fair Housing Act (FHA) to protect a greater number of individuals in a range of situations.

September brought new HUD guidance and final rules in three key areas of fair housing. Housing providers across the United States should be aware of these developments as they may affect their compliance risk. If you own or rent a home, or you're looking to move, it's helpful to keep these anti-discrimination protections in mind.

Following is a summary:

1) Gender identity

Action: Final rule

Date: September 21, 2016

Effective date: October 21, 2016

Applicability: Limited to programs and shelters funded under programs administered by HUD's Office of Community Planning and Development (CPD).

Purpose: Ensure equal access for people in such programs regardless of their gender identity. HUD determined that its 2012 Equal Access Rule did not adequately address the "significant violence, harassment, and discrimination" faced by "transgender and gender nonconforming persons." This new rule modifies definitions of certain key terms so that "gender identity" is understood to be determined regardless of the gender indicated on a person's birth certificate, driver's license, or other identifying documents.

Link for more information: https://www.regulations.gov/document?D=HUD-2015-0104-0172

2) Limited English Proficiency (LEP)

Action: Guidance

Date: September 15, 2016

Effective date: Immediately 

Applicability: Broadly applies to all housing covered under the FHA. (Note that housing providers that receive federal assistance have greater obligations to provide meaningful access to LEP applicants and tenants under Title VI of the Civil Rights Act of 1964. For more information about this, visit LEP.gov, a federal interagency Web site.)

Purpose: Protect people from housing discrimination based on their limited ability to read, write, speak, or understand English. This affects an estimated 9% of the U.S. population. LEP is not a protected class under the FHA. However, HUD has found that discrimination based on LEP often is not based on legitimate communication concerns but rather is a proxy for discrimination based on national origin, which is a protected class.

Link for more information: http://portal.hud.gov/hudportal/documents/huddoc?id=lepmemo091516.pdf

3) Sexual harassment and domestic violence

Action: Guidance

Date: September 13, 2016

Effective date: Immediately

Applicability: Broadly applies to all housing covered under the FHA.

Purpose: HUD is addressing the issue of so-called "nuisance ordinances," which have been growing in number and often require landlords to evict tenants after seeking emergency services as the victims of domestic abuse and other crimes. The guidance helps address how to ensure housing providers don't discriminate—intentionally or not—against such people under these ordinances, by applying the three-step discriminatory effects burden-shifting analysis.

Link for more information: http://portal.hud.gov/hudportal/documents/huddoc?id=FinalNuisanceOrdGdnce.pdf

Action: Final rule

Date: September 14, 2016

Effective date: October 14, 2016

Applicability: Broadly applies to all housing covered under the FHA.

Purpose: Explain how housing providers may be liable for sexual harassment, mainly by identifying and detailing "quid pro quo" and "hostile environment" sexual harassment. HUD regulations along with court interpretations have made clear that sexual harassment is a form of discrimination based on sex, in violation of the FHA. This final rule offers more information about what constitutes sexual harassment under the FHA. This clarification echoes earlier HUD guidance of November 2008.

Link for more information: https://www.federalregister.gov/documents/2016/09/14/2016-21868/quid-pro-quo-and-hostile-environment-harassment-and-liability-for-discriminatory-housing-practices

Apple CEO Tim Cook Decries Sexual Orientation Discrimination in Housing

Apple CEO Tim Cook penned a column today in Bloomberg Businessweek in which he publicly acknowledged his sexual orientation. "I'm proud to be gay," Cook wrote, "and I consider being gay among the greatest gifts God has given me."

In his column, the chief of the company known for its "Think Different" campaign noted that although "America is moving toward marriage equality," many laws across the country still allow people to treat others differently because of their sexual orientation. "There are many places where landlords can evict tenants for being gay," Cook pointed out.

The Fair Housing Act (FHA) has helped thousands of people across the United States seek justice and compensation for illegal housing discrimination. But the FHA protects people based on only seven protected classes — race, color, religion, national origin, sex, disability, and familial status.

Many states, cities, and towns have enacted their own fair housing law that includes additional protected classes, such as sexual orientation. (For a scrollable list of additional protected classes in the 50 states plus the District of Columbia, check out the "Protected Classes Tool" at fairhousingresources.com.) Also, new federal regulations bar housing providers who receive HUD funding or have loans insured by the Federal Housing Administration from discriminating based on "actual or perceived sexual orientation, gender identity, or marital status."

Despite these advancements, Tim Cook's observation is correct. In much of the United States, 46 years after the FHA's enactment, landlords can still legally evict tenants — or refuse to rent to them in the first place — based on knowledge or suspicion of their sexual orientation.

Is this right? Should it change? Will it?

What do you think?

Learn more about fair housing compliance at FairHousingHelper.com.

National Association of Realtors® Adds Gender Identity to Ethical Code

Members of the National Association of Realtors® (NAR) who discriminate based on gender identity are now in violation of their ethical code, following a vote conducted on Monday, November 11, which added the protected class, according to a report from REALTOR® Magazine.

This is the second time that the REALTORS® Code of Ethics was amended to include a protected class that's not a part of the Fair Housing Act (FHA). Two years ago, NAR members voted to add sexual orientation as a protected class to their ethical code (see "NAR Bars Sexual Orientation Discrimination… Is Congress Next?").

Is the recent addition of sexual orientation and now gender identity a sign of where federal legislation might be headed?

What do you think?

Grand Forks Becomes First North Dakota City to Ban Sexual Orientation and Gender Identity Discrimination in Housing

Sexual orientation and gender identity are two protected classes that aren't among the seven federally protected ones outlined in the Fair Housing Act.

They're also not part of North Dakota's fair housing law, which adds protection based on age (40 and older), marital status, and public assistance status.

But yesterday, a ban against housing discrimination based on sexual orientation and gender identity became law in Grand Forks, after the city council voted 5-2 in favor, according to a report from the Grand Forks Herald. Landlords who violate the ban put their rental license and certificates of occupancy at risk and may face a $500 fine for each offense.

HUD Pushes Forward With LGBT Proposals

In October 2009, I blogged about how the U.S. Department of Housing and Urban Development (HUD) announced certain proposals aimed at ensuring that people can participate in federal housing programs without regard to their sexual orientation or gender identity.

Yesterday, HUD followed up with an announcement that shows the department is committed to turning its proposals into reality:

1. HUD's proposed rule. HUD issued a proposed rule that takes certain measures aimed at protecting renters and homeowners from discrimination based on sexual orientation and gender identity. Among the measures are:
   
   
   • a provision clarifying that the term "family," as used to describe eligible beneficiaries of public housing and voucher programs (which currently provide assistance to over three million families), includes LGBT applicants;
     
     
   • a provision broadly defining gender identity as "actual or perceived gender-related characteristics" (emphasis added); and
     
     
   • a provision specifying that any FHA-insured mortgage loan must be based only on the credit-worthiness of a borrower, without regard to characteristics such as sexual orientation and gender identity.
   
   The rule ("Equal Access to Housing in HUD Programs — Regardless of Sexual Orientation or Gender Identity") will be published in the Federal Register on Monday, January 24, at which time public comments will be accepted for a 60-day period.
   
   
2. HUD's first-ever national study. HUD announced it will conduct the first-ever national study of discrimination against members of the LGBT community in both the rental and sale of housing. In the past, HUD has conducted such a study only on the basis of race and color.

NAR Bars Sexual Orientation Discrimination... Is Congress Next?

It may not be unlawful for members of the National Association of Realtors® (NAR) to discriminate based on sexual orientation (that depends on state and local law), but members who do engage in such housing practices now run afoul of their own ethical code.

In a ballot vote weighted by size of local association conducted on November 9, an amendment to bar sexual orientation discrimination passed by 93%, according to a report from REALTOR® Magazine.

For the first time, the REALTORS® Code of Ethics includes a protected class that's not a part of the Fair Housing Act (FHA). When this issue was raised among the delegates, one delegate reportedly justified the move by pointing out that the Code's purpose is to hold NAR members to a higher standard.

Do you agree? Do you think such a development is a sign that similar legislative changes are around the corner?

What do you think?

Will the HOME Act Become Law in 2011? Should It?

A bill by the House introduced earlier this month promises to "modernize" the Fair Housing Act (FHA) if passed, supporters say.

H.R. 6500, known as the Housing Opportunities Made Equal (HOME) Act, would greatly expand federal protections against housing discrimination across the United States.

In its current form, the HOME Act would:

• add sexual orientation, gender identity, source of income, and marital status as protected classes;
  
  
• reinforce existing protections for people who are discriminated against after they have already rented or purchased a home;
  
  
• allow the public to hold municipalities accountable for failing to advance fair housing laws;
  
  
• expand the definition of "familial status" to include "anyone standing in loco parentis" of a child under 18 years of age;
  
  
• improve the Department of Justice's (DOJ) ability to investigate potential fair housing and fair lending violations; and
  
  
• clarify and strengthen protections for people with disabilities.

For more information about the HOME Act, take a look at this excellent section-by-section commentary by the National Fair Housing Alliance.

Do you think the HOME Act will become law in 2011? Should it? Do you agree with the law's supporters that it's time to modernize the FHA?

What do you think?

HUD Reveals Strong Commitment to Indirect Approach in Ending LGBT Discrimination

The Fair Housing Act (FHA) doesn't include sexual orientation in its list of seven protected classes. But that doesn't mean that the U.S. Department of Housing and Urban Development (HUD), the federal agency charged with enforcing the FHA, is ignoring the issue.

On the contrary, HUD recently added an LGBT Housing Discrimination page to its Web site indicating the agency's strong commitment to "ending housing discrimination against lesbian, gay, bisexual and transgender individuals and their families" as part of "enriching and strengthening our nation."

HUD acknowledges upfront that LGBT discrimination isn't specifically protected under federal law. However, the agency argues that one's experience with sexual orientation or gender identity may indirectly qualify for FHA coverage.

HUD offers an example of a gay tenant evicted by a landlord out of fear he'll spread HIV/AIDS. Such a tenant may succeed in bringing a fair housing complaint based on having a perceived disability. A second example involves a property manager who refuses to deal with a transgender prospect. Such behavior may amount to sex-based discrimination under the FHA due to "non-conformity with gender stereotypes," according to HUD.

HUD also provides a list of states (plus the District of Columbia) that have laws protecting citizens against housing discrimination based on sexual orientation and/or gender identity/expression. Along with each state is the name and phone number of the relevant enforcement agency, as a handy reference.

Do you applaud HUD for directing resources to combat LGBT discrimination in this indirect way? Or do you believe the agency has overstepped its bounds as primary enforcer of the FHA?

What do you think?

HUD Adds Certain State and Local Protections to Federal Grant Programs

The U.S. Department of Housing and Urban Development (HUD) announced Monday that it will require grant applicants in 2010 to comply with any state and local fair housing laws that protect against sexual orientation and gender identity, as well as lawful source of income. (Note: HUD later formally announced the source of income in a separate release issued June 11.)

(For a scrollable list of additional protected classes in the 50 states plus the District of Columbia, check out the "Protected Classes Tool" at fairhousingresources.com.)

In the past, HUD has required grant applicants to comply only with applicable federal fair housing and related civil rights laws, including the Fair Housing Act (FHA), Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act.

For more details on the new grant requirements, read HUD's official notice.

Fair Housing Month: Why Not Everyone Is Celebrating

It's Fair Housing Month, but not everyone is celebrating. There's no question that the Fair Housing Act (FHA) has proven itself over the past 42 years as a landmark piece of legislation that has helped thousands of victims of illegal housing discrimination across the United States. But, even after two significant amendments, the FHA protects people based on only seven protected classes — race, color, religion, national origin, sex, disability, and familial status.

If you think that covers a lot of situations, you're right. But many individuals, advocacy groups, and politicians argue that the law doesn't go far enough. Several states, cities, and towns have succeeded in extending fair housing protection by including additional protected classes in their own anti-discrimination laws, such as:

• sexual orientation;
• age;
• marital status;
• source of income;
• military status;
• personal appearance; and
• political affiliation.

(For a scrollable list of additional protected classes in the 50 states plus the District of Columbia, check out the "Protected Classes Tool" at fairhousingresources.com.)

Do you believe the FHA should be amended to include additional protected classes? If so, which protected classes would you like to see added? How fair is fair housing if many types of housing discrimination are still legal under federal law?

What do you think?

Return tomorrow for the thirtieth and final part of this special "Fair Housing Month" feature at Fairhousingblog.com.

Fair Housing Month: Colorado's Fair Housing Claim to Fame

Colorado Governor Bill Ritter, Jr. is one of several government leaders to sign a proclamation declaring April 2010 to be "Fair Housing Month" in his state. In doing so, he noted "the great strides our state and nation have made toward breaking down barriers which impede the rights of all citizens."

If you study the proclamation, you'll notice that Mr. Ritter didn't wait until April to introduce the document (unlike the case with last year's proclamation), but had it signed, sealed, and delivered back on January 27.

The governor's early action on this matter is reminiscent of his state's own fair housing history. In 1959, Colorado became the first state to ban discrimination in private housing. So, by the time the United States caught up with the passage of the Fair Housing Act (FHA) in 1968, landlords in the Centennial State had already amassed nearly a decade of compliance experience.

Interesting to note:

• In addition to the federally protected classes under the FHA, Colorado today also bans housing discrimination based on ancestry, marital status, and sexual orientation. (For more information, visit the Web site for the Colorado Department of Regulatory Agencies, Division of Civil Rights.)

Return tomorrow for the fourth part of this special "Fair Housing Month" feature at Fairhousingblog.com.

Tell HUD What You Think About LGBT Discrimination

You may recall reading my February 27, 2010 blog post about the U.S. Department of Housing and Urban Development's (HUD) new plans to collect data on the state of sexual orientation discrimination across the United States. With a goal of determining who would make good testers for LGBT discrimination, HUD decided an effective starting point would be to get input from people living in Chicago, New York, and San Francisco — cities that currently ban discrimination based on sexual orientation and gender identity.

Following recent town hall meetings in these three cities, HUD has announced it's now soliciting feedback from people across the United States on its LGBT discrimination study. If you have ideas on what a tester should do to signal to a landlord that the individual or a couple is LGBT, HUD wants to hear about it.

You can send HUD a comment through its online suggestion box on LGBT discrimination.

HUD Asks Chicago, New York, and San Francisco for LGBT Testing Ideas

When an agency wants to send fair housing testers to a property, it's usually easy to pick suitable people to fill the role. For instance, to test for racial discrimination, agencies send white and minority testers and then compare their notes. If it's disability discrimination at issue, testers with and without a noticeable disability are dispatched to check for bias.

But what about finding appropriate people to test for discrimination based on sexual orientation? Because sexual orientation isn't one of the Fair Housing Act (FHA)'s protected classes, testing for this type of discrimination hasn't been performed by a federal agency, and no organization to date has attempted to test for sexual orientation discrimination in housing on a national scale.

The U.S. Department of Housing and Urban Development (HUD) wants to change that, having recently announced plans to collect data on the state of sexual orientation discrimination across the United States. According to a report from BusinessWeek, HUD will first seek input from people living in Chicago, New York, and San Francisco — three cities that currently ban discrimination based on sexual orientation and gender identity — to help determine who would make good testers, what they should say, and how they should act to get landlords to express their bias, if any exists.

What's your advice to HUD? How can testers for sexual orientation discrimination be most effective? Also, do you think such a housing study is long overdue, or is it an unnecessary expenditure of taxpayer money?

What do you think?

Federal Government Takes Aim at LGBT Housing Inequality

The Obama administration recently announced proposals that would give individuals greater rights when it comes to their choice of housing, regardless of their sexual orientation or gender identity.

Chief among these initiatives is a proposed rule aimed at ensuring that the lesbian, gay, bisexual, and transgender (LGBT) community is included in federal housing programs.

This would be accomplished by:

• making clear that the term "family," as used to describe eligible beneficiaries of public housing and voucher programs (which currently provide assistance to over three million families), includes LGBT applicants;
• requiring program participants to comply with state and local fair housing laws that ban discrimination based on sexual orientation or gender identity; and
• specifying that any FHA-insured mortgage loan must be based only on the credit-worthiness of a borrower, without regard to characteristics such as sexual orientation and gender identity.

In addition to the proposed rule, HUD announced it will commission the first-ever national study of discrimination against members of the LGBT community in both the rental and sale of housing.

Missing from the current set of proposals is an amendment to the Fair Housing Act to add sexual orientation and gender identity as protected classes. Will this come next? Should it?

What do you think?

Bowling Green Votes Unanimously to Expand Fair Housing Protections

On Monday night, the city council of Bowling Green, Ohio voted unanimously to modify the city's fair housing ordinance to protect people based on additional protected classes. The ordinance will take effect 30 days after it was signed, however some expect the issue to arise again as a referendum, according to the Sentinel-Tribune.

Bowling Green's protected classes will include the following: race, color, religion, national origin, gender, gender expression, gender identity, sex, pregnancy, age, sexual orientation, creed, ancestry, disability, military status, veteran status, marital status, family status, physical characteristics, HIV-status and genetic information.

The ordinance also establishes a new complaint process that focuses on conciliation. Next month, the Ohio legislature is expected to consider expanding the state's list of protected classes.

Which protected classes would you like to see in your state, city, or town? Do you think the federal law will be amended in your lifetime to include any additional protected classes?

What do you think?

Interesting to note:

• In addition to expanding the list of protected classes, the council voted to remove "political ideology" as a protected class, for reasons unclear. Perhaps it was because of the inclusion of "creed," which is arguably more comprehensive.


• The council also approved a similar ordinance for workplace discrimination, though not by a unanimous vote.

Update: Sexual Orientation Still Not Protected in North Dakota

In an earlier January post, I wrote that two states were considering amendments to their anti-discrimination laws to protect people based on sexual orientation.

One of those states, North Dakota, just defeated the bill in its House of Representatives by a vote of 54-34. A representative who voted against the bill defended his actions by stating that being gay or lesbian is a "lifestyle choice," and not something you are born with, the Associated Press reported. By contrast, proponents of the bill point to the defeat as being in stark contrast with the recent display of teamwork that fought the rising river level in Fargo.

Should people be protected against housing discrimination based on their sexual orientation? Is sexual orientation something you are born with or is it a lifestyle choice? Should it matter?

What do you think?

Evicted Because of a "Gay Pride" Car?

Two tenants in Fort Smith, Arkansas claimed their landlord evicted them on Tuesday because the words "Gay Pride" appeared on the side of their car, according to KFSM. One of the tenants, who is reportedly a lesbian and had no problem with the inscription that was apparently the work of a friend, claimed that the on-site manager ordered her to remove it immediately upon noticing it.

The landlord, however, claims that the tenants were evicted because of alleged lease violations, including having too many visitors and parking cars in other tenants' spots.

Although the Fair Housing Act doesn't ban housing discrimination based on sexual orientation, many states offer this protection. Arkansas, however, is not one of them.

Do you believe that words written on a tenant's car should ever be the cause of a tenant's eviction? Should it depend on the message behind the words? Should it matter if the tenant's car is parked off-premises, such as on the street?

What do you think?

State's Fair Housing Awareness Campaign Omits Own Fair Housing Law

The New York State Division of Human Rights has been running a statewide ad campaign to promote public awareness of housing discrimination laws. (I spotted them for the first time back in November.) Each ad focuses on a different protected class under the Fair Housing Act (FHA) and then lists them all, stating: "Housing discrimination based upon race, color, national origin, religion, sex, family status, or disability is unlawful."

However, as Gay City News pointed out last week, the ads don't tell the whole story. Missing from the ads is a list of the additional protected classes included under New York's housing discrimination law, which include sexual orientation, age, and military status, among others. Apparently, the U.S. Department of Housing and Urban Development (HUD), in giving New York $500,000 in funding for the ad campaign, required that the ads list the FHA's protected classes but didn't limit it to just that. However, a HUD official reportedly pointed out that New York's omission of the state information is consistent with how other states have spent federal dollars.

In light of these developments, New York is planning to spend the remaining $12,000 it has in federal funds for ads aimed at the lesbian and gay community that promote the fact that New York also bars housing discrimination based on sexual orientation, according to Gay City News.

Should New York have promoted awareness of its own housing discrimination law along with the federal law?

What do you think?

Two More States Happy to Consider Gay Housing Rights

Two states are introducing legislation that would extend their housing discrimination laws to cover people based on sexual orientation:

• Florida's proposed law (HB 397) covers employment, housing and public accommodations, and would ban discrimination based on sexual orientation and gender identity or expression.


• North Dakota's proposed law (SB 2278) covers housing, employment, credit transactions and the use of public accommodation, and would ban discrimination based on sexual orientation.

Currently, 20 states plus the District of Columbia protected prospects and tenants based on sexual orientation.

President Obama and Fair Housing

Yesterday, the nation went to the polls and elected Barack Obama as the 44th President of the United States. When Mr. Obama takes the oath of office on January 20, 2009, he will make civil rights history as he becomes the country's first black President.

What will this mean for fair housing? Will Mr. Obama and a heavily Democratic Congress expand the Fair Housing Act to cover more types of discrimination, such as sexual orientation or age? And is the fact that voters made a clear choice for a black candidate a sign that fair housing violations will trend down?

What do you think?