Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

In this episode, I am briefly introducing the Fair Housing Act (FHA) and its amendments. Since this is intended to be an introduction to the FHA, I will only be covering the protections afforded people based on disability status in this episode. If we continue this discussion in future episodes, I would be happy to discuss the protections based on other protected classes.

Questions and Comments

I greatly appreciate your feedback. If you want to contact me about this episode, or about Demand Our Access in general, you can fill out the contact me form on the Demand Our Access website. If you prefer email, you can write me at [email protected].

The Next Episode

The next episode of the Demand Our Access podcast will take place on Saturday, September sixth. As of now, I’m not sure what I will cover in that episode. If there is interest in more about the Fair Housing Act, let me know.

Citations

As always, I will not be providing citations to sections of law during this episode. But the citations will be provided when this episode is posted to the Demand Our Access website.

Introducing The Fair Housing Act

Since I have not yet covered the Fair Housing Act (FHA) through Demand Our Access, this episode is intended to be a brief introduction to the FHA. I’m keeping this introduction brief, because I want to gage interest from the community in the subject of fair housing. If there is interest in diving deeper into housing discrimination, I’m very open to continuing this discussion into future episodes.

Since this is a brief introduction, I have sought to keep the explanations at a very high-level. If we continue the housing discrimination discussion in future episodes, I will take deeper dives into specifics based on your feedback.

I’m trying this new approach to introducing new subjects to see if community will assist me in planning what subjects are covered and how they are covered. I’m also hoping that by breaking things into smaller pieces they will be more relatable.

With that explanatory information out of the way, let’s begin our introduction to the Fair Housing Act.

Roadmap

In this episode, I will be covering the following five topics:

Brief history of the Fair Housing Act

Intent of the Fair Housing Act

Enforcement agencies

Protected Classes and Scope

Impact on People with Disabilities

Brief History

The Fair Housing Act (FHA) was signed into law by President Lyndon B. Johnson on April 11, 1968, one week after the assassination of Dr. Martin Luther King. When it became law, the FHA was added as Title VIII of the Civil Rights Act of 1964. The original statute barred housing discrimination in terms of race, color, religion, and national origin.

In 1974, the FHA was amended to add sex as a protected class. In 1988, the Fair Housing Amendments Act (FHAA), added familial status and disability as protected classes when it comes to housing. The FHAA also added accessibility requirements that applied to newly constructed multi-family dwellings of four or more units intended to be occupied after March 13, 1991 to include certain accessibility features. Those accessibility features include: an accessible entrance on an accessible route; accessible common and public use areas; doors wide enough to accommodate a wheelchair; and more.

The FHAA also granted the Department of Housing and Urban Development (HUD) additional enforcement powers through the introduction of administrative hearings, civil penalties, and expanded judicial remedies.

The FHAA transformed the Fair Housing Act from being a law that was largely symbolic to a law that would actually try to provide protections to those facing housing discrimination through meaningful enforcement.

In 1995, the Housing for Older Persons Act (HOPA) provided criteria for 55+ and 62+ housing and modified the familial status provisions of the FHA.

In 2021, HUD issued a directive covering gender and sexual identity under the FHA’s provision barring sex-based discrimination. Not to get too political, but I think most of us understand that today HUD is not likely to follow the 2021 directive.

Intent of the FHA

The FHA became law with the promise of eliminating housing discrimination and to promote more integrated, inclusive communities. It prohibits discrimination in the sale, rental, financing, advertising, or zoning of housing on the bases of protected class. The protected classes under the FHA are:

Race

Color

National origin

Religion

Sex (including gender identity and sexual orientation)

Disability

Familial status (including homes with children under the age of 18, people who are pregnant, and families with adopted or foster children)

Enforcement

Department of Housing and Urban Development

HUD enforces the provisions of the FHA through its Office of Fair Housing and Equal Opportunity (FHEO). Among its responsibilities, the FHEO:

Investigates complaints

Conducts compliance reviews of recipients of federal funding

Initiates charges through administrative law judges

Issues policy guidance

Refers cases to the Department of Justice (DOJ) in cases of systemic discrimination

The Department of Justice

DOJ enforces its responsibilities under the FHA through its Housing and Civil Enforcement Section. DOJ is responsible for the following housing discrimination issues:

Pattern or practice cases involving widespread or egregious violations

Lawsuits filed in federal court seeking injunctive relief, monetary damages, and civil penalties

Criminal cases involving harassment, violence, or threats that interfere with housing rights

Accepts referrals from Hud in cases of failed conciliation or serious systemic allegations

Summing up Enforcement

In most cases, housing discrimination you face will be addressed by HUD. DOJ only gets involved when the discrimination involves at least several people, when HUD cannot resolve the discrimination, or when the discrimination involves criminality.

As I have mentioned in previous episodes, like when we discussed our rights under Title II of the ADA, your state may also have an agency that can investigate housing discrimination. In some cases, your state agency may even partner with HUD in investigating Housing discrimination. Given today’s political realities, you may want to see if your state has its own housing laws and an agency that enforces them. If your state does have its own housing discrimination laws, you may want to consider filing with your state. In some cases, your state’s laws may provide greater protections than are provided under the FHA. If there is interest, I would be happy to discuss that possibility in a future episode.

Scope

The FHA covers nearly all forms of housing including:

Privately owned rentals or sales

Public housing and subsidized developments

Mortgage lending and insurance

Appraisals

Homeowners associations

Zoning decisions

It prohibits discriminatory actions such as:

Refusing to rent, sell, or negotiate

Setting different terms or conditions

Making discriminatory advertisements or statements about housing

Steering people to different areas

Failing to make reasonable accommodations for disabled people

Discrimination may be intentional or unintentional.

I understand some of the terms discussed above may be confusing. If you have specific questions about who is covered and/or what acts or practices are covered, I can revisit any of that in future episodes. Again, this episode is intended to be a brief introduction.

Impact on People with Disabilities

The FHA affords those of us with disabilities the following protections:

Reasonable Modifications of existing Premises

Reasonable Accommodations

Design and Construction Requirements

Assistance Animals

Reasonable Modifications of Existing Premises

What we are talking about here is the need to make changes to an existing home so that it is more accessible to a disabled person. Think about someone needing to add grab bars in the bathroom to make using the toilet, shower, or tub more accessible.

In these cases, the disabled person cannot be denied the opportunity to have the accessibility improvements made, but the cost of those improvements is entirely the responsibility of the disabled person. Even worse, landlords can insist the disabled person have the accessibility improvements removed when they leave the home. When the landlord insists the accessibility improvements be removed, the cost of removing the accessibility features is also entirely the responsibility of the disabled person. Additionally, the landlord can require the disabled person to establish an escrow account to ensure funds will be available to restore the premises to its prior, less accessible state.

The landlord may also condition approval of the modification on the disabled person providing a description of the work to be done and assurances that the work will be done correctly.

These requirements are a huge part of the reason why so few homes are accessible to people with mobility devices and why people using mobility devices have an incredibly difficult time finding accessible housing.

To make sure there is no confusion, I have used the term “home” in this section to keep things simple. But all housing covered by the FHA including houses, apartments, condos, and more are covered by these requirements.