April 11, 2018, is the 50th anniversary of the passage of Title VIII of the Civil Rights Act of 1968, better known as the federal Fair Housing Act (FHA). Few pieces of legislation have had such an immediate, practical and significant impact on the provision of housing throughout this country.
April 11, 1968, marked the first time in American history that private housing became subject to federal law prohibiting discrimination, at that time, on the basis of race, color, religion, and national origin.1 With a stroke of the pen in 1968, President Lyndon B. Johnson established “the policy of the United States to provide… for fair housing throughout the United States.”2 (Have a look at our gallery highlighting key policy milestones that led to the development of the Fair Housing Act.)
While housing practices changed overnight with the passage of the Fair Housing Act, bills advocating non-discrimination in housing had been introduced and debated in Congress for years prior. Ultimately, though, as one leading scholar of the FHA has written, the law “resulted from a relatively short and intense period of congressional consideration that took place against the background of dramatic national events.”3 On March 1, 1968, the Report of the National Advisory Commission on Civil Disorders (known as the “Kerner Commission Report”) came to a disturbing conclusion that the country was “moving toward two societies, one black, one white—separate and unequal.”4 That report broke a filibuster in the Senate that had prevented progress of a fair housing bill. But it was the April 4, 1968, assassination of Dr. Martin Luther King, and the resulting new incidents of civil unrest (including in Washington, D.C.) that spurred final passage of the bill. After approval of the Senate bill by the House of Representatives on April 10, 1968, President Johnson signed the Civil Rights Act of 1968, including Title VIII, into law the next day.
Because of the quick pace of Congressional action on the Fair Housing Act, many scholars, judges and attorneys have despaired over the resulting scarcity of legislative history for the law. Most major pieces of legislation bring to their effective date tremendous amounts of committee reports, hearing transcripts and other documents that can be culled for helpful hints on Congress’ intent behind the law. Without that background, the judicial interpretations of the FHA have been particularly important in shaping our understanding of the boundaries of the law.
Two early decisions of the Supreme Court of the United States under the Fair Housing Act set the tone for all later enforcement of the law, and their effect is still felt today, 50 years later.
Almost immediately after the Fair Housing Act became law, white residents of a San Francisco apartment community filed a complaint in federal court alleging they had been discriminated against because the owner of the apartment community regularly discriminated against non-whites. The trial court and the appellate court hearing the case each dismissed the complaint, holding that the plaintiff residents could not bring suit. Specifically, because these residents had housing at the community, and were not the “objects” of the owner’s discriminatory behavior, the lower courts ruled that the residents were not “within the class of persons entitled to sue under the Act.”6 In this first case heard by the Supreme Court under the FHA, a unanimous court overruled the lower courts, and firmly decided that the protections of the FHA were to be interpreted as “broad and inclusive,” with a “generous construction which gives standing to sue to all in the same housing unit who are injured by racial discrimination in the management of those facilities.”7 The Trafficante case established the principle still followed today, that the Fair Housing Act is to be interpreted broadly, providing the greatest protection for the greatest number of potential plaintiffs.
Another unanimous decision of the Supreme Court definitively established that fair housing organizations and people acting as “testers” were permitted to sue over alleged instances of housing discrimination, even if the organization or the testers were not themselves the “object” of that discrimination. In the Havens case, the Supreme Court again followed its principle of broad interpretation of the FHA, and decided that all that was needed to bring a lawsuit was allegation of “a distinct and palpable injury,” meaning, a showing of an “injury in fact.”9 Since the Fair Housing Act establishes “an enforceable right to truthful information concerning the availability of housing,” the fact that a tester may have “fully expect[ed] that he would receive false information, and [inquired] without any intention of buying or renting a home, does not negate the simple fact of injury within the meaning of” the law.10 Further, even testers who are given truthful information (presumably because of their non-protected class status) could still allege an “injury in fact” by alleging harm to their specific community by the discriminatory practices of the owner of the housing that was tested.11
These broad interpretations of the FHA continue to this day, as our industry frequently sees Fair Housing Act complaints filed on behalf of fair housing organizations and as a result of testing. The influence of the FHA and its far-reaching effects, especially on the rental housing market, was most clearly evidenced by the sweeping amendments made to the FHA after 20 years of its existence. These amendments, signed by President Ronald Reagan on Sept. 13, 1988, forever changed the nature of enforcement of non-discrimination in housing and further broadened the law’s already broad reach by adding two new protected classes: Familial status and disability.12 The 1988 amendments underlie all fair housing enforcement today, having a profound, practical, real-life impact on housing in general, and on the ownership and management of multifamily housing in particular.
This case, involving the sale of a home in Stone Mountain, Ga., was the first decision by a federal court to uphold a decision of an administrative law judge under the new enforcement process created by the 1988 amendment of the FHA. Congress had found that, prior to the 1988 amendment, the FHA lacked any effective enforcement mechanism, as private enforcement of the law’s anti-discrimination provisions was “restricted by the limited financial resources of litigants and the bar, and by disincentives in the law itself.” The 1988 amendment to the FHA created an “elaborate administrative enforcement mechanism,” including the U.S. Department of Housing and Urban Development (HUD)’s power to accept and investigate complaints at no cost to the person filing the complaint. If HUD’s investigation led to a finding of “cause,” HUD would then prosecute the case on behalf of the person complaining, either in a newly established administrative procedure or in federal court as typical litigation. In Blackwell, HUD successfully enforced a relatively modest award of damages to an African-American couple who were denied the opportunity to buy a home because of their race, establishing the legitimacy of the new Fair Housing Act enforcement mechanism still in place today.
The 1988 amendments to the Fair Housing Act included, for the first time, “familial status,” defined as the presence of minor children,15 as a protected class. Although the amended FHA clearly provided that nothing in the amendments was intended to limit “the applicability of any reasonable local, state or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling,”16 HUD routinely investigated and prosecuted complaints against housing providers it believed unduly restricted the number of occupants of any particular housing as evidence of familial status discrimination, as the largest numbers of larger groups of people choosing to live together are, in fact, families with minor children.
In Pfaff, a family of five (including three children) attempted to rent a 1,200-square-foot, single-family home in Bellingham, Wash., in 1992. The owners of the house, the Pfaffs, made a business of renting houses and routinely limited the number of occupants in each house (although the limit varied depending on the number of bathrooms, the layout of the house and other factors having to do with the house itself). The main factors driving the establishment of each occupancy policy were, according to the Pfaffs, their own business experience and “common sense.” The Pfaffs limited the house the family of five was interested in to only four occupants. HUD pursued an enforcement action against the Pfaffs, claiming they discriminated on the basis of familial status because of this occupancy limit.
When the administrative law judge who heard the case agreed with HUD, the Pfaffs appealed the judgment against them. The appellate court described HUD’s conduct in the investigation and prosecution of the case as “reprehensible,” “heavy-handed” and “truly appalling.” The Court found that HUD acted “arbitrarily and capriciously” in enforcing the FHA against the Pfaffs for their occupancy limit at this house and acted “well outside the limits of good—or acceptable—government” by failing to provide direction and guidance regarding the FHA’s requirements for occupancy policies. According to the court, HUD’s “inconsistent and misleading representations to those regulated by the FHA” regarding occupancy led people trying to comply “down the garden path.” While overturning the decision against the Pfaffs, the court expressed a hope that “HUD will avoid such incidents in the future by providing the public with guidance adequate to enable honest people to comply with” the FHA.17
As anyone who has recently faced a Fair Housing Act complaint regarding the “reasonableness” of a particular occupancy limit knows, even these scathing words from the Pfaff court have not resolved the confusion surrounding what is and what is not in violation of the law. Even HUD’s 1998 formal adoption of the so-called “Keating Memo” as an enforcement standard for occupancy cases has not resolved ongoing disputes over what constitutes a “reasonable” (and thus presumably lawful under the FHA) occupancy limit.
Along with familial status, disability became a new protected class under the 1988 amendments to the FHA. While people with disabilities became the newest class of individuals entitled not to be discriminated against in housing because of a particular characteristic, the amended FHA also included additional protections specific to people with disabilities. The FHA now requires that housing providers make reasonable accommodations in their rules, policies, practices and procedures if those changes are necessary to allow a person with a disability full use and enjoyment of housing.19 Owners and managers of rental housing struggle daily with evaluating requests for accommodation, trying to determine what is (and is not) “reasonable” under the law. The Giebeler decision found that the refusal of a housing provider, who customarily did not allow third-party guarantors for qualification of applicants, to allow an applicant with AIDS to have his mother as a guarantor of his lease could constitute a failure to accommodate the applicant.
In sending the case back to the trial court to make a factual determination, the court issued a highly influential opinion that just because a particular policy is disability-neutral (i.e., the refusal to allow guarantors from anyone) does not mean that policy is insulated from the requirement of change as an accommodation. Rather, under Giebeler, housing providers have to examine each request for accommodation on its own facts and merits to determine the “causal link” between the disability and the requested accommodation. Once that nexus is established, the analysis turns to whether the requested accommodation is “reasonable,” in the sense that it would pose no undue financial or administrative burdens, or result in any fundamental alteration in the nature of the housing services provided. In Giebeler, since the applicant sought only to establish his qualification to rent in a different way from non-disabled applicants, rather than to lower the standard of those qualifications themselves, the court found he had met his burden of proof of both “necessity” and “reasonableness” with regard to the requested accommodation.
Disability issues, including, quite frequently, requests for accommodations, form the basis of the majority of FHA complaints filed with HUD and state agencies today. Evaluating the necessity for and reasonableness of a requested accommodation, as in the Giebeler case, will likely continue to pose issues for housing providers (and the courts) for years to come.
Inclusive Communities Project Inc. (2015):20
The eagerly anticipated Inclusive Communities decision from the Supreme Court would be the first decision to rule whether the “disparate impact” theory of discrimination can be used to enforce the Fair Housing Act. Disparate impact measures whether an otherwise facially neutral policy nonetheless has a disparate, adverse and discriminatory effect on a particular protected class. No showing of intent to discriminate is necessary to establish disparate impact discrimination. Holding that the FHA’s inclusion of “otherwise make [housing] unavailable”21 as prohibited discrimination “refers to the consequences of an action rather than the actor’s intent,” the Court concluded that disparate impact claims could be made under the FHA.21 But the Court also made clear that just showing a statistical disparity in results under the facially neutral policy would not be sufficient for a plaintiff to prevail; instead, the plaintiff must establish a particular policy or policies of the defendant that causes the disparity. Indeed, the Court referred to the plaintiff’s burden under the disparate impact theory of discrimination as establishing a requirement for “robust causality,” ensuring that a mere imbalance of a particular protected class could not, without more, establish the case for disparate impact discrimination.23
Allowing claims of disparate impact discrimination to move forward opens up all new topics of potential litigation under the FHA. We have already seen, and will continue to see, complaints asserting discrimination based on such facially neutral policies as screening for credit or criminal background, occupancy policies and failure to accept Housing Choice Vouchers (Section 8 subsidies). All of these claims require a successful application of disparate impact to succeed under the Fair Housing Act; it remains to be seen whether they can be successful under the Supreme Court’s narrow reading of that theory.
Design and Construction Consent Orders:
In addition to reasonable accommodations and modifications, the 1988 amendments to the FHA also included an additional protection for people with disabilities. The FHA now requires all new multifamily-housing construction to include certain features of accessibility for people with mobility disabilities, such as wider doors, no-step entry and sufficient space in kitchens and bathrooms to maneuver a wheelchair.24 Although this provision of the FHA took effect beginning March 1991, the first successful actions alleging failures of compliance were not brought until the early 2000s. In fact, many housing developers, owners, architects and engineers simply were unaware of this provision of the FHA prior to the early 2000s, particularly since the amendment included no mandate that these accessibility requirements be incorporated into local building codes.
Beginning in 2004, the Equal Rights Center (ERC), a civil rights organization that works to eliminate unlawful discrimination in housing, began filing a series of lawsuits against some of the largest apartment owners and operators in the nation, alleging failure to comply with the FHA’s design and construction accessibility requirements in new multifamily construction. During a series of several years, ERC was able to resolve a large number of those actions with consent orders whereby the defendants agreed to undertake various accessibility modifications and pay large amounts of damages to the ERC. Other advocacy groups filed similar lawsuits, and similarly resolved those lawsuits through judicially enforced settlements. The enforcement actions brought by these groups, even absent any individual seeking housing and harmed by the lack of accessibility, resulted in a dramatic rise in the level of knowledge and awareness of FHA accessibility requirements among the multifamily housing development community. The exact parameters of compliance with the FHA accessibility requirements are still being defined through additional agreements and enforcement actions, and legal questions as to such issues as liability and statutes of limitations have yet to be settled. The consent orders of the early and mid-2000s, however, reinforced the promise of the Havens case that fair housing organizations could be proper plaintiffs in enforcement actions. These cases also set the expectations for FHA accessibility compliance that have now become routine in multifamily housing development.
These selected examples confirm that the judicial mandate to interpret the Fair Housing Act “broadly” is still firmly in place even 50 years after the passage of the FHA. But each of these decisions still leaves room for future legal theories and arguments. As interpretations of the Fair Housing Act are still developing, this 50th anniversary confirms that the daily activities of housing ownership and management continue to play a real part in the continued effort to fulfill the policy stated in the law of “fair housing throughout the United States.”
Theresa L. (“Terry”) Kitay is an attorney in the practice of civil rights defense for housing professionals, and a Founding Director of The Fair Housing Institute, Inc., an educational resource providing live and online training to the multifamily housing industry on all civil rights issues.
1 The Fair Housing Act was amended in 1974 to add “sex” as a protected class.
2 42 U.S.C. §3601.
3 Schwemm, Housing Discrimination Law and Litigation, §5:2 at pp. 5-6. The author gratefully acknowledges the assistance of Professor Schwemm’s monumental, influential, and informative publication in the research and preparation of this article.
4 Kerner Commission Report at 1 (1968).
5Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972).
6Id. at 208.
7Id. at 208 and at 212.
8Havens Realty Corporation et al., v. Coleman, et al., 455 U.S.363 (1982).
9Id. at 372.
10Id. at 374.
11Id. at 377.
12 The Fair Housing Act actually refers to “handicap” and “handicapping condition” as the protected class; because these are outmoded and offensive terms, the author will refer to this protected class as “disability”.
13HUD on behalf of Herron v. Blackwell, 908 F.2d 864 (11th Cir. 1990).
14Pfaff v. U.S. Department of HUD, 88 F.3d 739 (9th Cir. 1996).
15 42 U.S.C. §3602(k).
16 42 U.S.C. § 807(b)(1).
17Id. at 748-50.
18Giebeler v. M & B Associates, 343 F.3d 1143 (9th Cir. 2003).
19 42 U.S.C. § 3604(f)(3)(B). The FHA also requires housing providers to allow residents to make “reasonable modifications” to their housing (including common areas) if those physical changes are necessary because of a disability. 42 U.S.C. §3604(f)(3)(A).
20Texas Department of Housing and Community Affairs v. the Inclusive Communities Project, Inc., 135 S.Ct. 2507 (2015).
21 42 U.S.C. §3604(a).
22Inclusive Communities at 2518.
23Id. at 2523.
24 42 U.S.C. §3604(f)(3)(C)