Fair Housing Act

Legislation

By: U.S. Department of Justice, Civil Rights Division, Housing and Enforcement Section

Date: 1988

Source: U.S. Department of Justice. "Fair Housing Act." 42 U.S.C. 3601–3619, 3631. <http://www.usdoj.gov/ crt/housing/title8.htm> (accessed May 18, 2006).

About the Author: The Housing and Enforcement Section is a branch of the Civil Rights Division of the U.S. Department of Justice. The role of the Civil Rights Division is to protect, safeguard, and enforce the federal laws and regulations concerning federal non-discrimination legislation. The division is charged with ascertaining that individuals are not subject to discrimination based on race, national origin, gender, sexual orientation (where applicable), and disability. The Housing and Enforcement Section is specifically tasked with safeguarding the rights of individuals to fair and equal housing opportunities under the statutes of the federal government.

INTRODUCTION

Twenty years after the original Fair Housing Act became law, it was amended to include provisions against discrimination in housing for persons with disabilities or for persons whose child or children have disabilities. The amendments mandate that large scale housing, such as apartments, condominiums, or town homes, be required to have specified accessible units available for rent or purchase by individuals or family members with disabilities, that reasonable accommodations be made for the safe and easy access of common and public areas by persons with disabilities, and that new construction designate a percentage of all units to be handicap accessible.

The Fair Housing Act defines a handicapping condition, or a disability, as a mental or physical impairment that significantly limits one or more major life activities. The mental or physical handicapping condition may include blindness, deafness, significant visual or hearing loss, mental retardation, disorders affecting mobility (including those necessitating use of a wheelchair, a walker, leg braces, or crutches), HIV infection or AIDS, chronic fatigue syndrome, alcoholism, drug addiction, brain injury, some types of learning disabilities, and mental illness. The impairment may include profound restriction in or loss of sensory ability such as vision or hearing, difficulty ambulating or inability to be mobile without the use of a wheelchair or other assistive device, inability to speak, difficulty breathing, inability to manually or otherwise adequately complete activities of daily living, learning problems, inability to be gainfully employed, and inability to perform manual tasks.

It is illegal to discriminate against an individual or family in a housing situation on the basis of disability status. In fact, it is illegal to even ask questions regarding the existence or extent of disabilities. The property owner must make all reasonable and necessary accommodations in order to ensure that the disabled individual is guaranteed the ability to fully utilize and enjoy the use of the dwelling and attendant common areas. If modifications to the dwelling are required, the landlord, board of directors, or other management entity must implement them within the shortest possible reasonable period of time. The Fair Housing Act places the onus and responsibility for making the modifications on the management, but the financial burden may be shared, absorbed by the facility, or levied upon the occupant.

Typical accommodations or modifications that may be necessary in residential settings include widening doors, placing safety bars in toilet, tub, and shower areas, lowering counter heights and door knobs, installing access ramps, ensuring adequate and appropriate accessible parking, and implementing specific adaptive equipment for persons with significant visual or hearing impairments.

In addition to prohibiting discrimination against persons based on disability status, the Fair Housing Act also makes it illegal to bar service animals from living with their owners, regardless of overall regulations concerning pets.

PRIMARY SOURCE

SEC. 800. [42 U.S.C. 3601 NOTE] SHORT TITLE

This title may be cited as the "Fair Housing Act."

SEC. 801. [42 U.S.C. 3601] DECLARATION OF POLICY

It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.…

SEC. 804. [42 U.S.C. 3604] DISCRIMINATION IN SALE OR RENTAL OF HOUSING AND OTHER PROHIBITED PRACTICES

As made applicable by section 803 of this title and except as exempted by sections 803(b) and 807 of this title, it shall be unlawful—…

(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

(d) To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.

(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.

(f)

1. To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of—
   1. that buyer or renter,
   2. a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
   3. any person associated with that buyer or renter.
2. To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of—
   1. that person; or
   2. a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
   3. any person associated with that person.
3. For purposes of this subsection, discrimination includes—
   1. a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted.
   2. a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or
   3. in connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is 30 months after the date of enactment of the Fair Housing Amendments Act of 1988, a failure to design and construct those dwellings in such a manner that—
      1. the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons;
      2. all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
      3. all premises within such dwellings contain the following features of adaptive design:

1. an accessible route into and through the dwelling;
2. light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
3. reinforcements in bathroom walls to allow later installation of grab bars; and
4. usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.…

SEC. 805. [42 U.S.C. 3605] DISCRIMINATION IN RESIDENTIAL REAL ESTATE-RELATED TRANSACTIONS

1. In General.—It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.

SIGNIFICANCE

One of the central responsibilities of the Civil Rights Division's Housing and Enforcement Section is oversight of zoning and land use regulations in order to ensure that no regulations are implemented that might restrict available housing or dwelling choices for individuals with disabilities. It is important to note, however, that the safety of the community overrides individual preferences—meaning that individuals who might pose a potential threat to other persons or their property by moving into a specific dwelling (based specifically on their behavior) may lawfully be restricted or prevented from doing so. The decision regarding reasonable concern about threat must be made by direct observation and interaction with the specific individual, not based on reports provided by others, regardless of their degree of credibility.

Another of the Housing and Enforcement Section's major responsibilities is the oversight of new construction containing four or more units, in order to ensure that it conforms to the accessibility requirements of the Fair Housing Act, and incorporates necessary accommodations, particularly those allowing ready access for individuals using wheelchairs. Among the regulations for new construction are the placement of thermostats, door and window latches, countertops, electrical outlets, light switches, and other manual or mechanical items (laundry facilities, dishwashers, refrigerator doors, etc.) so that they are easily and comfortably reachable by persons in wheelchairs. Bathrooms must provide grab bars near toilets, in showers, and around tub enclosures, and sinks must be reachable. Public and common areas, including restrooms, must be fully and readily accessible. In addition, entrances to accessible units must themselves be easily accessible, as must their parking areas, sidewalks, and entryways.

Among the less visible disabilities subject to housing discrimination are those that are cognitive, neurological, psychological, or psychiatric. People with learning disabilities, brain injuries, or a history of mental illness regularly face discrimination in many aspects of their lives, particularly employment and housing. The legal rule is that so long as a person meets all of the requirements for acceptance into a particular housing situation, the presence of a mental disability should not be used as a basis for decision-making. The medical or psychiatric history of an individual should have no bearing on ability to meet residential responsibilities, comply with rules and regulations, or meet financial obligations (pay rent, fees, etc.) in a timely or appropriate manner. Only such behavior as is specifically and materially relevant to the individual's ability to perform satisfactorily as a tenant may be considered as a means of evaluating whether he or she will be able to meet residential requirements on an ongoing basis.

The laws against discrimination in housing based on disability status are analogous to those prohibiting discrimination based upon race, culture, gender, ethnicity, and sexual orientation, and the legal ramifications for violation of those rights are equivalent. People with disabilities are legally entitled to equal protection and treatment within the housing realm, and they are equally entitled to self-sufficiency, self-empowerment, actualization, and full access to their living spaces.

FURTHER RESOURCES

Books

Levy, Robert M., and Leonard S. Rubenstein. The Rights of People with Mental Disabilities: The Authoritative ACLU Guide to the Rights of People with Mental Illness and Mental Retardation. Carbondale, Ill.: Southern Illinois University Press, 1996.

Percy, Stephen L. Disability, Civil Rights and Public Policy: The Politics of Implementation. Tuscaloosa: The University of Alabama Press, 1992.

West, J., ed. The Americans with Disabilities Act: From Policy to Practice. New York: Milbank Memorial Fund, 1991.

Periodicals

Colker, R. "ADA Title III: A Fragile Compromise." Berkeley Journal of Employment and Labor Law 21 (2000): 377–412.

Colker, R. "Winning and Losing Under the Americans with Disabilities Act." Ohio State Law Journal 62 (2001): 239–278.