Planopedia

The Fair Housing Act refers to Title VIII-IX of the Civil Rights Act of 1968, which prohibits discrimination based on “race, color, religion, sex, handicap, familial status, or national origin” and aims to reduce discrimination in public and private housing. The act was meant to address discrimination in the sales and rental of homes and introduced federal enforcement mechanisms through the Office of Fair Housing and Equal Opportunity (FHEO).

Throughout the early 20th century, Black families were routinely barred from all-white neighborhoods through a variety of mechanisms, from systemic disinvestment by lenders in areas perceived as ‘high-risk’ to restrictive covenants to outright hostility and violence. As Black Americans were pushed into the lowest-quality housing, U.S. neighborhoods became increasingly segregated.

The FHA was passed by Congress and signed by President Lyndon Johnson in the wake of the assassination of Rev. Martin Luther King, Jr. and the ongoing fight for civil rights. It mandates that jurisdictions “affirmatively further fair housing” by taking meaningful actions to address housing disparities and access to opportunities. It applies to public and private sector housing-related activities including sales and rentals of single-family homes, condos, apartments, and mobile homes. The law’s protections apply to anyone attempting to rent, buy or sell a home, get a mortgage, or obtain housing assistance. Anyone involved in the process of securing housing in the public and private sectors — including landlords, property owners and managers, developers, real estate agents, mortgage lenders, homeowner associations, and insurance providers — is required to follow the FHA’s guidelines.

Although the act does not specifically mention gender identity or sexual orientation as protected categories, the Supreme Court ruled that the provision against sex discrimination, which was added in 1974, includes them. People with disabilities and families with children were added to the protected groups in 1988.

The act includes some exemptions. It does not restrict zoning laws that regulate maximum occupancy per dwelling unit. It also exempts owner-occupied housing with four or fewer units, meaning that if the owner lives in one of the units, up to three other units in the same building are exempt from FHA rules. Single-family housing sold without a broker is exempt, as are communities for elderly residents that qualify under a federal, state, or local government program or are exclusively for people aged 62 and up.

The act is enforced by agencies at multiple levels: at the federal level, HUD investigates complaints and conducts training programs regarding fair housing rules; meanwhile, state agencies enforce state housing laws, local agencies provide community-based support and education, and fair housing non-profits offer legal aid and advocacy for people affected by discrimination. People who believe they were victims of discrimination must file a complaint with HUD, who can direct it to the Department of Justice for investigation which can undertake legal proceedings on behalf of the victim.

Examples of housing discrimination that are illegal under the FHA include:

• A landlord falsely claiming that a unit is no longer available upon seeing a prospective tenant is Black, then offering it to another renter of a different race.
• A homeowner explicitly stating that they won’t sell a home to a family with young children in an advertisement for a home for sale.
• A mortgage lender imposing a higher interest rate on a loan in a predominantly Latino neighborhood than in white neighborhoods.
• A newly built condominium complex doesn’t meet accessibility standards for people with mobility impairments.
• A city denying rezoning requests or relegating multifamily housing to primarily minority neighborhoods.
• A landlord locating families with children in a certain section of a housing complex.
• A lender offering subprime loans more frequently to Black applicants than white borrowers with the same income and credit background.

Later developments

In 1991, when the Americans with Disabilities Act was being passed in Congress, the Department of Housing and Urban Development adopted new accessibility guidelines to help ensure people with mobility issues and disabilities can access housing. Properties that receive federal funding via Continuum of Care (CoC) and Emergency Solutions Grants (ESG) are required to meet these accessibility requirements in their facilities. Owners and landlords with older buildings are required to make “reasonable accommodations” for people with disabilities to ensure access to dwelling units and public and common use spaces. This can include accommodations such as assigning a tenant the closest parking spot, allowing them to keep service animals, or not counting caretakers as additional tenants. Owners are also required to permit tenants to make “reasonable modifications” to the space to improve accessibility. All new buildings built after March 13, 1991 — regardless of how their construction is funded — must have “an accessible entrance on an accessible route, accessible common and public use areas, doors sufficiently wide to accommodate wheelchairs, accessible routes into and through each dwelling, light switches, electrical outlets, and thermostats in accessible location, reinforcements in bathroom walls to accommodate grab bar installations, and usable kitchens and bathrooms configured so that a wheelchair can maneuver about the space.”

A 2015 Supreme Court decision in Texas Department of Housing and Community Affairs v The Inclusive Communities Project expanded the act’s reach to facilitate challenges to zoning laws, lending rules, and other systemic practices that have disproportionately negative impacts on minorities. The court upheld the ‘disparate impact standard’ in the case, which charged that the Texas Department of Housing and Community Affairs had discriminated by locating the majority of its Low Income Housing Tax Credit properties in predominantly Black communities and not in wealthier white areas. According to the court, whether or not the discrimination was intentional is irrelevant if it causes harm, and the agency was found at fault for the ‘disparate impact’ of its practices.

Some states have their own fair housing laws that go above and beyond the FHA. Pennsylvania, for example, applies FHA rules to owner-occupied buildings unless they are only two units under the Pennsylvania Human Relations Act. Massachusetts similarly lowers the threshold for exempting owner-occupied housing to two units. California adds protected categories that include sexual orientation, gender identity, source of income (such as Section 8 vouchers), marital status, age, ancestry, genetic information, and citizenship and immigration status.

The current state of things

Over half a century after its passage, housing discrimination has not been eliminated by any measure. According to a 2017 report from the National Fair Housing Alliance, segregation in housing remains common due to “racial and ethnic disparities in access to credit, subprime lending, foreclosures, racial steering and redlining.” As of the time of the report, “approximately half of all Black persons and 40 percent of all Latinos live in neighborhoods without a White presence.” In 2016, there were 28,181 reported complaints of housing discrimination. People with disabilities also continue to face discrimination and difficulties in finding accessible housing.

Urban planners have a role to play in promoting fair housing through their work in zoning and land use policies. Planners for local jurisdictions can monitor local laws to ensure there are no exclusionary zoning practices, foster inclusivity through community engagement and thoughtful assessments of existing policies and regulations, and build strategies for diverse housing types that offer affordable housing for all kinds of households.