Fair Housing Act of (1968)

The Fair Housing Act of 1968 (FHA) (42U.S.C.A. §§ 3601-3631) is also known as Title VIII of the CIVIL RIGHTS ACT of 1968. Congress passed the act in an effort to impose a comprehensive solution to the problem of unlawful discrimination in housing based on race, color, sex, national origin, or religion. The Fair Housing Act has become a central feature of modern CIVIL RIGHTS enforcement, enabling persons in the protected classes to rent or own residential property in areas that were previously segregated. The DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) is charged with enforcement of the act. It issues regulations and institutes investigations into discriminatory housing practices.

The passage of the Fair Housing Act came after the failure of two earlier federal initiatives. A 1962 EXECUTIVE ORDER directed all departments of the EXECUTIVE BRANCH to take appropriate action to prevent discrimination in all federally administered housing programs. The CIVIL RIGHTS ACT OF 1964 contained language in Title VI that prohibited housing discrimination in any program receiving federal financial assistance. Although Title VI provided that a recipient of funding who was found in violation could be prevented from continuing receipt of governmental assistance, this sanction was rarely used.

The Fair Housing Act prohibits discriminatory conduct by a variety of legal entities. The act defines "person" to include one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, receivers, and fiduciaries. In addition, municipalities, local government units, cities and federal agencies are subject to the law.

The act explicitly defines a list of prohibited practices involving housing, including sales, rentals, advertising, and financing. Its primary prohibition makes it unlawful to refuse to sell, rent to, or negotiate with any person because of that person's race, color, religion, sex, familial status, handicap, or national origin. The Fair Housing Amendments Act of 1988 added extensive provisions that apply to discrimination against DISABLED PERSONS and families with children 18 years of age and under.

It is illegal under the Fair Housing Act to discriminate in the sale or rental of a dwelling because of the disability of (1) the buyer or renter, (2) a person who will reside in the dwelling after it is sold or rented, or (3) any person associated with the buyer or renter. It is not illegal, however, to refuse to rent or sell housing to an individual, with or without a disabling condition, whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. Newly constructed multi-family dwellings must be designed so that the public and common-use portions are accessible to people with disabilities.

The Fair Housing Act also prohibits discriminatory advertising practices in the sale or rental of housing. Advertising may not disclose a "preference, limitation or discrimination" based on any of the protected categories of persons. The media company that runs an offensive advertisement or other statement may be held liable, as may the advertiser. Subtle advertising strategies, such as the selective use of minority-identified media for the marketing of segregated and over-priced housing to minorities, and the use of code words, such as "exclusive" neighborhood, in the text of the realty classified advertisements, violate the act. The law reaches unpublished statements including discriminatory expressions and conduct, such as a landlord's instruction to his rental agent, superintendent, or other employees that they should either not rent to blacks or that they should give a preference to whites or certain ethnic groups.

The law makes it illegal for an owner or his agent to represent to any member of any statutorily protected class that a dwelling is unavailable for inspection, rental, or sale, when, in fact, it actually is available. The act has been found to have been violated by a realty firm that posted "sold" signs on the lawns of a white neighborhood in an attempt to discourage minorities from purchasing houses in the neighborhood.

The Fair Housing Act also sought to end a practice called "blockbusting": the practice by realtors of frightening homeowners by telling them that people who are members of a particular race, religion, or other protected class are moving into their neighborhood and that they should expect a decline in the value of their property. The purpose of this scheme is to get homeowners to sell out at a deflated price. In alleged blockbusting cases, the courts have focused on what was heard, rather than what was said. Even in the absence of wrongful intent by the real estate salesman, or explicit reference to a protected class, liability will attach if the reasonable homeowner believes that the salesman is trading on his assumed fear of minorities to stimulate that homeowner to list his house for sale.

Although the primary focus of the law is to protect prospective renters and buyers of real estate, the Fair Housing Act also protects real estate agents who are members of the protected classes. Real estate brokerages may not set different fees for membership in multiple listing services, and may not deny or limit benefits accruing to members in real estate brokers' organizations. In addition, brokerages may not establish geographic boundaries, office location, or residence requirements for access to, or membership in, any real estate-related organization, based on an individual's membership in any of the statutorily protected categories.

Congress worked to identify all components of the housing industry that might discriminate against persons in the protected classes. This explains why the Fair Housing Act governs the housing financing industry. Banks and financial institutions may not discriminate when financing the purchase, construction, improvement, repair, or maintenance of a house. This section of the act also applies to the selling, brokering, or appraising of residential real estate.

Despite the apparent breadth of the law, Congress did exempt several classes of defendants from coverage. It does not apply to singlefamily homeowners if they sell or rent their homes without the use of a real estate agent or other person who is in the business of selling and renting homes. In addition, the homeowner must not use advertising that indicates a discriminatory preference. This exemption applies to only one sale within a 24-month period. Multiple-family homeowners are exempt if no more than four families reside in a dwelling, including the owner. The act also grants exemptions to religious organizations, private clubs, and SENIOR CITIZENS, subject to some limitations.

The provisions of the Fair Housing Act may be enforced by HUD and through "pattern and practice" lawsuits brought by the attorney general. A person who alleges discrimination may file a complaint with HUD. If the department believes that the claim has merit, the matter will be referred to an ADMINISTRATIVE LAW judge for a hearing. The judge is empowered to award actual damages, equitable relief, and attorneys' fees to the prevailing party. The judge also may assess civil penalties against the violators, which can range from $25,000 to $50,000. The judge may not award PUNITIVE DAMAGES nor require AFFIRMATIVE ACTION of the violator, however. In addition, a private citizen may also file a civil lawsuit in federal court against the alleged violator of the act. Finally, the attorney general may file a civil lawsuit when there is evidence of a pattern or practice by the alleged violator that extends beyond one or two victims. When the attorney general prevails in these types of lawsuits, the act allows the awarding of injunctive relief and monetary damages to the aggrieved party. In addition, the court may assess civil penalties against the violator up to $50,000 for a first violation and up to $100,000 for any subsequent violation.