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Common Forms of Housing Discrimination

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Legal Tactics

By

Maureen St. Cyr, Esq.

Reviewed

January 2025

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In this section, learn about common forms of housing discrimination and what they can look like.

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children

Discrimination Against Families with Children

Families with children are protected from discrimination by the fair housing laws.²² The law also protects people who are pregnant and households in the process of adopting a child, getting custody of a child, getting guardianship of a child, or who provide foster care for children.²³ It is illegal for landlords to refuse to rent to you or in any way discriminate against you because you have or are expecting children.

For Example

If you are a mother with three kids, a real estate agent cannot tell you that you would be overcrowded in an apartment but then rent the same place to four students. Similarly, a landlord cannot refuse to show you an apartment because it has lead paint. And a landlord cannot charge you a larger security deposit or insist on more frequent inspections because you have children.

In some circumstances, however, the law does allow Massachusetts landlords to exclude families with children. In general, there are two types of housing where this may be allowed:

Two-family homes where the owners are occupants;²⁴ and
Certain buildings intended for and occupied by people over 55 years old.²⁵

Yet, even where an owner-occupant can legally refuse to rent to children, a landlord is not protected by state or federal law if they publish, advertises, or makes any written or verbal statements that they will not rent to children.²⁶ Most landlords do not put ads in the paper that say "no children, please" because they know that would be illegal. But some landlords do instruct real estate brokers and managers not to rent to families with kids or to reject them on some made-up grounds. A broker violates the law if they carry out the instructions of an owner-occupant of a two-family building and refuses to show or rent a property to families with children.²⁷

a. Lead Paint

Because lead poisoning is so serious, Massachusetts law requires owners to delead apartments whenever a child under the age of six lives in the property.²⁸ State law also makes it illegal for a landlord to refuse to rent to you and your children because an apartment has lead paint. Landlords must delead an apartment if you want to rent it and you have a child under the age of six. However, because the process of deleading is expensive, landlords frequently attempt to avoid this expense by not renting to families with children. Landlords will often say something like “Unfortunately, I can’t rent to you because the unit doesn’t have a lead certificate.” This is wrong: the landlord can rent to you, but they have to go through the process of abating any lead hazards first.²⁹ You should still ask to see the apartment and ask for an application, if you want to rent it. The landlord should take steps to delead it and make it available if you are approved. If they do not or they deny your application in a suspicious way, they may be discriminating.

A common, but subtle, way of discriminating against families with children is to ask the ages of the children on the rental application. You do not have to tell the ages of your children. Simply list the names of everyone who will be living in the apartment without listing their ages. If a landlord insists on knowing how old your children are, it may be a sign she intends to discriminate against you because you need a deleaded apartment. If this happens, read the section on Steps to Take If You Think You Have Been Discriminated Against.³⁰

If you have a Section 8 certificate or voucher, most housing authorities will not allow you to rent a place that is not certified as "lead-free."³¹ In these cases, a landlord must delead the apartment.³² They cannot simply refuse to rent to you or refuse to accept your Section 8.³³ For more see section on Discrimination Based Upon Receipt of Public Assistance.

b. Apartment Size

If you have kids, you may find that landlords, especially public or subsidized housing landlords, require you to rent apartments with a certain number of bedrooms, perhaps more than you need or can afford – or turn you away from units that you believe are large enough, but they say would be too small. For example, many public housing authorities have a rule requiring a single parent with a young child to apply for a 2-bedroom apartment. Although the rule allows two adults to share a 1-bedroom apartment, the rule would prevent a mother and her baby from being in the same room. This violates the federal and state fair housing laws because a 2-person family with a child is being treated differently than 2-person household without a child.³⁴ However, a landlord is sometimes allowed to reject tenants based on the size of their family in order to comply with state and local housing codes, but can do so only as long as the landlord treats all tenants the same when complying with the these housing codes.³⁵

race-national-origin

Discrimination Based on Race or National Origin

Although housing discrimination based on a person's race or national origin is illegal, people of color still experience discrimination at high rates.³⁶ According to the 2020 U.S. Census figures, people of color in Massachusetts continue to be in much greater concentrations in cities, while the suburbs remain overwhelmingly white.³⁷ Segregation this severe and this widespread does not happen by chance.

Sometimes the discrimination can be blatant, such as when a landlord says: "I don't want to rent to Spanish people." More often it is subtle, where you are shown houses or apartments only in areas where everyone else looks like you. For example, if you are Black and you are only shown apartments in neighborhoods where there is a large number of other Black people. Other times, you may simply not get a call back. Many non-white populations face high rates of housing discrimination. Hispanic or Latine people or people with accents may simply not receive a return phone call. People of Middle Eastern descent also face high rates of discrimination – based on race, national origin or religion. Similarly, Asian Americans have faced high rates of discrimination, in particular following the COVID-19 pandemic.

A landlord may run uniform background checks to ensure ability to pay rent or fitness as a tenant. But asking about race and ethnicity are impermissible inquiries.³⁸ You cannot be asked about what your religion is or told that you cannot have guests or visitors of a certain race. If you are being asked questions about your race or ethnicity, you may be the victim of discrimination. For more information about what to do and who to call for help see the section in this chapter called Steps to Take If You Think You Have Been Discriminated Against.

Bias Against Immigrants

Relatedly, many people who are recent arrivals face discrimination. Landlords also make assumptions about someone’s citizenship status based on their national origin, perceived national origin, or because they do not speak English. A landlord may assume that someone whose family came to the United States decades ago is an undocumented immigrant. Turning someone away for that reason is illegal.

public-assistance

Discrimination Based on Receipt of Public or Rental Assistance

It is illegal under state law to discriminate in renting housing because a person receives some form of public assistance, including welfare, medical assistance, or rental assistance. Thus, if a landlord says they don’t take Section 8, or require all tenants to have employment income (as opposed to SSDI for example), that is discriminatory under Massachusetts law.

It is also illegal to discriminate against a person because of the requirements of these programs.³⁹ For example, a tenant with a Section 8 voucher can rent an apartment only if their landlord signs a lease. No lease, no subsidy. If a landlord says they will not rent to you because they don’t want to do a lease, that is unlawful under state law.⁴⁰ It may also be discrimination if the landlord refuses to take payments (called vendor payments) from the Department of Transitional Assistance.

If you run up against a landlord or agent who refuses to rent to you because you have a rental subsidy or receive other public assistance, you should promptly report your complaint to the local housing authority or regional nonprofit agency that gave you the housing subsidy. These agencies have a duty to assist you in filing a complaint.⁴¹ You should also reach out to a fair housing agency for help. You can find the contact information for different fair housing agencies in the section called Steps to Take If You Think You Have Been Discriminated Against.

disability

Discrimination Based on Disability

Disabled tenants are protected against housing discrimination under state and federal law.⁴² In addition, these same antidiscrimination laws give disabled people affirmative rights in housing: the right to reasonable accommodations and to reasonable modifications.⁴³

These laws seek to ensure that disabled people are not unnecessarily excluded from living in the community: our country has a long history of segregating disabled people or housing them unnecessarily in institutional settings.⁴⁴ Fair housing laws seek to remedy this exclusion.

a. The Right to Not Face Discrimination

It is illegal for a landlord to take any of the negative actions defined in the earlier parts of this chapter because someone is disabled. Thus, it is illegal to refuse to rent to someone because they have a disability, or to evict someone because they have a disability. For example, if a landlord refuses to rent to someone who has been in recovery from Substance Use Disorder without a relapse for years, or learns that a tenant is HIV-positive, and tries to evict them as a result, that would likely be illegal discrimination.⁴⁵

It is also illegal to make discriminatory statements based on disability, harass a tenant based on their disability or a household member’s disability, or take other negative actions against an applicant or tenant because of their disability.

The law protects against actions taken because of a tenant’s disability, but also because the landlord perceives them to be disabled (even if they are not) or because they have a history of disability.⁴⁶ State and federal laws prohibit virtually every kind of housing discrimination against people with almost all kinds of disabilities, including the refusal to make needed accommodations and modifications because of a disability.⁴⁷ Thus, a blind person, someone with epilepsy, AIDS, or alcoholism, or someone who suffers from depression or is developmentally disabled, has the right to rent and remain in an apartment, just like anyone else.

There are three definitions of disability used by the fair housing laws:

A "physical or mental impairment that substantially limits one or more life activities." This means that if you have a physical or mental condition or disease that prevents you from performing such tasks as walking, seeing, hearing, talking, breathing, holding a job, paying bills, or understanding things, you may be considered disabled. Also, the condition or disease must limit your activities to a great degree and for a long or substantial period of time.
A record of having a physical or mental impairment that substantially limits one or more life activities; or
A person who is considered by others to have a physical or mental impairment that substantially limits one or more life activities.⁴⁸

You are protected against discrimination on all of these bases.

b. Reasonable Accommodation

Under the law, disabled people have the right to reasonable accommodations in their housing.

A reasonable accommodation is a change in a rule, a policy, or a practice of the landlord (compare below to Reasonable Modification – a physical change to the property).⁴⁹ For example, if a landlord has a rule that tenants cannot have dogs, and you need an assistance animal (also called an emotional support animal) or a service animal, the landlord should waive the "no pet" rule for you.⁵⁰

Other examples of reasonable accommodations might include:

Transferring a tenant with a mobility disability to a vacant first-floor apartment, even if the lease on their fourth-floor apartment has months to run.
Allowing a tenant with a mobility disability to have a designated parking spot close to the building entrance or exit so they can access their car.
Agreeing to send out all notices in large-point font to allow a blind tenant to read mailings from the landlord.
Pausing or stopping eviction proceedings when the tenant is facing eviction due to disability-related behavior and they have new supportive services that will help them not violate the lease going forward.⁵¹

These are just a few examples. There are many other types of accommodations. Accommodations are highly individualized, and will be different for each person, based on their disability-related needs.

As the examples above show, a landlord's duty to reasonably accommodate the needs of disabled people applies not only to those with physical disabilities, but also to those with mental disabilities.

As noted above, a landlord must grant an accommodation related to the disability if it is requested and will ameliorate the symptoms of the disability, and does not pose an undue financial and administrative burden.⁵² An undue financial and administrative burden is not any burden – many accommodations will pose some burden to the landlord – but one that is too much to reasonably expect the landlord to carry out. Thus, it may be unreasonable to expect a small or moderate landlord to provide an accommodation that costs a lot of money.

An accommodation also cannot pose a “fundamental alteration” to the landlord – that is, it cannot ask a landlord to do something that the landlord would not do as part of their ordinary business.⁵³ Thus, although it might be helpful to a tenant, it is likely not a reasonable accommodation to expect a landlord to drive a mobility-impaired tenant to the bank to get a rent check.

Another reason why a landlord might not have to grant a reasonable accommodation is if, even with the accommodation, the tenant would pose a “direct threat” to the health or safety of other tenants or people on the property. Thus, while the reasonable accommodation laws might require a landlord to delay the eviction of a tenant with a mental health disability who was causing minimal property damage and not disturbing other tenants,⁵⁴ an accommodation might not be reasonable if other tenants have been threatened or seriously disturbed by the tenant requesting an accommodation.⁵⁵

In Housing Court there is a program called the Tenancy Preservation Program which specifically helps households with mental health challenges preserve their tenancy and works with landlords to develop reasonable accommodations. If you think a referral might be helpful, you can ask court staff about a referral or reach out using the contact information online.

c. Reasonable Modification

A reasonable modification is a physical change to the property to make it accessible or more usable for a disabled person.

The most obvious kind of modification is making a physical change in the common areas of a building or in an apartment. This might mean the construction of a ramp, widening of a doorway, installation of grab bars, or installation of a door light for a person who cannot hear the doorbell, or installing an automatic shutoff device on a stove to prevent fires when a tenant has a memory impairment.

As with reasonable accommodations, these are just a few examples, and there are many more modifications that a tenant may be entitled to in order to use and enjoy their housing.

Unlike reasonable accommodations, reasonable modifications almost always cost money. The question then is: who has to pay for the modification? The answer depends on what type of housing you live in.

The general rule for private housing is that a landlord must allow a tenant to make reasonable modifications to an apartment at the tenant's own expense if it would allow the tenant full enjoyment of the apartment.⁵⁶ In certain situations, a landlord is required to pay for the modifications needed by the tenant. For instance, landlords who own ten or more units in the same building must pay for reasonable modifications for disabled tenants.⁵⁷

Additionally, properties that receive federal funds, like public or subsidized housing, must make reasonable modifications at their own expense.⁵⁸

Even when they are required to pay for modifications under the law, the housing provider may not have to make them if a modification poses an undue administrative and financial burden. That said, the fact that a modification may cost a lot of money does not mean that it will cause an "undue hardship," unless the landlord can show that they can't afford it.⁵⁹ So, for example, a landlord may have to install a roll-in shower even though it is expensive, but not have to install a new elevator in a two-story building. The analysis of what costs too much depends on a number of factors, including the cost, the landlord’s overall resources, and the need for the accommodation.⁶⁰ For a listing of the different state and federal laws guaranteeing fair housing to people with disabilities, see the chart that follows.

d. Process for Requesting an Accommodation or Modification

Step 1: Tenant Makes the Request

The first step for a tenant to request an accommodation or modification from their landlord or property manager, is that the tenant – or someone on their behalf, with their permission – should make a request. The request does not need to include any “magic words” or phrases and needs to only make clear to the housing provider that the tenant is asking for a change because of a disability.⁶¹

The request can be verbal or in writing, but it is best practice to request in writing so there is a record of the request being made.

Often, a housing provider will have a Reasonable Accommodation / Modification Request Form. A tenant is not required to use any specific form to make the request, but may use the housing provider’s form if they prefer to do so.⁶²

Step 2: Housing Provider Reviews and Verifies the Request

When evaluating a request, the housing provider is permitted to verify that the tenant has a disability, that the disability is related to the request being made, and that the requested accommodation will ameliorate the symptoms of the disability.⁶³

Sometimes the disability and the disability-related need will be obvious. For example, if a tenant who relies on a wheelchair request that two front steps be ramped, the disability and the need will be readily apparent. In these cases, the housing provider may not do further investigation.⁶⁴

Where the disability or the disability-related need is not readily apparent, the housing provider may request medical verification to confirm the need for the accommodation. For example, a tenant with a panic disorder and anxiety disorder requests permission to have an assistance animal. The housing provider may request that the tenant provide a letter from a medical provider (doctor, therapist, social worker, etc.) confirming that the tenant has a disability and the disability-related need for the accommodation.

Step 3: Housing Provider Approves Request or Engage in Interactive Process

At this point, if the housing provider has sufficient information to determine that the request is reasonable and appropriate, they should approve the request.

If the housing provider believes the request poses an undue administrative and financial burden, that the request would result in a fundamental alteration, or that the tenant poses a direct threat, they should invite an interactive dialogue with the tenant to determine if an alternative accommodation would meet the needs of the disabled tenant without imposing an undue burden or fundamentally altering the provider’s operations. “Reasonable accommodation contemplates an interactive process between the parties and takes time.”⁶⁵

If no accommodation can be made that resolves the undue burden, fundamental alteration or direct threat, then the housing provider may deny the request.⁶⁶

Discrimination Based on Sex

While it is not extremely common for landlords to refuse to rent to someone explicitly because they are a man or a woman, discrimination based on sex most commonly occurs based on three different issues:

Domestic violence
LGBTQ discrimination
Sexual harassment

a. Domestic Violence

Landlords or housing providers often take action against survivors of domestic violence because they are or have experienced domestic violence. For example, a landlord might seek to evict a tenant who has been a victim of domestic violence because the landlord believes the tenant will allow their abuser to come back again and again. Or, a landlord might refuse to rent to a survivor of domestic violence believing if they have experienced domestic violence in the past, it’s likely they will again. Assumptions like this are often based in gender stereotypes, and as a result, may be illegal sex discrimination.⁶⁷

Additionally, if a landlord has a blanket policy of evicting everyone in a household after the police are called, that policy can unfairly result in the eviction of victims of domestic violence. And, because victims of domestic violence are disproportionately women, these policies may be illegal sex discrimination.⁶⁸

Survivors of domestic violence also have other legal rights, under both state and federal law. Massachusetts law, for example, provides survivors with the right to change their locks, break their lease early, and not be denied new housing because of their history of domestic violence.⁶⁹

Under the federal Violence Against Women Act (VAWA), survivors of domestic violence who live in, or are applying to live in, certain federally funded subsidized housing cannot be denied admission, denied assistance, terminated from participation, or evicted from those federal program if the basis for the denial or eviction is because of the domestic violence.⁷⁰

b. LGBTQ Discrimination

State and federal law also provide protections against discrimination in housing because of someone’s sexual orientation or gender identity. Massachusetts law has explicitly protected tenants against discrimination based on sexual orientation since 1989 and based on gender identity since 2012.⁷¹

In 2020, the U.S. Supreme Court recognized in the context of employment discrimination that discrimination “because of sex” includes discrimination because of sexual orientation or gender identity.⁷² Following the Court’s decision, the federal government issued guidance making clear that it interprets the federal Fair Housing Act’s prohibition against sex discrimination to prohibit discrimination based on sexual orientation or gender identity. While the federal government has since shifted its position, a number of federal courts have interpreted the FHA’s prohibition against sex discrimination to incorporate discrimination based on sexual orientation or gender identity.⁷³

It is illegal to refuse to rent to someone, treat them differently in housing, harass them, or evict them because they are lesbian, gay, bisexual, transgender, gender non-conforming, or non-binary. Studies performed using fair housing testers confirm that transgender and non-binary applicants for rentals often experience subtle discriminatory treatment – like being ghosted, told more about the negative aspects of a rental than cisgender applicants, or not being offered an application when a similarly situated cisgender applicant was given one.⁷⁴

c. Sexual Harassment

It is illegal for a housing provider, maintenance staff, or another tenant acting under the control of the landlord to harass you because of your sex.

Sexual harassment includes where a housing provider pressures a tenant to engage in sexual conduct in order to get an apartment or to not be evicted. For example, a landlord tells an applicant they will evict the tenant if they refuse to have sex with the landlord.

It also includes where a housing provider or their agent makes comments or engages in ongoing conduct that is so severe or pervasive that it changes the nature of the housing. For example, over a period of months, the on-staff maintenance man comes into a tenant’s apartment without their permission, tells the tenant how much they likes how the tenant looks and threatens not to make repairs if the tenant will not go out with them.

Sexual harassment is illegal discrimination. If you have experienced it, see the section at the end called Steps to Take If You Think You Have Been Discriminated Against. Both the U.S. Department of Housing and Urban Development and the U.S. Department of Justice have initiatives dealing with sexual harassment in housing, and complaints can be filed directly with them.

Special Issues Relating to Tenant Screening & Criminal Records

Subsidized and private housing providers more and more frequently utilize “tenant screening” companies to help them review rental applications. Or, they do their own screening of applicants to determine whether they have a criminal record, an eviction history, or poor (or no) credit. For information specifically about tenant screening processes, see Chapter 2: Tenant Screening. Tenant screening processes can affect tenants and applicants in discriminatory ways. While the factors being considered – eviction history, criminal history, credit history – are not explicitly discriminatory under the fair housing laws, they all can raise questions about how or why the housing provider is using them. This is because screening policies that affect protected classes can violate the fair housing laws if they are used in certain ways:

First, some housing providers do not apply screening policies equally. For example, a housing provider who wants to exclude Black applicants might claim they deny all applicants with certain criminal histories – but only apply that criminal history “policy” to Black applicants and not to white applicants with similar criminal records. This is treating people differently based on race, and is illegal, but it may be hard to spot because the housing provider claims it uses its policy similarly across the board.

Second, even if a housing provider has a neutral policy that they apply in the same way to everyone, that policy can still have a disparate impact. Unlike the example above where applicants were treated differently because of their protected class – called disparate treatment by the courts – a disparate impact occurs when a policy on its face treats people the same but has a disproportionate, unfair, impact on a protected class (or classes).⁷⁵ These are complex legal questions, and it is a good idea to consult an attorney if you think you are being denied due to a discriminatory policy.

For Example

A credit history on its face may appear to be a neutral, non-discriminatory factor because a credit history is supposed to help evaluate whether an applicant is likely to pay their rent going forward. However, screening applicants out because they have poor credit can act to disproportionately exclude applicants with vouchers – whose ability to pay the rent is at least partially covered by their voucher.⁷⁶

Similarly, employing a screening criterion that applicants have “no housing court history” can act to disproportionately exclude Black women, who face eviction at higher rates.⁷⁷

a. Criminal History Screening and Race or National Origin

One common example of policies that can have a disparate impact on protected classes are policies screening out applicants based on criminal histories. Applicants for both public and private housing are frequently denied because they have a criminal history.⁷⁸ For detailed information about your rights if you are looking for housing and have a criminal record see CORI and Housing.

In addition to rights you may have under CORI laws, the fair housing laws protect against discriminatory uses of criminal records. Denying an applicant because they have a criminal history is not, by itself, considered discriminatory. However, if a housing provide only turns away Black applicants with criminal histories, that would be race discrimination. And, if a housing provider has an overly restrictive screening policy that disproportionately, and unnecessarily excludes Black or Latine applicants, that could also be discrimination.

For example, a blanket policy that excludes anyone with a criminal history, no matter for what or no matter how old the conviction, is likely to have a disproportionate impact on communities of color due to racial disparities in policing and interaction with the criminal justice system.⁷⁹ To avoid having a discriminatory impact, criminal history screening policies should be narrowly tailored and only consider convictions (and not arrests), take into consideration the age of a conviction and its relevance to being a “good” tenant, and consider mitigating evidence, such as evidence of more recent tenant history or evidence of rehabilitation.⁸⁰

b. Criminal History Screening and Disability

Sometimes, someone may have a criminal history as a result of a disability: for example, someone may have a criminal history because they have a history of untreated mental illness, substance use disorder, or alcohol use disorder.⁸¹ However, when a criminal history is because of a disability, you may have the right to a reasonable accommodation to have the criminal history overlooked in the application process.

As noted in Discrimination Based on Disability, individuals with alcohol use disorder or substance use disorder (who are not current users of illegal drugs) are considered disabled under the antidiscrimination laws – and therefore entitled to reasonable accommodation rights.⁸²

You may be able to challenge the landlord's refusal to rent to you by asking for a reasonable accommodation. This could mean that the landlord makes an exception to a criminal history policy based on your disability. This is difficult and complicated. You should consult a lawyer if you plan to do this. In general, you must show that what happened before is not likely to happen again. You can do this by showing evidence of new or different treatment or supportive services; that enough time has passed since you were using illegal drugs or alcohol to reassure a reasonable person that you are unlikely to relapse;⁸³ other evidence of rehabilitation; and/or and that the issues raised by your CORI are extremely unlikely to reoccur.

Ultimately, you should aim to demonstrate to the landlord that you have gone through treatment and rehabilitation and that your past substance abuse, which may have led to your having a CORI, likely will not pose a threat to the health or safety of other tenants or yourself.

c. Challenging a Denial

If you want to challenge a housing provider’s denial of housing because you believe the denial is discriminatory based on (for example) race or national origin, or you believe you are entitled to a reasonable accommodation see Steps to Take If You Think You Have Been Discriminated Against, below, for how to document, seek help, or file a complaint if you think you’ve been discriminated against.

If you live in subsidized or public housing, your rights are different. For more information go to:

Housing Rights for People with Disabilities: Comparison of State and Federal Law

Housing Rights for People with Disabilities: Comparison of State and Federal Law
The Law	What Housing Is Covered	Reasonable Accommodation	Multi-family Units Constructed After March 13, 1991
State Law G.L. c. 151B, §4(7A)	Broad discrimination protections with respect to all housing other than owner-occupied, 2-family units.	Reasonable accommodations required in rules, policies, practices, or services. Landlord must pay for reasonable physical modifications in publicly assisted housing and all buildings with 10 or more units. Tenant must pay for modifications in other rental properties, but landlord cannot unreasonably refuse permission for modifications.	Units on first floor and, if there is an elevator, other floors must be adaptable in apartment buildings with three or more units. Five percent of new buildings with 20 or more units must also have large kitchens and bathrooms (Access Board can change this percentage).
Federal Fair Housing Act 42 U.S.C. §3604(f)(3)	Broad discrimination protections with respect to all housing other than owner-occupied housing with 4 (or fewer) units.	Reasonable accommodations required in rules, policies, practices, or services. Tenant must pay for all physical modifications, but landlord cannot refuse permission for tenant to make reasonable modifications.	First floor and, if there is an elevator, other floors must be adaptable in apartment buildings with four or more units.

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Discrimination Against Families with Children

Families with children are protected from discrimination by the fair housing laws.²² The law also protects people who are pregnant and households in the process of adopting a child, getting custody of a child, getting guardianship of a child, or who provide foster care for children.²³ It is illegal for landlords to refuse to rent to you or in any way discriminate against you because you have or are expecting children.

For Example

If you are a mother with three kids, a real estate agent cannot tell you that you would be overcrowded in an apartment but then rent the same place to four students. Similarly, a landlord cannot refuse to show you an apartment because it has lead paint. And a landlord cannot charge you a larger security deposit or insist on more frequent inspections because you have children.

In some circumstances, however, the law does allow Massachusetts landlords to exclude families with children. In general, there are two types of housing where this may be allowed:

Two-family homes where the owners are occupants;²⁴ and
Certain buildings intended for and occupied by people over 55 years old.²⁵

Yet, even where an owner-occupant can legally refuse to rent to children, a landlord is not protected by state or federal law if they publish, advertises, or makes any written or verbal statements that they will not rent to children.²⁶ Most landlords do not put ads in the paper that say "no children, please" because they know that would be illegal. But some landlords do instruct real estate brokers and managers not to rent to families with kids or to reject them on some made-up grounds. A broker violates the law if they carry out the instructions of an owner-occupant of a two-family building and refuses to show or rent a property to families with children.²⁷

a. Lead Paint

Because lead poisoning is so serious, Massachusetts law requires owners to delead apartments whenever a child under the age of six lives in the property.²⁸ State law also makes it illegal for a landlord to refuse to rent to you and your children because an apartment has lead paint. Landlords must delead an apartment if you want to rent it and you have a child under the age of six. However, because the process of deleading is expensive, landlords frequently attempt to avoid this expense by not renting to families with children. Landlords will often say something like “Unfortunately, I can’t rent to you because the unit doesn’t have a lead certificate.” This is wrong: the landlord can rent to you, but they have to go through the process of abating any lead hazards first.²⁹ You should still ask to see the apartment and ask for an application, if you want to rent it. The landlord should take steps to delead it and make it available if you are approved. If they do not or they deny your application in a suspicious way, they may be discriminating.

A common, but subtle, way of discriminating against families with children is to ask the ages of the children on the rental application. You do not have to tell the ages of your children. Simply list the names of everyone who will be living in the apartment without listing their ages. If a landlord insists on knowing how old your children are, it may be a sign she intends to discriminate against you because you need a deleaded apartment. If this happens, read the section on Steps to Take If You Think You Have Been Discriminated Against.³⁰

If you have a Section 8 certificate or voucher, most housing authorities will not allow you to rent a place that is not certified as "lead-free."³¹ In these cases, a landlord must delead the apartment.³² They cannot simply refuse to rent to you or refuse to accept your Section 8.³³ For more see section on Discrimination Based Upon Receipt of Public Assistance.

b. Apartment Size

If you have kids, you may find that landlords, especially public or subsidized housing landlords, require you to rent apartments with a certain number of bedrooms, perhaps more than you need or can afford – or turn you away from units that you believe are large enough, but they say would be too small. For example, many public housing authorities have a rule requiring a single parent with a young child to apply for a 2-bedroom apartment. Although the rule allows two adults to share a 1-bedroom apartment, the rule would prevent a mother and her baby from being in the same room. This violates the federal and state fair housing laws because a 2-person family with a child is being treated differently than 2-person household without a child.³⁴ However, a landlord is sometimes allowed to reject tenants based on the size of their family in order to comply with state and local housing codes, but can do so only as long as the landlord treats all tenants the same when complying with the these housing codes.³⁵

Discrimination Based on Race or National Origin

Although housing discrimination based on a person's race or national origin is illegal, people of color still experience discrimination at high rates.³⁶ According to the 2020 U.S. Census figures, people of color in Massachusetts continue to be in much greater concentrations in cities, while the suburbs remain overwhelmingly white.³⁷ Segregation this severe and this widespread does not happen by chance.

Sometimes the discrimination can be blatant, such as when a landlord says: "I don't want to rent to Spanish people." More often it is subtle, where you are shown houses or apartments only in areas where everyone else looks like you. For example, if you are Black and you are only shown apartments in neighborhoods where there is a large number of other Black people. Other times, you may simply not get a call back. Many non-white populations face high rates of housing discrimination. Hispanic or Latine people or people with accents may simply not receive a return phone call. People of Middle Eastern descent also face high rates of discrimination – based on race, national origin or religion. Similarly, Asian Americans have faced high rates of discrimination, in particular following the COVID-19 pandemic.

A landlord may run uniform background checks to ensure ability to pay rent or fitness as a tenant. But asking about race and ethnicity are impermissible inquiries.³⁸ You cannot be asked about what your religion is or told that you cannot have guests or visitors of a certain race. If you are being asked questions about your race or ethnicity, you may be the victim of discrimination. For more information about what to do and who to call for help see the section in this chapter called Steps to Take If You Think You Have Been Discriminated Against.

Bias Against Immigrants

Relatedly, many people who are recent arrivals face discrimination. Landlords also make assumptions about someone’s citizenship status based on their national origin, perceived national origin, or because they do not speak English. A landlord may assume that someone whose family came to the United States decades ago is an undocumented immigrant. Turning someone away for that reason is illegal.

Discrimination Based on Receipt of Public or Rental Assistance

It is illegal under state law to discriminate in renting housing because a person receives some form of public assistance, including welfare, medical assistance, or rental assistance. Thus, if a landlord says they don’t take Section 8, or require all tenants to have employment income (as opposed to SSDI for example), that is discriminatory under Massachusetts law.

It is also illegal to discriminate against a person because of the requirements of these programs.³⁹ For example, a tenant with a Section 8 voucher can rent an apartment only if their landlord signs a lease. No lease, no subsidy. If a landlord says they will not rent to you because they don’t want to do a lease, that is unlawful under state law.⁴⁰ It may also be discrimination if the landlord refuses to take payments (called vendor payments) from the Department of Transitional Assistance.

If you run up against a landlord or agent who refuses to rent to you because you have a rental subsidy or receive other public assistance, you should promptly report your complaint to the local housing authority or regional nonprofit agency that gave you the housing subsidy. These agencies have a duty to assist you in filing a complaint.⁴¹ You should also reach out to a fair housing agency for help. You can find the contact information for different fair housing agencies in the section called Steps to Take If You Think You Have Been Discriminated Against.

Discrimination Based on Disability

Disabled tenants are protected against housing discrimination under state and federal law.⁴² In addition, these same antidiscrimination laws give disabled people affirmative rights in housing: the right to reasonable accommodations and to reasonable modifications.⁴³

These laws seek to ensure that disabled people are not unnecessarily excluded from living in the community: our country has a long history of segregating disabled people or housing them unnecessarily in institutional settings.⁴⁴ Fair housing laws seek to remedy this exclusion.

a. The Right to Not Face Discrimination

It is illegal for a landlord to take any of the negative actions defined in the earlier parts of this chapter because someone is disabled. Thus, it is illegal to refuse to rent to someone because they have a disability, or to evict someone because they have a disability. For example, if a landlord refuses to rent to someone who has been in recovery from Substance Use Disorder without a relapse for years, or learns that a tenant is HIV-positive, and tries to evict them as a result, that would likely be illegal discrimination.⁴⁵

It is also illegal to make discriminatory statements based on disability, harass a tenant based on their disability or a household member’s disability, or take other negative actions against an applicant or tenant because of their disability.

The law protects against actions taken because of a tenant’s disability, but also because the landlord perceives them to be disabled (even if they are not) or because they have a history of disability.⁴⁶ State and federal laws prohibit virtually every kind of housing discrimination against people with almost all kinds of disabilities, including the refusal to make needed accommodations and modifications because of a disability.⁴⁷ Thus, a blind person, someone with epilepsy, AIDS, or alcoholism, or someone who suffers from depression or is developmentally disabled, has the right to rent and remain in an apartment, just like anyone else.

There are three definitions of disability used by the fair housing laws:

A "physical or mental impairment that substantially limits one or more life activities." This means that if you have a physical or mental condition or disease that prevents you from performing such tasks as walking, seeing, hearing, talking, breathing, holding a job, paying bills, or understanding things, you may be considered disabled. Also, the condition or disease must limit your activities to a great degree and for a long or substantial period of time.
A record of having a physical or mental impairment that substantially limits one or more life activities; or
A person who is considered by others to have a physical or mental impairment that substantially limits one or more life activities.⁴⁸

You are protected against discrimination on all of these bases.

b. Reasonable Accommodation

Under the law, disabled people have the right to reasonable accommodations in their housing.

A reasonable accommodation is a change in a rule, a policy, or a practice of the landlord (compare below to Reasonable Modification – a physical change to the property).⁴⁹ For example, if a landlord has a rule that tenants cannot have dogs, and you need an assistance animal (also called an emotional support animal) or a service animal, the landlord should waive the "no pet" rule for you.⁵⁰

Other examples of reasonable accommodations might include:

Transferring a tenant with a mobility disability to a vacant first-floor apartment, even if the lease on their fourth-floor apartment has months to run.
Allowing a tenant with a mobility disability to have a designated parking spot close to the building entrance or exit so they can access their car.
Agreeing to send out all notices in large-point font to allow a blind tenant to read mailings from the landlord.
Pausing or stopping eviction proceedings when the tenant is facing eviction due to disability-related behavior and they have new supportive services that will help them not violate the lease going forward.⁵¹

These are just a few examples. There are many other types of accommodations. Accommodations are highly individualized, and will be different for each person, based on their disability-related needs.

As the examples above show, a landlord's duty to reasonably accommodate the needs of disabled people applies not only to those with physical disabilities, but also to those with mental disabilities.

As noted above, a landlord must grant an accommodation related to the disability if it is requested and will ameliorate the symptoms of the disability, and does not pose an undue financial and administrative burden.⁵² An undue financial and administrative burden is not any burden – many accommodations will pose some burden to the landlord – but one that is too much to reasonably expect the landlord to carry out. Thus, it may be unreasonable to expect a small or moderate landlord to provide an accommodation that costs a lot of money.

An accommodation also cannot pose a “fundamental alteration” to the landlord – that is, it cannot ask a landlord to do something that the landlord would not do as part of their ordinary business.⁵³ Thus, although it might be helpful to a tenant, it is likely not a reasonable accommodation to expect a landlord to drive a mobility-impaired tenant to the bank to get a rent check.

Another reason why a landlord might not have to grant a reasonable accommodation is if, even with the accommodation, the tenant would pose a “direct threat” to the health or safety of other tenants or people on the property. Thus, while the reasonable accommodation laws might require a landlord to delay the eviction of a tenant with a mental health disability who was causing minimal property damage and not disturbing other tenants,⁵⁴ an accommodation might not be reasonable if other tenants have been threatened or seriously disturbed by the tenant requesting an accommodation.⁵⁵

In Housing Court there is a program called the Tenancy Preservation Program which specifically helps households with mental health challenges preserve their tenancy and works with landlords to develop reasonable accommodations. If you think a referral might be helpful, you can ask court staff about a referral or reach out using the contact information online.

c. Reasonable Modification

A reasonable modification is a physical change to the property to make it accessible or more usable for a disabled person.

The most obvious kind of modification is making a physical change in the common areas of a building or in an apartment. This might mean the construction of a ramp, widening of a doorway, installation of grab bars, or installation of a door light for a person who cannot hear the doorbell, or installing an automatic shutoff device on a stove to prevent fires when a tenant has a memory impairment.

As with reasonable accommodations, these are just a few examples, and there are many more modifications that a tenant may be entitled to in order to use and enjoy their housing.

Unlike reasonable accommodations, reasonable modifications almost always cost money. The question then is: who has to pay for the modification? The answer depends on what type of housing you live in.

The general rule for private housing is that a landlord must allow a tenant to make reasonable modifications to an apartment at the tenant's own expense if it would allow the tenant full enjoyment of the apartment.⁵⁶ In certain situations, a landlord is required to pay for the modifications needed by the tenant. For instance, landlords who own ten or more units in the same building must pay for reasonable modifications for disabled tenants.⁵⁷

Additionally, properties that receive federal funds, like public or subsidized housing, must make reasonable modifications at their own expense.⁵⁸

Even when they are required to pay for modifications under the law, the housing provider may not have to make them if a modification poses an undue administrative and financial burden. That said, the fact that a modification may cost a lot of money does not mean that it will cause an "undue hardship," unless the landlord can show that they can't afford it.⁵⁹ So, for example, a landlord may have to install a roll-in shower even though it is expensive, but not have to install a new elevator in a two-story building. The analysis of what costs too much depends on a number of factors, including the cost, the landlord’s overall resources, and the need for the accommodation.⁶⁰ For a listing of the different state and federal laws guaranteeing fair housing to people with disabilities, see the chart that follows.

d. Process for Requesting an Accommodation or Modification

Step 1: Tenant Makes the Request

The first step for a tenant to request an accommodation or modification from their landlord or property manager, is that the tenant – or someone on their behalf, with their permission – should make a request. The request does not need to include any “magic words” or phrases and needs to only make clear to the housing provider that the tenant is asking for a change because of a disability.⁶¹

The request can be verbal or in writing, but it is best practice to request in writing so there is a record of the request being made.

Often, a housing provider will have a Reasonable Accommodation / Modification Request Form. A tenant is not required to use any specific form to make the request, but may use the housing provider’s form if they prefer to do so.⁶²

Step 2: Housing Provider Reviews and Verifies the Request

When evaluating a request, the housing provider is permitted to verify that the tenant has a disability, that the disability is related to the request being made, and that the requested accommodation will ameliorate the symptoms of the disability.⁶³

Sometimes the disability and the disability-related need will be obvious. For example, if a tenant who relies on a wheelchair request that two front steps be ramped, the disability and the need will be readily apparent. In these cases, the housing provider may not do further investigation.⁶⁴

Where the disability or the disability-related need is not readily apparent, the housing provider may request medical verification to confirm the need for the accommodation. For example, a tenant with a panic disorder and anxiety disorder requests permission to have an assistance animal. The housing provider may request that the tenant provide a letter from a medical provider (doctor, therapist, social worker, etc.) confirming that the tenant has a disability and the disability-related need for the accommodation.

Step 3: Housing Provider Approves Request or Engage in Interactive Process

At this point, if the housing provider has sufficient information to determine that the request is reasonable and appropriate, they should approve the request.

If the housing provider believes the request poses an undue administrative and financial burden, that the request would result in a fundamental alteration, or that the tenant poses a direct threat, they should invite an interactive dialogue with the tenant to determine if an alternative accommodation would meet the needs of the disabled tenant without imposing an undue burden or fundamentally altering the provider’s operations. “Reasonable accommodation contemplates an interactive process between the parties and takes time.”⁶⁵

If no accommodation can be made that resolves the undue burden, fundamental alteration or direct threat, then the housing provider may deny the request.⁶⁶

Discrimination Based on Sex

While it is not extremely common for landlords to refuse to rent to someone explicitly because they are a man or a woman, discrimination based on sex most commonly occurs based on three different issues:

Domestic violence
LGBTQ discrimination
Sexual harassment

a. Domestic Violence

Landlords or housing providers often take action against survivors of domestic violence because they are or have experienced domestic violence. For example, a landlord might seek to evict a tenant who has been a victim of domestic violence because the landlord believes the tenant will allow their abuser to come back again and again. Or, a landlord might refuse to rent to a survivor of domestic violence believing if they have experienced domestic violence in the past, it’s likely they will again. Assumptions like this are often based in gender stereotypes, and as a result, may be illegal sex discrimination.⁶⁷

Additionally, if a landlord has a blanket policy of evicting everyone in a household after the police are called, that policy can unfairly result in the eviction of victims of domestic violence. And, because victims of domestic violence are disproportionately women, these policies may be illegal sex discrimination.⁶⁸

Survivors of domestic violence also have other legal rights, under both state and federal law. Massachusetts law, for example, provides survivors with the right to change their locks, break their lease early, and not be denied new housing because of their history of domestic violence.⁶⁹

Under the federal Violence Against Women Act (VAWA), survivors of domestic violence who live in, or are applying to live in, certain federally funded subsidized housing cannot be denied admission, denied assistance, terminated from participation, or evicted from those federal program if the basis for the denial or eviction is because of the domestic violence.⁷⁰

b. LGBTQ Discrimination

State and federal law also provide protections against discrimination in housing because of someone’s sexual orientation or gender identity. Massachusetts law has explicitly protected tenants against discrimination based on sexual orientation since 1989 and based on gender identity since 2012.⁷¹

In 2020, the U.S. Supreme Court recognized in the context of employment discrimination that discrimination “because of sex” includes discrimination because of sexual orientation or gender identity.⁷² Following the Court’s decision, the federal government issued guidance making clear that it interprets the federal Fair Housing Act’s prohibition against sex discrimination to prohibit discrimination based on sexual orientation or gender identity. While the federal government has since shifted its position, a number of federal courts have interpreted the FHA’s prohibition against sex discrimination to incorporate discrimination based on sexual orientation or gender identity.⁷³

It is illegal to refuse to rent to someone, treat them differently in housing, harass them, or evict them because they are lesbian, gay, bisexual, transgender, gender non-conforming, or non-binary. Studies performed using fair housing testers confirm that transgender and non-binary applicants for rentals often experience subtle discriminatory treatment – like being ghosted, told more about the negative aspects of a rental than cisgender applicants, or not being offered an application when a similarly situated cisgender applicant was given one.⁷⁴

c. Sexual Harassment

It is illegal for a housing provider, maintenance staff, or another tenant acting under the control of the landlord to harass you because of your sex.

Sexual harassment includes where a housing provider pressures a tenant to engage in sexual conduct in order to get an apartment or to not be evicted. For example, a landlord tells an applicant they will evict the tenant if they refuse to have sex with the landlord.

It also includes where a housing provider or their agent makes comments or engages in ongoing conduct that is so severe or pervasive that it changes the nature of the housing. For example, over a period of months, the on-staff maintenance man comes into a tenant’s apartment without their permission, tells the tenant how much they likes how the tenant looks and threatens not to make repairs if the tenant will not go out with them.

Sexual harassment is illegal discrimination. If you have experienced it, see the section at the end called Steps to Take If You Think You Have Been Discriminated Against. Both the U.S. Department of Housing and Urban Development and the U.S. Department of Justice have initiatives dealing with sexual harassment in housing, and complaints can be filed directly with them.

Special Issues Relating to Tenant Screening & Criminal Records

Subsidized and private housing providers more and more frequently utilize “tenant screening” companies to help them review rental applications. Or, they do their own screening of applicants to determine whether they have a criminal record, an eviction history, or poor (or no) credit. For information specifically about tenant screening processes, see Chapter 2: Tenant Screening. Tenant screening processes can affect tenants and applicants in discriminatory ways. While the factors being considered – eviction history, criminal history, credit history – are not explicitly discriminatory under the fair housing laws, they all can raise questions about how or why the housing provider is using them. This is because screening policies that affect protected classes can violate the fair housing laws if they are used in certain ways:

First, some housing providers do not apply screening policies equally. For example, a housing provider who wants to exclude Black applicants might claim they deny all applicants with certain criminal histories – but only apply that criminal history “policy” to Black applicants and not to white applicants with similar criminal records. This is treating people differently based on race, and is illegal, but it may be hard to spot because the housing provider claims it uses its policy similarly across the board.

Second, even if a housing provider has a neutral policy that they apply in the same way to everyone, that policy can still have a disparate impact. Unlike the example above where applicants were treated differently because of their protected class – called disparate treatment by the courts – a disparate impact occurs when a policy on its face treats people the same but has a disproportionate, unfair, impact on a protected class (or classes).⁷⁵ These are complex legal questions, and it is a good idea to consult an attorney if you think you are being denied due to a discriminatory policy.

For Example

A credit history on its face may appear to be a neutral, non-discriminatory factor because a credit history is supposed to help evaluate whether an applicant is likely to pay their rent going forward. However, screening applicants out because they have poor credit can act to disproportionately exclude applicants with vouchers – whose ability to pay the rent is at least partially covered by their voucher.⁷⁶

Similarly, employing a screening criterion that applicants have “no housing court history” can act to disproportionately exclude Black women, who face eviction at higher rates.⁷⁷

a. Criminal History Screening and Race or National Origin

One common example of policies that can have a disparate impact on protected classes are policies screening out applicants based on criminal histories. Applicants for both public and private housing are frequently denied because they have a criminal history.⁷⁸ For detailed information about your rights if you are looking for housing and have a criminal record see CORI and Housing.

In addition to rights you may have under CORI laws, the fair housing laws protect against discriminatory uses of criminal records. Denying an applicant because they have a criminal history is not, by itself, considered discriminatory. However, if a housing provide only turns away Black applicants with criminal histories, that would be race discrimination. And, if a housing provider has an overly restrictive screening policy that disproportionately, and unnecessarily excludes Black or Latine applicants, that could also be discrimination.

For example, a blanket policy that excludes anyone with a criminal history, no matter for what or no matter how old the conviction, is likely to have a disproportionate impact on communities of color due to racial disparities in policing and interaction with the criminal justice system.⁷⁹ To avoid having a discriminatory impact, criminal history screening policies should be narrowly tailored and only consider convictions (and not arrests), take into consideration the age of a conviction and its relevance to being a “good” tenant, and consider mitigating evidence, such as evidence of more recent tenant history or evidence of rehabilitation.⁸⁰

b. Criminal History Screening and Disability

Sometimes, someone may have a criminal history as a result of a disability: for example, someone may have a criminal history because they have a history of untreated mental illness, substance use disorder, or alcohol use disorder.⁸¹ However, when a criminal history is because of a disability, you may have the right to a reasonable accommodation to have the criminal history overlooked in the application process.

As noted in Discrimination Based on Disability, individuals with alcohol use disorder or substance use disorder (who are not current users of illegal drugs) are considered disabled under the antidiscrimination laws – and therefore entitled to reasonable accommodation rights.⁸²

You may be able to challenge the landlord's refusal to rent to you by asking for a reasonable accommodation. This could mean that the landlord makes an exception to a criminal history policy based on your disability. This is difficult and complicated. You should consult a lawyer if you plan to do this. In general, you must show that what happened before is not likely to happen again. You can do this by showing evidence of new or different treatment or supportive services; that enough time has passed since you were using illegal drugs or alcohol to reassure a reasonable person that you are unlikely to relapse;⁸³ other evidence of rehabilitation; and/or and that the issues raised by your CORI are extremely unlikely to reoccur.

Ultimately, you should aim to demonstrate to the landlord that you have gone through treatment and rehabilitation and that your past substance abuse, which may have led to your having a CORI, likely will not pose a threat to the health or safety of other tenants or yourself.

c. Challenging a Denial

If you want to challenge a housing provider’s denial of housing because you believe the denial is discriminatory based on (for example) race or national origin, or you believe you are entitled to a reasonable accommodation see Steps to Take If You Think You Have Been Discriminated Against, below, for how to document, seek help, or file a complaint if you think you’ve been discriminated against.

If you live in subsidized or public housing, your rights are different. For more information go to:

Housing Rights for People with Disabilities: Comparison of State and Federal Law

Housing Rights for People with Disabilities: Comparison of State and Federal Law
The Law	What Housing Is Covered	Reasonable Accommodation	Multi-family Units Constructed After March 13, 1991
State Law G.L. c. 151B, §4(7A)	Broad discrimination protections with respect to all housing other than owner-occupied, 2-family units.	Reasonable accommodations required in rules, policies, practices, or services. Landlord must pay for reasonable physical modifications in publicly assisted housing and all buildings with 10 or more units. Tenant must pay for modifications in other rental properties, but landlord cannot unreasonably refuse permission for modifications.	Units on first floor and, if there is an elevator, other floors must be adaptable in apartment buildings with three or more units. Five percent of new buildings with 20 or more units must also have large kitchens and bathrooms (Access Board can change this percentage).
Federal Fair Housing Act 42 U.S.C. §3604(f)(3)	Broad discrimination protections with respect to all housing other than owner-occupied housing with 4 (or fewer) units.	Reasonable accommodations required in rules, policies, practices, or services. Tenant must pay for all physical modifications, but landlord cannot refuse permission for tenant to make reasonable modifications.	First floor and, if there is an elevator, other floors must be adaptable in apartment buildings with four or more units.

Endnotes

1:

22. Massachusetts law prohibits discrimination in housing because a child or children will occupy the rented premises, but exempts: (1) two-family owner-occupied buildings; (2) buildings with three or fewer units if one unit "is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship"; and (3) a temporary rental (less than one year) of the owner’s principal place of residence. G.L. c. 151B, §§4(11)(1)-(11)(3). These exemptions, however, do not apply to §4(7B)'s ban on discriminatory statements and advertising, nor do they apply to persons whose business includes engaging in residential real estate-related transactions. See 804 C.M.R. §§2.01(4)(b)-(4)(c).

The federal Fair Housing Act, 42 U.S.C. §§3602(k), 3604, and 3606, forbids housing discrimination based on "familial status." "Familial status" was added by the Fair Housing Amendments Act of 1988. The federal law does not apply to owner-occupants of one- to four-family homes (the so-called "Mrs. Murphy" exemption). 42 U.S.C. §3603(b)(2); 24 C.F.R. §100.10(c)(2). The rental or sale of a single-family house by an owner who has not sold a house within the previous 24 months, who does not own more than three single-family houses, who does not use a real estate agent or broker to sell or rent the house, and who does not use a discriminatory advertisement, is also exempt from the Act. 42 U.S.C. §3603(b)(1); 24 C.F.R. §100.10(c)(1). Similar to Massachusetts law, the Fair Housing Act's ban on discriminatory statements and advertising (contained in 42 U.S.C. §3604(c)) is not subject to these exemptions. 42 U.S.C. §3603(b). Moreover, even where a landlord does have an exemption, the landlord's broker may not legally discriminate against children. See 42 U.S.C. §3605.

23. See 42 U.S.C. §3602(k); 804 C.M.R. §2.02(2); see also Gorski v. Troy, 929 F.2d 1183, 1187-90 (7th Cir. 1991). See also, G.L. c. 186, § 16, stating that any lease or rental agreement that terminates the contract if the tenant has or will have a child is void and against public policy.

24. See G.L. c. 151B §4(11)(2). A landlord is also allowed to exclude children where a dwelling contains three apartments or less and one of the units is occupied by an elderly or infirm person for whom the presence of children would constitute a hardship. G.L. c. 151B, §4(11)(1). The law also allows children to be excluded when a landlord temporarily leases (for up to one year) a single-family residence or unit that the landlord ordinarily occupied as their principal residence. G.L. c. 151B §4(11)(2).

25. See 42 U.S.C. §§3607(b)(1)-(3). The Massachusetts law prohibiting housing discrimination against families with children does not specifically exempt housing for older person, see G.L. c. 151B §4(11); however, the prohibition against housing discrimination based on age does contain such a limitation. See G.L. c. 151B §§4(6)-(7).

26. See 42 U.S.C. §3604(c); G.L. c. 151B, §4(7B).

27. See 42 U.S.C. §3605; G.L. c. 151B, §4(3B).

28. The Massachusetts Lead Poisoning Prevention and Control statute is at G.L. c. 111, §190. The law requires all owners of residential buildings to remove or cover lead paint in places where a child under the age of six lives or seeks to live. The law specifically applies to an owner who tries to avoid lead paint liability by discriminating against a family with children, even if that family does not yet reside in the apartment or house. G.L. c. 111, §199A.

G.L. c. 151B, §4(11) specifically obligates the Mass. Commission Against Discrimination or a court which finds discrimination against families with children because of the presence of lead paint to refer such cases to the director of the Childhood Lead Poisoning Prevention Program which is located in Boston.

29. G.L. c. 111, §197(h) states that an owner undertaking lead abatement work may “reasonably delay the commencement of [a] tenancy” by up to 30 days. However, federal law prohibits providing housing on different terms and conditions, 42 U.S.C. §3604(b). The date a property is available for rental is a term and condition of the tenancy/rental. To the extent that the Massachusetts Lead Law conflicts with the requirement of the federal FHA, the federal statute preempts state law. See Astralis Condo. Ass’n v. Sec’y, U.S. Dep’t of Hous. & Urb. Dev., 620 F.3d 62, 70 (1st Cir. 2010); see also Warren v. Delvista Towers Condo. Ass’n, Inc., 49 F.Supp. 3d 1082, 1088-89 (S.D. Fla. 2014).

30. However, depending on the reason for the question, it may be possible for a landlord or their agent to inquire about the age of children who may be tenants. At least one court has upheld the decision of a HUD Administrative Law Judge who concluded that the Fair Housing Act was not violated when a real estate agent asked a prospective tenant about the number and age of their children in order to secure a quiet neighbor for an existing elderly tenant. Soules v. U.S. Dept. of Housing and Urban Development, 967 F2d 817 (2nd Cir. 1992).

31. Two federal acts require landlords, including landlords with units paid for by Section 8 vouchers, to inspect apartments in which children live or will live for lead paint. See 42 U.S.C. §§4821-4846 (the Lead-Based Paint Poisoning Prevention Act) and 42 U.S.C. §4851 (Residential Lead-Based Paint Hazard Reduction Act of 1992). See also Voucher Program Guidebook: Housing Choice, U.S. Dept. of Housing and Urban Development, https://www.hud.gov/program_offices/public_indian_housing/programs/hcv/…;

The EOHLC policy was, in part, a reaction to the holding in the case of Ayala v. Boston Housing Auth., 404 Mass. 689 (1989), which held that the Boston Housing Authority had a duty to inspect a Section 8 unit for lead paint and might be liable for a child's poisoning in a unit that it failed to inspect. The court also held that the tenants were third-party beneficiaries of the contracts between BHA and the landlord and could thus sue for breach of those contracts. If a landlord denies you housing because you are a Section 8 recipient and the rules of the program demand that they delead the unit, then they may be discriminating on the basis of your receipt of a rental subsidy in violation of G.L. c. 151B, §4(10), which prohibits discrimination " … because of any requirement of such … rental assistance or housing subsidy program." If the discrimination was based on the receipt of rental assistance, then the exemption for owner-occupants of two-family homes does not apply. No owner can discriminate on this basis.

32. See G.L. c. 111, § 197 (requiring landlords to remove, abate, or contain lead paint in a unit rented to a family with children under six years of age.) As noted in n.29, state law states that if there is not yet an executed lease, the landlord may delay the start of the tenancy, no longer than thirty days, to delead the apartment, G.L. c. 111, § 197(h), however, this provision cannot justify a violation of 42 U.S.C. §3604(b).

33. It is also illegal for landlords to refuse to accept Section 8 or any rental assistance subsidy. See G.L. c. 151B, § 4(10).

34. 42 U.S.C. §3604(b), as amended by the 1988 Act, explicitly forbids discrimination 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 therewith, because of … familial status." In Glover v. Crestwood Lake Section 1 Holding Corps., 746 F. Supp. 301, 309-10 (S.D.N.Y. 1990), the court held that a landlord's refusal to rent a one-bedroom unit to a person with a child, or a two-bedroom unit to a person with three children, violates the Fair Housing Act since the landlord had rented these apartments to childless households of the same size.

35. See 42 U.S.C. §3607(b)(1); G.L. 151B, §4(11). Also, see the State Sanitary Code, 1054 C.M.R. §410.420(D), requiring 150 feet of floor space for the first occupant, and 100 square feet for each additional occupant with 50 square feet per person for shared bedrooms

36. A national study sponsored by the U.S. Department of Housing and Urban Development (HUD), found that African-American and Latine/Hispanic people looking for rental apartments are still discriminated against in cities across the country. Turner et al., Housing Discrimnation Against Racial and Ethnic Minorities 2012 (Washington, DC, HUD 2013), available at ; see also Langowski et al, Qualified Renters Need Not Apply Race and Voucher Discrimination in the Metro Boston Rental Housing Market (July 2020) (finding that evidence of discrimination based on race in 71% of tests), available at https://www.suffolk.edu/-/media/suffolk/documents/news/2020/law-news/rental_housing_study_july2020.pdf?la=en&hash=B0FFF5916ECA23DFD054170DA223780EDA571241.

37. All of the 2020 Census data relating to Massachusetts can be found at https://www.sec.state.ma.us/census2020/index.html. See also Race, Place, and Segregation: Redrawing the Color Line in Our Nation's Metros, a study by the Civil Rights Project, the John F. Kennedy School of Government at Harvard University, CommUNIRY 2000, and The Leadership Council for Metropolitan Open Communities (2002), available at: http://www.civilrights.org/publications/community2000/metro_open_comm.html.

38. See, e.g., Soules v. U.S. Dept. of Housing and Urban Development, 967 F.2d 817, 824 (2d Cir. 1992) (inquiries about an applicant’s race may violate the Fair Housing Act because “[t]here is simply no legitimate reason for considering an applicant's race”). However, it may be permissible to ask applicants about their citizenship status, if such inquiries are performed uniformly on all applicants. Espinoza v. Hillwool Square Mutual Ass'n., 522 F. Supp. 559 (E.D. Va. 1981) (finding that the Fair Housing Act does not per se prohibit citizenship requirements but where a citizenship requirement is pretext for national origin discrimination, it is unlawful). For more see Immigration status and affordable housing at https://www.masslegalhelp.org/housing-apartments-shelter/public-subsidized-housing/immigration-status-and-affordable-housing.

39. G.L. c. 151B, §4(10).

40. See Diliddo v. Oxford Street Realty, 450 Mass. 66 (2007). In Diliddo, the Supreme Judicial Court held that a one-month termination provision in an alternative housing vouching program (AHVP) lease was a "requirement" of the AHVP program which the landlord's agent could not reject for financial reasons. In so holding, the Court refused to read into the statute an exception that would allow landlords to reject participants in housing subsidy programs whose requirements might cause the landlord economic harm. See also Clemons v. Niedzwiecki, Western Housing Court, 15-CV-0488 (Fein, J., July 25, 2016) (holding that Chapter 151B’s prohibition against denying housing because the tenant received a housing subsidy or because of the rules of a housing subsidy program includes a prohibition against refusing to rent to tenants because of the particular agency that administers their voucher).

41. See the regulation for the Section 8 Tenant Based Assistance: Housing Choice Voucher Program, 24 C.F.R. §982.304, Illegal Discrimination: PHA Assistance to Family. This section states: "A family may claim that illegal discrimination because of race, color, religion, sex, national origin, age, familial status or disability prevents the family from finding or leasing a suitable unit with assistance under the program. The PHA must give the family information on how to fill out and file a housing discrimination complaint." See also 24 C.F.R. §982.53, describing the equal opportunity requirements under the Section 8 program. Finally, note that the Equal Opportunity Housing Plan must, in accordance with the requirements of Executive Order 11063, 27 FR 11527, reprinted as amended in 42 U.S.C.S. §1982, "promote the abandonment of discriminatory practices" and "prevent discrimination."

42. Ch. 151B, §1(16), (17), and §4(3C), (4A), (6)-(7B). In federal law, the key provisions are in the Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, §13(a), 102 Stat. 1636 (1988), codified at 42 U.S.C. §§3601 et seq. Both the state and federal law add persons with disabilities to the list of those protected against discrimination. Both laws, with the state law being generally stronger, provide that landlords must make "reasonable accommodations" to persons with disabilities so that they can rent and enjoy housing on an equal basis with those who are not disabled.

Another federal law protecting disabled people from housing discrimination, but only in "federally assisted" housing, is Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. §794.

43. G.L. c. 151B, §4(7A)(1); 42 U.S.C. §3604(f)(3)(A).

44. “[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2); see also Adjartey v. Cent. Div. of Hous. Ct. Dep't, 481 Mass. 830, 847, 120 N.E.3d 297, 314 (2019) (citing McDonough, 457 Mass. at 514, 528, 930 N.E.2d 1279, quoting Tennessee v. Lane, 541 U.S. 509, 516, 524, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004))( noting that disability rights laws “exist to address the ‘pervasive unequal treatment’ of individuals with disabilities,” who “have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society.’”

45. See Kachadorian v. Larson, 87 Mass.App.Ct. 1111, *2 (Mar. 23, 2015) (Appeals Court Rule 1:28.).

46. Ch. 151B, §1(16), (17), and §4(3C), (4A), (6)-(7B). In federal law, the key provisions are in the Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, §13(a), 102 Stat. 1636 (1988), codified at 42 U.S.C. §§3601 et seq. Both the state and federal law add persons with disabilities to the list of those protected against discrimination. Both laws provide that landlords must make "reasonable accommodations" to persons with disabilities so that they can rent and enjoy housing on an equal basis with those who are not disabled.

Another federal law protecting disabled people from housing discrimination, and providing for affirmative rights to accommodations is Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. §794. Section 504 only applies in "federally assisted" housing.

47. G.L. c. 151B, §4(7A); 42 U.S.C. §3604(f).

48. State law, at G.L. c. 151B, §1(17), uses the same definition of "handicap" as the federal Fair Housing Act does. The federal Fair Housing Act and implementing regulations define "handicap" as (1) a "physical or mental impairment which substantially limits one or more of [a] person's major life activities," (2) a record of having such an impairment, or (3) being regarded as having such impairment. 42 U.S.C. §3602(h); 24 C.F.R §100.201. Section 504 has a similar definition. See 29 U.S.C. §§705(9)(B), 705(20).

Note that the federal law does not include as a "handicap" the current illegal use of or an addiction to a controlled substance. 42 U.S.C. §3602(h)(3), 24 C.F.R. §100.201. This should be differentiated from alcohol use disorder. To the extent someone is disabled due to alcohol use disorder, that disability remains covered by the fair housing laws. Moreover, individuals with substance use disorder would not be excluded if they do not currently use illegal drugs. See House Judiciary Comm., Fair Housing Amendments Act of 1988, H.R. Rep. No. 711, 100^th Cong., 2d Sess. 25, 28-29, reprinted at 1988 U.S. Code Cong. & Admin. News 2173, 2183-84.) The question of what constitutes “current” has not been squarely answered by legislation or the courts as of this edition. See United States v. Southern Management Corp., 955 F.2d 914, 919 (4th Cir. 1992) (discussing exclusion in 42 U.S.C. § 3602(h) for "current, illegal use of or addiction to a controlled substance"); see also Peabody Properties, Inc. v. Sherman, 418 Mass. 603, 638 N.E.2d 906, 6 A.D.D. 464 (1994) (finding exclusion applied where tenant had recent conviction for possession with intent to distribute, and citing congressional record stating “The current use provision was “not intended to be limited to persons who use drugs on the day of, or within a matter of days or weeks before, the action in question.”). Many of the cases evaluating what is “current illegal drug use” have been in the context of local efforts to exclude sober homes or recovery programs. See, e.g., Pacific Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1156, 28 A.D. Cas. (BNA) 1344 (9th Cir. 2013) (“It is well established that persons recovering from drug and/or alcohol addiction are disabled under the FHA and therefore protected from housing discrimination.”); Toucan Partners, LLC v. Hernando County, Fla., 571 Fed. Appx. 737, 742 n.4 (11th Cir. 2014) (noting that “those recovering from drug addiction are protected under the [Fair Housing Act]”); Lakeside Resort Enterprises, LP v. Board of Sup'rs of Palmyra Tp., 455 F.3d 154, 156 n.5 (3d Cir. 2006), as amended, (Aug. 31, 2006) (noting with approval Fair Housing Act cases holding that “recovering alcoholics and drug addicts are handicapped, so long as they are not currently using illegaldrugs”).

Also, the federal law is explicit that discrimination protections are not to extend to any individual 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." 42 U.S.C. §3604(f)(9); 24 C.F.R. §100.202(d). In contrast, the state law, G.L. c. 151B, includes no language exempting such persons from protection against discrimination. The Massachusetts Supreme Judicial Court has held that a public housing authority may evict a tenant who requests a reasonable accommodation but poses a threat to others, but before doing so it must show that an attempt to accommodate the tenant has failed or that there is no reasonable accommodation that will acceptably minimize the risk to other residents. Boston Housing Authority v. Bridgewaters, 452 Mass. 833, 841 (2009).

49. It is also illegal to refuse to rent to a person because they might need reasonable accommodations to the premises or to refuse to allow a tenant to make reasonable modifications to their apartment. Both the federal law (42 U.S.C. §3604(f)(3) and 24 C.F.R. §100.203) and state law (G.L. c. 151B, §4(7A) and 804 CMR §2.03(3)) require owners to allow disabled tenants to make reasonable modifications to their units at their own expense. This might include widening a doorway, installing a grab bar, putting in a louder doorbell, or lowering the light switches. However, the state law goes further for publicly assisted, multiple-dwelling or other larger housing developments. In those forms of housing, reasonable modifications must be paid for by the owner (in the case of public housing, this is subject to appropriation), but modifications are not considered reasonable if they would impose undue hardship on the owner. Also, reasonable modifications do not include ramping for more than five steps or installing a wheelchair lift. G.L. c. 151B, §4(7A)(1) and (7A)(3). Under §504, the only limit on provision of reasonable accommodations including structural modifications is undue financial and administrative burden. See 24 C.F.R. §20 et seq. Thus, §504, if available, may be the better route for structural modifications in certain situations.

State law says that a modification is not required "if it would impose an undue hardship upon the owner. … Factors to be considered shall include, but not be limited to, the nature and cost of the accommodation or modification needed, the extent to which the accommodation or modification would materially alter the marketability of the housing, the overall size of the housing business of the owner … and the ability of the owner … to recover the cost … through a federal tax deduction." G.L. c. 151B, §4(7A)(3).

50. HUD has also issued lengthy guidance on when a tenant may be entitled to an assistance animal (sometimes called an emotional support animal) or a service animal. See HUD, Office of Fair Hous. & Equal Opportunity, Notice FHEO-2020-01 (Jan. 28, 2020), available at https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020….

Service animals are defined by the Americans with Disabilities Act (ADA ) to be: “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability.” 28 C.F.R. §§ 35.104; 36.104.

Assistance animals, or emotional support animals, are animals that provide support to a disabled person – whether it be physical or emotional support – but do not need to specifically be dogs. HUD describes assistance animals as “other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities.” FHEO-2020-01, p. 1.

51. Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 841 (2009); Glendale Assocs. v. Harris, 97 Mass.App.Ct. 454 (2020); Moretalara v. Boston Hous. Auth., 99 Mass.App.Ct. 1 (2020); Peterborough Hous. Assocs., LP v. Garnier, 99 Mass.App.Ct. 1114 (2021) (M.A.C. Rule 23.0).

52. Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004).

53. Id.

54. See City Wide Assocs. v. Penfield, 409 Mass. 140, 143-44 (1991).

55. 42 U.S.C. §3604(f)(9); Andover Housing Authority v. Shkolnik, 443 Mass. 300, 312 (2005) (neighbors' rights need not be "sacrificed 'on the altar' of reasonable accommodation") (quoting Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1046 (6th Cir. 2001)). In Andover Housing Authority v. Shkolnik, 443 Mass. 300 (2005), the Supreme Judicial Court held that a public housing authority did not violate the Fair Housing Act and M.G.L. c. 151B when it evicted a tenant with an alleged mental disability for excessive noise, and that the tenant's requested withdrawal or delay of eviction proceedings was not reasonable. Relying on language appearing in §504 of the Rehabilitation Act (but not in the Fair Housing Act or M.G.L. c. 151B), the Court focused on whether the tenant was a "qualified" handicapped person and concluded he was not. According to the Court, "[i]n the public housing context, a 'qualified' handicapped individual is one who could meet the authority's eligibility requirements for occupancy and who could meet the conditions of a tenancy, with a reasonable accommodation or modification in the authority's rules, policies, practices, or services. Here, the tenants made no showing that, even if eviction proceedings were withdrawn or delayed, they could comply with the terms of their lease by not disturbing their neighbors." 443 Mass. at 310-311 (internal citations omitted).

But see Boston Housing Authority v. Bridgewaters, 452 Mass. 833, 850 (2009)) (“before a public housing authority may terminate the lease of a disabled tenant . . . because he poses ‘a significant risk to the health or safety of others’ that cannot be eliminated by a reasonable accommodation . . . the housing authority ‘must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk’”) (internal citations omitted).

56. See Rodriguez v. Montalvo, 337 F. Supp. 2d 212, 215-16 (D. Mass. 2004).

57. 42 U.S.C. §3604(f)(3); G.L. c. 151B, §4(7A)(1). Under Massachusetts law, an owner must pay for reasonable accommodations "in the case of publicly assisted housing, multiple dwelling housing consisting of ten or more units, or contiguously located housing consisting of ten or more units…." G.L. c. 151B, §4(7A)(1).

58. 29 U.S.C. §794.

59. See G.L. c. 151B, §4(7A).

60. United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994).

61. Boston Housing Authority v. Bridgewaters, 452 Mass. 833, 847-48 (2009)(“ To make a reasonable accommodation request, no “magic” words are required.”); Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004) (noting that a housing provider cannot require use of a specific form, that the requester need not “mention the [FHA] or use the words "reasonable accommodation’” so long as a reasonable person would understand that a reasonable accommodation is being requested).

62. Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (May 17, 2004)(“[H]ousing providers must give appropriate consideration to reasonable accommodation requests even if the requester makes the request orally or does not use the provider's preferred forms or procedures for making such requests.”).

63. Id.

64. Id. (“If a person's disability is obvious, or otherwise known to the provider, and if the need for the requested accommodation is also readily apparent or known, then the provider may not request any additional information about the requester's disability or the disability-related need for the accommodation.”).

65. Glendale Assocs. v. Harris, 97 Mass. App. Ct. 454, 463 (2020).

66. Boston Housing Authority v. Bridgewaters, 452 Mass. 833, 847-48 (2009).

67. See Bouley v. Young-Sabourin, 394 F. Supp. 2d 675 (D. Vt. 2005).

68. U.S. Dep’t of Hou. & Urb. Dev., Office of Fair Hous. & Equal Opportunity, Memorandum on Assessing Claims of Housing Discrimination against Victims of Domestic Violence under the Fair Housing Act (FHAct) and the Violence Against Women Act (VAWA)(Feb. 9, 2011), available at https://www.hud.gov/sites/documents/FHEODOMESTICVIOLGUIDENG.PDF.

69. Massachusetts law provides certain protections for victims of domestic violence allowing them to break a lease early and request that the locks be changed (for a reasonable fee). G.L. c. 186, §§24, 26. In both cases, the landlord may request proof that the individual is a victim of domestic violence, such as a copy of a court prevention of abuse order or a police report. The law also provides that if a victim of domestic violence exercises his right to terminate his lease early due to domestic violence, a future landlord cannot use that as a reason not to rent to him, nor can a housing subsidy provider use that as a basis to deny rental assistance. G.L. c. 186, §25.

70. 34 U.S.C. § 12491(b)(1); see also 24 C.F.R. §§ 5.2001-5.2011.

71. M.G.L. c. 151B, §§4(6), (7), (7B), (8).

72. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 207 L. Ed. 2d 218, 2020 Fair Empl. Prac. Cas. (BNA) 220638, 104 Empl. Prac. Dec. (CCH) P 46540 (2020).

73. U.S. Department of Housing and Urban Development, Memorandum of the Assistant Secretary for Fair Housing and Equal Opportunity, Implementation of Executive Order 13988 on the Enforcement of the Fair Housing Act (Feb. 11, 2021)(that “the Fair Housing Act's sex discrimination provisions are comparable to those of Title VII and that they likewise prohibit discrimination because of sexual orientation and gender identity”), at https://www.hud.gov/sites/dfiles/PA/documents/HUD_Memo_EO13988.pdf. This memo was likely rescinded pursuant to Executive Order titled “Initial Rescissions of Harmful Executive Orders and Actions” which rescinded Executive Order 13988. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 207 L. Ed. 2d 218, 2020 Fair Empl. Prac. Cas. (BNA) 220638, 104 Empl. Prac. Dec. (CCH) P 46540 (2020).

74. Langowski, Berman, Holloway & McGinn, Transcending Prejudice: Gender Identity and Expression-Based Discrimination in the Metro Boston Rental Market, 29 Yale J.L. & Feminism 321 (2018); see also Urban Institute, A Paired-Testing Pilot Study of Housing Discrimination against Same-Sex Couples and Transgender Individuals (2017).

75. A housing provider violates the federal Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate. Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S.Ct. 2507, 2522-23 (June 25, 2015) (holding that a policy may be considered discriminatory if it “function[s] unfairly to exclude minorities from certain neighborhoods without any sufficient justification”); see also Burbank Apts. Tenant Ass’n v. Kargman, 474 Mass. 107 (2015). Where a policy or practice that restricts access to housing on the basis of criminal record has a disparate impact on individuals of a particular race, national origin, or other protected status, such policy or practice is unlawful under the Fair Housing Act. See U.S. Department of Housing and Urban Development Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (April 4, 2016).See also U.S. Department of Housing and Urban Development, Notice PIH 2015-19, Guidance for Public Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in Housing Decisions (Nov. 2, 2015) (prohibiting landlords who receive federal funding from relying on arrest records only to deny admission to or evict tenants).

76. See Louis v. SafeRent Solutions, LLC, 985 F.Supp.3d 19, 39 (D. Mass. July 26, 2023) (plaintiffs sufficiently pled disparate impact claim that a scoring system relying heavily on credit history disproportionately impacted voucher holders and other protected classes).

77. See City Life Vida Urbana, Evictions in Boston: The Disproportionate Effects of Forced Moves on Communities of Color (2020); see also Peter Hepburn et al., Racial and Gender Disparities among Evicted Americans, Sociologic Science, Dec. 16, 2020, at 649-53 (“Black individuals were overrepresented in the evicted defendant population. They made up 19.9 percent of all adult renters but 32.7 percent of all eviction filing defendants. Four out of every five black renters in our sample (81.0 percent) lived in a county in which the share of eviction filings against black renters was higher than the share of the renting population that was black. All other racial/ethnic groups were underrepresented, with the largest absolute difference among white renters. White renters made up 51.5 percent of all adult renters but only 42.7 percent of all eviction filing defendants.”); Sandra Park, Unfair Eviction Screening Policies Are Disproportionately Blacklisting Black Women, ACLU (Mar. 30, 2017), https://www.aclu.org/news/womens-rights/unfair-eviction-screening-policies-are-disproportionately (“[S]tudies demonstrated that people of color made up about 80 percent of those facing eviction in several cities, and women were 62 percent of the tenants facing eviction in Chicago and 70 percent of the tenants in Philadelphia.”).

78. This section addresses only the disability laws regarding private housing. The laws regarding public and subsidized housing are different and can be more complicated.

In addition, sometimes a person will have a CORI (or a poor credit report) because they are survivor of domestic violence. If this is the case, you should explain the circumstances to the landlord. It may be sex discrimination to deny someone housing based on a CORI or poor credit report that is the result of someone’s being a victim of domestic violence. U.S. Dep’t of Hous. & Urb. Dev., Assessing Claims of Housing Discrimination against Victims of Domestic Violence under the Fair Housing Act (FHAct) and the Violence Against Women Act (VAWA) (Feb. 9, 2011).

79. See endnote 20 above.

80. Id.

81. Much work has been done on the ways in which the lack of appropriate, affordable, available medical care and supportive services for people with serious mental illness results in unconscionably high levels of incarceration for this population. See, e.g., Peter Insel, Healing: Our Path from Mental Illness to Mental Health (2022).

82. 42 U.S.C. §3602(h); Peabody Properties, Inc. v. Sherman, 418 Mass. 603 (1994).

83. The fair housing laws do not give a definition of current use of illegal drugs. What constitutes current versus former use — and thus entitled to coverage as a disability under the fair housing laws — is a fact-specific question. See, e.g., Peabody Properties, Inc. v. Sherman, 418 Mass. 603 (1994) (citing United States v. Southern Management Corp., 955 F.2d 914, 919 (4th Cir.1992) (holding that the applicable fact in the case was that the tenant was alleged to have possessed a controlled substance with intent to distribute, and thus the question of whether the tenant was or was not “currently” using was not at issue). But see Fowler v. Borough of Westville, 97 F. Supp. 2d 602, 608–09 (D.N.J. 2000) (finding that use four months’ previous was removed enough to not constitute “current” use). The Americans with Disabilities Act may provide some guidance on how courts may analyze the question. It defines current use of drugs as "illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem." 28 C.F.R. §35.104. In addition, state regulations regarding state-aided public and subsidized housing states that "[a] person's illegal use of a controlled substance within the preceding 12 months shall create a presumption that such person is a current illegal user of a controlled substance, but the presumption may be overcome by a convincing showing that the person has permanently ceased all illegal use of controlled substances. This disqualification of current illegal users of controlled substances shall not apply to applicants for housing provided through a treatment program for illegal users of controlled substances." 760 CMR §5.08(1)(k).

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