What Is Illegal Discrimination?

Endnotes

¹ . Federal Laws

Title VIII of the Civil Rights Act of 1968 (the federal Fair Housing Act), 42 U.S.C. §3601 et seq. The Fair Housing Act was amended by the Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, § 13(a), 102 Stat. 1636 (1988), which became effective March 12, 1989. These amendments added "familial status" and disability to the nondiscrimination provisions of the Fair Housing Act and greatly expanded the enforcement sections. See H. Comm. on the Judiciary, Fair Housing Amendments Act of 1988, H. Rep. No. 100-711 (1988), reprinted in 1988 U.S.C.C.A.N. 2173; 134 Cong. Rec. H6491-6501 (daily ed. Aug. 8, 1988); 134 Cong. Rec. S10532-10569 (daily ed. Aug. 2, 1988); 134 Cong. Rec. H4898-4932 (daily ed. June 29, 1988) for a full presentation of the Congressional intent behind the amendments. The Fair Housing Act was most recently amended in 1995. Specifically, §3607 was amended by the Housing for Older Persons Act of 1995, Pub. L. No. 104-76, § 1, 109 Stat. 787 (1995). Current provisions of the Act prohibit the following discriminatory practices against the groups protected by the Fair Housing Act: refusing to sell, rent, negotiate for, "or otherwise make unavailable or deny" a dwelling; discriminating in the "terms, conditions, or privileges of a sale or rental of a dwelling or in the provision of services or facilities in connection therewith"; making or publishing any discriminatory statement in regard to a sale or rental; misrepresenting the availability of a dwelling; inducing a person to sell or rent any dwelling by representations about the presence of members of a protected class in the neighborhood; and discriminating in access to real estate services. 42 U.S.C. §§3604,3606.

The HUD regulations implementing the federal Fair Housing Act are at 24 C.F.R. §§100 et seq. Title VIII permits a complaint to be filed within two years in a U.S. district court or in state court or within one year at HUD. 42 U.S.C. §3610(a)(1)(A)(i); 42 U.S.C. §3613(a)(1)(A). If a timely complaint is filed with HUD, then the two-year court limitations period is tolled during the time that the HUD complaint is pending. 42 U.S.C. §3613(a)(1)(B). Certain single-family homes and all owner-occupied two-, three-, and four-family dwellings are exempted under 42 U.S.C. §3603(b), 24 C.F.R. §100.10(c). This exemption will not apply if any "statement or advertisement" is made, printed, or published or caused to be made printed, or published, with respect to the rental of a dwelling that indicates any preference, limitation, or discrimination on the grounds prohibited by Title VIII, 42 U.S.C. §§3603(b), 3604(c). Note that oral statements as well as written statements and advertisements are covered by this provision limiting the exemption for single-family homes and two-, three-, and four-family dwellings under Title VIII. See Mayers v. Ridley, 465 F.2d 630, 649 (D.C. Cir. 1972) (en banc) (Wilkey, J., concurring); see also id. at 633 (Skelly Wright, J., concurring) and 24 C.F.R. §§100.75(b), 100.75(c)(2). Note also that there is no exemption from Title VIII for discrimination by those engaged in the business of selling, brokering, or appraising residential real property, 42 U.S.C. §§3605(a), 3605(b)(2) and 3606. Thus, although on occasions a landlord may be exempt from the provisions of Title VIII, her broker will never be.

Civil Rights Act of 1866, 42 U.S.C. §1982. Section 1982 protects American citizens against discrimination on the basis of race or color only. However, the U.S. Supreme Court has defined racial discrimination under §1982 broadly so that it will encompass many national origin claims and some religion claims. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). Section 1982 covers all housing—unlike state and federal fair housing laws, which exempt some units in small buildings. This law is not directly enforced by federal agencies, so victims of discrimination must sue in court, which may award compensatory and punitive damages as well as equitable relief and attorney's fees. This remedy is useful because the applicable statute of limitations for filing a §1982 action in federal or state court in Massachusetts is most likely three years, longer than that allowed for initial filings under the federal Fair Housing Act or G.L. c. 151B. Cf. Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991), reh'g and reh'g en banc denied (1st Cir. Oct. 9, 1991), cert. denied, 502 U.S. 1063 (1992) (relying on Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) to hold that Massachusetts' three-year personal injury statute of limitations applies to §1981 claims). But see Sims v. Order of United Commercial Travelers of America, 343 F. Supp. 112, 115 (D. Mass. 1972) (applying Massachusetts' six-year contract statute of limitations to §1982 claims, but prior to Supreme Court's decision in Goodman).

Civil Rights Act of 1866, 42 U.S.C. §1981. Section 1981 protects the rights of racial and ethnic minorities to make and enforce contracts, including leases. In contrast to §1982, the victim need not be an American citizen. The statute of limitations is three years. Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991), reh'g and reh'g en banc denied (1st Cir. Oct. 9, 1991), cert. denied, 502 U.S. 1063 (1992).

Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq. (2000). "No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The HUD implementing regulations are at 24 C.F.R. §1.1 et seq. Title VI itself requires intentional discrimination, but the HUD regulations may be satisfied by a showing of "disparate impact." Alexander v. Choate, 469 U.S. 287, 293 (1985), construing Guardians Ass'n v. Civil Serv. Comm'n of New York City., 463 U.S. 582, 584 (1983).

This law is often more difficult to use than Title VIII (which also covers federally financed as well as private housing). It applies only to housing that has some federal financial assistance (such as federally financed public housing, Section 8 project-based or HUD-subsidized housing). While there is a private right of action under Title VI against state or local agencies that receive federal funds, see Guardians Association v. Civil Service Commission of New York City, 463 U.S. 582, 593-97, 624-28, 635-36 (1983), courts are not in agreement as to whether a private right of action is available against HUD or other federal agencies. See generally Clients' Council v. Pierce, 711 F.2d 1406, 1424 (8th Cir. 1983), reh'g and reh'g en banc denied (8th Cir. Sept. 15, 1983). Also, a private right of action is not available to enforce the federal regulations promulgated pursuant to Title VI. See Alexander v. Sandoval, 532 U.S. 275 (2001).

State Laws

G.L. c. 151B prohibits discrimination primarily in employment, housing, and some consumer and credit transactions. Ch. 151B, §§4(3B), (3C), (6)-(8), (10)-(11), (13), and (18) concern discrimination in housing against various protected groups.

Massachusetts Equal Rights Act, G.L. c. 93, §102(a), was enacted in 1989 and prohibits discrimination on the basis of race, color, creed, national origin, or sex in the making and enforcing of contracts and the purchase and renting of property. G.L. c. 93, §103 prohibits age and handicap discrimination and was added in 1990. For a general discussion of the Massachusetts Equal Rights Act, see 45 Mass. Prac. §§10.1-10.8 (Scott C. Moriearty, et al. 2008).

Massachusetts Civil Rights Act, G.L. c. 12, §11H, protects all persons from threats, intimidation, or coercion which interfere with rights secured by state or federal laws. For a general discussion of the Massachusetts Civil Rights Act, see 45 Mass. Prac. §§9.1-9.22 (Scott C. Moriearty, et al. 2008).

Massachusetts Consumer Protection Act, G.L. c. 93A, §§1-11, protects consumers from unfair or deceptive acts in the conduct of any "trade or commerce." Due to this qualification, small landlords may be exempt. See Billings v. Wilson, 397 Mass. 614 (1986); Sayah v. Hatzipetro, 397 Mass. 1004 (1986) (rescript); Young v. Patukonis, 24 Mass. App. Ct. 907 (1987) (rescript). A complaint must be filed within four years after the cause of action accrues.

² . In this chapter, we focus on owners (and their employees and agents) and brokers or real estate agents who illegally discriminate in renting housing. The federal and state fair housing laws and court decisions prohibit discrimination by several other entities involved in housing, such as federal, state, and local governments, newspaper advertisers, banks and mortgage companies, insurance companies, appraisers, local governments that enact discriminatory zoning laws, and public housing authorities that refuse to administer certain housing subsidies. Discrimination in housing sales, financing, advertising, insuring, and appraising is also illegal. However, space constraints compel us to concentrate on owners and agents as these are the people tenants are most likely to deal with.

³ .

Federal Laws

Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. §794 (Supp. IV 2004), prohibits discrimination on the basis of disability in programs and activities conducted by HUD or that receive financial assistance from HUD. 29 U.S.C. §794(a) provides that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." This law applies only to housing that receives federal financial assistance such as federally aided public housing or HUD- subsidized housing. The law also applies to state-aided or subsidized housing if the public housing agency receives any federal money for housing (which almost all do). See also HUD §504 regulations (at 24 C.F.R. §§8.1 et seq.).

Title II of the Americans with Disabilities Act of 1990, codified at 42 U.S.C. §12132, bans disability discrimination in services of state and local governments, whether or not they receive federal financial assistance.

State Laws

Chapter 722 of the Acts of 1989 modifies several provisions of Massachusetts law, most importantly, G.L. c. 151B, by extending to disabled persons the right to be free from housing discrimination, enhancing enforcement proceedings for all protected groups, and conforming state law to the federal Fair Housing Act.

Amendment Article 114 to the Massachusetts Constitution provides that "[n]o otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the Commonwealth." Amendment Article 114 was approved and ratified on November 4, 1980. The language of the amendment applies to public and private conduct, thereby providing protection with respect to all types of housing regardless of any federal or state involvement and regardless of the size or type of housing.

⁴ . M.G.L. c. 151B, §§4(6), (7), prohibits discrimination in housing based on a tenant's "age," but the statute's protections do not apply to "minors nor to residency in state-aided or federally-aided housing developments for the elderly nor to residency in housing developments assisted under the federal low income housing tax credit and intended for use as housing for persons 55 years of age or over or 62 years of age or over, nor to residency in communities consisting of either a structure or structures constructed expressly for use as housing for persons 55 years of age or over or 62 years of age or over if the housing owner or manager register biennially with the Executive Office of Housing and Livable Communities." The federal Fair Housing Act does not include "age" as a protected category.

⁵ . The federal Fair Housing Act applies to "dwellings," which include any building "occupied as, or designed or intended for occupancy as, a residence by one or more families . . . ." 42 U.S.C. §3602(b). The state anti-discrimination law applies to "housing accommodations," which include any building "which is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings." G.L. c. 151B, §1(9).

⁶ . The federal Fair Housing Act has been interpreted to apply to various residences that were temporary in nature. See, e.g. United States v. Hughes Memorial Home, 396 F. Supp. 544 (W.D.Va. 1975) (children's home); United States v. Columbus Country Club, 915 f 2nd 877 (3d Cir 1990), reh'g and reh'g en banc denied (3d Cir. 1990), cert. denied, 501 U.S. 1205 (1991) (summer homes); Woods v. Foster, 884 F. Supp. 1169 (N.D. Ill. 1995) and Defiore v. City Rescue Mission of New Castle, 995 F. Supp. 2d 413 (W.D. Pa. 2013) (homeless shelter); Lauer Farms v. Waushara County Bd. of Adjustmen, 986 F. Supp. 544 (E.D. Wis. 1997) (temporary structures for housing migrant farm workers); Wilson v. Phoenix House, 978 N.Y.S.2d 748 (N.Y. Sup. 2013) (residential drug treatment facility).

⁷ . There are many examples. See, e.g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979); Crowell v. Lantzakis, 80-BPR-0009 (MCAD 1983); Gardner v. Pianka, 2006 WL 2918563 (MCAD 2006), 28 MDLR 189 (2006).

⁸ . Demanding higher rents or more stringent terms or prices from minority applicants is prohibited by 42 U.S.C. §3604(b). See United States v. Long, remanded on other grounds, 537 F.2d 1151 (4th Cir. 1975), cert. denied, 429 U.S. 871 (1976). Delaying minority applications also constitutes the imposition of more stringent terms. See Williamsburg Fair Housing v. N.Y.C. Housing Auth., 493 F. Supp. 1225 (S.D.N.Y. 1980), aff'd without opinion, 647 F.2d 163 (2d Cir. 1981); Luna v. Lynch, 82-BPR-0083 (MCAD 1985). HUD has rejected the argument that different security deposits should be permitted for tenants with children or a physical disability (Preamble II, 24 C.F.R. ch. 1, subch. A, app. 1 at 54 Fed. Reg. 3239 [Jan. 23, 1989]). See also 42 U.S.C. §3604(f)(2); 24 C.F.R. §§100.60(b)(3), (b)(4), 100.65 (b)(1); and U.S. Dep’t of Justice & U.S. Dep’t of Hous. & Urb. Devel., Joint Statement on Reasonable Accommodations Under the Fair Housing Act (May 17, 2004) at 9.

⁹ . False representation of non-availability is also prohibited. See 42 U.S.C. §3604(d); Havens Realty Corp. v. Coleman, 455 U.S. 363, 374-75 (1982); Seaton v. Sky Realty Co., 491 F.2d 634, 635-36 (7th Cir. 1974); Davis v. Mansards, 597 F. Supp. 334, 343 (N.D. Ind. 1984).

¹⁰ . A management firm that published a brochure that contained virtually no blacks as photo models showed a racial preference in violation of 42 U.S.C. §3604. See Saunders v. General Servs. Corp., 659 F. Supp. 1042 (E.D. Va. 1987). The provision is not limited to advertising. HUD regulations specifically include oral and written statements made by a person engaged in the rental of a dwelling. See 24 C.F.R. §100.75(b). See also Mayers v. Ridley, 465 F.2d 630, 649 (D.C. Cir. 1972) (en banc). Also, G.L. c. 151B, §4(7B) mirrors the language of Title VIII and thus oral or written notices or statements would also be violations under state law.

¹¹ . Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-75 (1982); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 111-15 (1979); Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1529 (7th Cir. 1990).

¹² . A landlord's policy of evicting families with children from one of her buildings had a "substantially greater adverse impact on minority tenants." See Betsey v. Turtle Creek Assocs., 736 F.2d 983, 988 (4th Cir. 1984).

¹³ . 42 U.S.C. §3604(a), (f)(1). Refusal to negotiate may also involve the pretense that no units are available. The courts have made clear that these avoidance techniques are condemned. See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 207-08 (1972) (declined to follow for different reason); United States v. Youritan Construction Co., 370 F. Supp. 643, 648 (N.D. Cal. 1973) ("laws prohibiting discrimination in housing because of race prohibit not only, for example, overt racial rejection of applicants, but subtle behavior as well."), aff'd as modified, 509 F.2d 623 (9th Cir. 1975). State law explicitly prohibits a refusal to negotiate. See G.L. c. 151B, §4(6), (7).

¹⁴ . Discrimination in the provision of access to any service relating to the renting or selling of homes is prohibited. See 42 U.S.C. §3606, 24 C.F.R. §100.90, 24 C.F.R. ch.1, subch. A, app. I at 522 (1989). Discrimination in the provision of brokerage services is also prohibited by state law. See G.L. c. 151B, §4(6), (7), (11).

¹⁵ . 42 U.S.C. §3617; G.L. c. 12, §§11H and 11I. Section 3617's protection extends to persons who have "aided or encouraged" others in the exercise of their Title VIII rights. See Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir. 1975). See, by way of analogy, Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 99-100 (1987) (acquiescence in a third party's desire to repress speech did amount to threats, intimidation, or coercion under G.L. c. 12, §§11H and 11I).

¹⁶ . See HUD regulations implementing the disability provisions of Title VIII at 24 C.F.R. §100.204; G.L. c. 151B, §4(7A); Whittier Terrace Assocs. v. Hampshire, 26 Mass. App. Ct. 1020 (1989) (rescript); City Wide Assocs. v. Penfield, 409 Mass. 140 (1991); Peabody Properties Inc. v. Jeffries, Hampden Housing Court, 88-SP-7613-S (Abrashkin, J., Jan. 6, 1989); Lawrence Housing Authority v. Baez, Northeast Housing Court, 92-SP-00025 (Kerman, J., Oct. 28, 1992).

¹⁷ . The theory of this type of fair housing violation is a “disparate impact” theory and is where a policy or practice which may appear to be neutral, adversely or disparately affects one group of people of a protected class more than another. In 2015, the Supreme Court held that a policy or practice that was neutral on its face, but disproportionately harmed protected groups in practice could be discriminatory under the federal Fair Housing Act. Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S.Ct. 2507 (June 25, 2015).

¹⁸ . April 4, 2016 HUD Guidance on Use of Criminal Records by Housing Providers https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf

¹⁹ . See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 207-08 (1972).