Over several years of helping landlords fight and win cases, we’ve noticed that the term “protected classes” leads to a lot of confusion. In this educational guide, we’ll discuss what all landlords need to know about the Fair Housing Act’s protected classes. We’ll clarify what each protected class means and examples of potential discriminatory actions against each class. In addition, we’ll discuss what is NOT a protected class under the Fair Housing Act. Before we get into those details, let’s first review the history of protected classes under the Fair Housing Act.
Protected classes are those groups of citizens who are protected against discrimination due to their membership in one of the following classes:
Before these protected classes were established, the general concern over housing discrimination came to light around 1966. At this time, war veterans noticed that those of color were being discriminated against when seeking housing in certain neighborhoods. This led to public marches for housing rights. These marches revealed that the Civil Rights Act of 1968 wasn’t extending to housing rights. In 1959, the California Fair Employment and Housing Act set precedent for the protected classes later found in the Fair Housing Act. The Fair Housing Amendments Act was signed on September 13, 1988. It added the last two protected classes, familial status and disability to the Fair Housing Act.
Landlords may agree that discrimination towards these protected classes may not be as blatant as they were prior to or in the earlier days of the Fair Housing Act’s enactment. However, they do still exist in subtle forms. Landlord should know the difference between these protected classes and ensure that their tenant selection process and overall housing policies don’t discriminate based on membership in any of these three classes. Race refers to being White, Black, Asian, Pacific Islander, etc. It’s important to note that racial discrimination includes discrimination for perceived race or being biracial. The question “what are you?” can be a sign of racial discrimination. Also, racial discrimination can occur because of association with particular races.
For instance, a landlord who is hostile to a tenant’s black in-laws and prohibits them from visiting the property due to their appearance, can be accused of discrimination. Meanwhile, color discrimination is discrimination based on the lightness or darkness of an individual’s skin. For instance, renting out apartments to lighter skinned African Americans but not darker skinned African Americans is a specific form of color discrimination. Lastly, discrimination based on nation of origin means discrimination based on not only where you are from, but where your family is from and your language or customs. For instance, creating more favorable rental terms for native English speakers is an obvious case of discrimination. Refusing to rent out property to those who cook a specific customary cuisine can also lead to complaints, even if the reasoning is rooted in practical concerns over food odors.
These two protected classes are more commonly discriminated against today. In fact, a 2015 study by the National Fair Housing Alliance found that discrimination due to disability made up more than half of all housing discrimination complaints filed with the Housing and Urban Development Department. Discrimination based on familial status made up around 10 percent of annual complaints. A common example of discrimination based on disability is when a landlord refuses to allow a tenant to modify their bathroom to include railings.
This example is more obvert, but also note that discrimination based on mental disability can be grounds for a complaint. Meanwhile, the familial status protected class was included in the Fair Housing Act as a means of protecting families with children under 18. Like in the case of other protected classes, landlords should be aware of both obvious and more subtle forms of discrimination based on familial status. For instance, denying a rental property to a tenant who otherwise qualifies for a unit because he/she has a toddler child is an obvious discrimination. However, cases have existed where landlords group families with small children into less desirable back of the lot properties. While this may be a defensive move to counter noise complaints, it unfairly restricts access to units that are otherwise available to other families.
In order to avoid unnecessarily accommodating some groups of people, landlords should also be aware of what is not considered a protected class. This can help prevent accommodating groups that may end up hurting your rental business. One group that is not protected under the Fair Housing Act is renters who participate in illegal drug activity. Current illegal drug use is not protected, although recovering addicts are considered a protected class since the addiction can be considered a disability. As you can imagine, this can be a complex exemption to interpret from case to case. If you’re a landlord dealing with a drug use case, don’t let your biases drive your decisions.
Our legal experts can provide sound advice based on current federal and state housing laws. In addition, the Fair Housing Act doesn’t consider source of income to be a protected class. Thus, in some cases a landlord can reject a potential tenant who wants to use housing choice vouchers. Although source of income isn’t a protected class in the Fair Housing Act, some states and counties do consider it a protected class. Landlords should be aware of not only the Fair Housing Act’s protected classes, but also any additional anti-discrimination policies enacted by their state and county.
As you can see, knowing what is and what is not protected under the Fair Housing Act is critical in both protecting against housing discrimination complaints and protecting your business interest as a landlord. Understanding the more common complaints based on disability and familial status is especially important. However, as we’ve mentioned before even the most careful, well-meaning landlords can face lawsuits. This is why having a good asset protection lawyer is critical. Contact our experienced legal professionals today.
Scott Royal Smith is an asset protection attorney and long-time real estate investor. He's on a mission to help fellow investors free their time, protect their assets, and create lasting wealth.
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