What Is the Fair Housing Act?

The Fair Housing Act is a federal law enacted in 1968 that prohibits discrimination in the purchase, sale, rental, or financing of housing—private or public—based on race, skin color, sex, nationality, or religion. The statute has been amended several times, including in 1988 to add disability and family status. State and local laws may expand on these protections in some jurisdictions, but may not detract from or reduce them.

The Fair Housing Act is also known as Title VIII of the Civil Rights Act of 1968.

Key Takeaways

  • The Fair Housing Act outlaws discrimination against home renters and buyers by landlords, sellers, and lenders on account of their race, color, religion, sexual orientation, nationality, disability, or family status.
  • The Act is enforced at the federal level by the Dept. of Housing and Urban Development (HUD).
  • State laws can enhance the protections under the Fair Housing Act, but cannot reduce them.
  • Housing discrimination persists nonetheless and can be difficult to prove. Winning a legal case requires proper documentation and patience.
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Understanding the Fair Housing Act

The U.S. Department of Housing and Urban Development (HUD) is the primary enforcer of the Fair Housing Act. The HUD's website provides additional information about what constitutes discrimination under the law, and how to proceed if a person feels that their inclusion in a protected class somehow negatively influenced a decision.

The Civil Rights Act of 1964 paved the way for this legislation. The Civil Rights Act was passed by Congress in direct response to the movement to end racial segregation and injustice in the 1950s and '60s. The Fair Housing Act was passed by Congress less than a week after the assassination of the Rev. Dr. Martin Luther King, Jr. and was the last of three great pieces of legislation enacted during the Civil Rights Movement. 

In 1974, the federal government expanded the Fair Housing Act to include protections for gender, and in 1988, to protect families with children and people with disabilities. Various state and local jurisdictions have added specific protections for sexual orientation and other categories.

In New York, for instance, a bank or landlord can’t inquire about a person’s criminal record, says Damon P. Howard, a real-estate attorney in New York City who handles residential and commercial litigation. New York City also prohibits discrimination on the basis of immigration status or lawful occupation, Howard notes. Prohibitions on racial discrimination have been extended to include wearing of ethnic hairstyles, such as dreadlocks, as well as other attributes.

What Makes for Housing Discrimination?

Here are some examples of what may be considered illegal discrimination under the law:

  • A landlord says that an apartment is available when a prospective tenant calls to inquire over the phone, but upon seeing that the person who inquired is African American, says that the apartment has just been rented. Upon hearing an inquiry from a member of another race, the landlord says it is available again.
  • A real estate agent refuses to show a house for sale in a specific neighborhood because of the race, religion, or ethnicity of the buyer—or conversely, steers a buyer to a different neighborhood when they asked to see a property elsewhere in the same price range.
  • A mortgage lender charges an applicant a higher interest rate for a loan to buy a home in a predominately Latinx neighborhood than in a predominately white neighborhood, or steers a borrower to a loan with less favorable terms because of their sex, race, or nationality.
  • A modern multifamily condominium fails to comply with accessibility requirements for buildings erected after 1991, such that a prospective wheelchair-bound buyer can't access a unit or parking there.
  • A rental agent refuses to rent an apartment to any single woman with children.

Fair Housing Act Enforcement

Under the Fair Housing Act, the U.S. Department of Justice (DOJ) may file a lawsuit against a defendant who is alleged to have engaged in a "pattern or practice" of discrimination, or discriminated against a group of people such that an issue of "general public importance" is raised. Courts have held that it is at the U.S. attorney general's discretion to decide what is a matter of "general public importance."

In cases that involve discrimination in mortgage loans or home improvement loans, the Justice Department can file suit under the Fair Housing Act if there is a pattern or practice of discrimination or where a denial of rights to a group raises an issue of general public importance. The DOJ also can institute criminal charges if force or threat of force is used to discriminate.

Individuals also can file discrimination complaints with HUD, or file a lawsuit in federal or state court. The DOJ files lawsuits on behalf of individuals based on referrals from HUD.

If an individual files a complaint with HUD, the agency is supposed to investigate in a timely fashion. If the complaint can't be resolved through conciliation, HUD then decides whether there's reasonable cause to believe federal laws were violated. If HUD finds reasonable cause, it prepares a Charge of Discrimination. Within 30 days, either the person alleging the discrimination or the respondent can choose to have the charge tried in federal court or in a HUD administrative law court.

Housing discrimination is illegal. If you think you've been discriminated against based on race, religion, sex, marital status, use of public assistance, national origin, disability, or age, there are steps you can take. One such step is to file a report to the Consumer Financial Protection Bureau (CFPB) or with HUD.

Federal Court Trial vs. Administrative Hearing

If the person filing the discrimination complaint chooses a federal court trial, they would be represented by DOJ attorneys and the case would be heard by a judge or a jury. Should the complainant win, they could receive both compensatory and punitive damages. Moreover, if the individual's complaint was part of a larger "pattern and practice" of discrimination, the DOJ could file broader charges seeking relief for other individuals who also were affected and go after civil penalties—a fine paid to the government.

Alternatively, should the individual complainant seek an administrative hearing, HUD attorneys will represent them, and an administrative law judge will hear the matter. This usually takes less time than a federal court trial, but the complainant can only get compensatory damages and civil penalties if successful. No punitive damages can be awarded.

Individuals can also hire their own private attorneys to represent them.

Both types of courts can order injunctive relief and issue written opinions, and appeals of the decision can be made to the U.S. Court of Appeals, according to the DOJ.

Special Considerations

Housing and civil rights attorneys say that proving housing discrimination, unless it is overt and obvious, can be difficult and that collecting good evidence in the form of written records and documents is helpful. They suggest that individuals who believe they have been a victim of discrimination contact their local fair housing center or an attorney for guidance.

Separate State Protections

Some states and local jurisdictions provide additional fair housing protections that go beyond federal laws. For instance, New York State Human Rights Law provides all the protections of the federal Fair Housing Act, but also affords protections against discrimination on the basis of "creed...national origin, sexual orientation, gender identity or expression, military status, age ...lawful source of income."

Some other states and localities across the United States have similar laws.