HISTORY OF FAIR HOUSING IN AMERICA
Not surprisingly, the beginning of housing discrimination in America can be traced to the
first colonial settlements. Even in the early 1600's, in the Jamestown Colony, there were
differences in the treatment of black and white indentured servants. As the colonies grew,
slavery of people of African descent became increasingly common. For the most part, slavery
was not considered immoral by society.
Neither the Declaration of Independence nor the American Revolution produced any
rights or freedom for the black man. Even Article I of the U.S. Constitution treated slaves as
three fifths of a person for purposes of determining a state's population for representation in
Congress.
Prior to the Civil War, the courts refused to recognize any rights for persons of African
descent, whether they were slaves or free. The federal government did nothing to prohibit
discrimination, and even those states that had abolished slavery treated blacks as inferior. The
ideology of the time is well illustrated in the 1857 U.S. Supreme Court case entitled Dred Scott
v. Sanford, in which the Court held that persons of African descent were not citizens of the
United States entitled to any rights. According to the Court, the black man had no rights the
white man was bound to respect. The Court stated that this principle applied to all black persons,
slave or free:
In the opinion of the court, the legislation and histories of the times, and
the language used in the Declaration of Independence, show that neither the class
of persons who had been imported as slaves, nor their descendants, whether they
had become free or not, were then acknowledged as a part of the people, nor
intended to be included in the general words used in that memorable instrument.
Shortly before the Civil War, the abolitionist movement gained strength. Abraham
Lincoln's emancipation proclamation at least on paper marked the end of slavery, although it did
little to advance modern day civil rights. At the end of the Civil War, the Thirteenth Amendment
was enacted to abolish slavery and to give Congress authority to enact appropriate legislation to
enforce the abolishment of slavery. In 1866, the Reconstruction Congress passed the Civil
Rights Act of 1866, which guaranteed property rights to all citizens regardless of race. The act
specifically provides that all citizens shall have the same rights as white citizens to inherit,
purchase, and sell real and personal property. Governmental discrimination was also prohibited
by the Fourteenth Amendment (enacted in 1868) and the Fifth Amendment's due process clause
that applies to the federal government.
But soon thereafter, the nation's commitment to civil rights deteriorated. In retrospect, the
1866 Civil Rights Act guarantee of equal rights to all races was, unfortunately, an empty
promise. For over a century, the courts prohibited racial discrimination only with regard to state
(governmental) discrimination, such as racial zoning or the court enforcement of racially
restrictive covenants governing real property. Therefore, the 1866 Act was essentially
ineffective in combating private discrimination.
The first major setback to the legal rights of African Americans came in the
U.S. Supreme Court's decision in the Civil Rights Case (1883). In that case, the Court held that
the equal protection clause of the U.S. Constitution (i.e., the 14th Amendment) did not prohibit
private acts of discrimination, rather it merely prohibited discrimination that was the product of
1
government action. A few years later, the U.S. Supreme Court made its infamous ruling in
Plessy v. Ferguson (1896), which held that the enforcement of racial segregation of private or
public facilities did not violate the U.S. Constitution as long as the separate facilities were equal.
This ruling permitted institutionalized segregation in the United States. The Plessy case was not
overruled until 1954, almost six decades later.
On the other hand, some of the more blatant forms of racial discrimination by the
government were outlawed by the Court. In 1917, in Buchanan v. Warley, the U.S. Supreme
Court struck down a local zoning law that limited African Americans and other minorities to
specific areas of town. The Court held that governmental zoning laws that discriminate, based
upon race, violate the equal protection clause of the Fourteenth Amendment. This court case did
not, however, ban any form of private discrimination. Again, private persons were free to
discriminate based upon race.
In 1948, in Shelley v. Kraemer, the U.S. Supreme Court held that state court
enforcement of a private racially restrictive covenant constituted a sufficient government
involvement so as to violate the equal protection clause of the Fourteenth Amendment.
Therefore, persons could not use the court system to enforce racial deed restrictions.
Although some states and municipalities enacted fair housing laws, the federal
government neglected to pass any laws to prevent housing discrimination. In fact, to a certain
extent, the federal government was counterproductive in efforts to defeat segregation. For
example, the Federal Housing Administration (FHA) instructed its staff and appraisers to
consider the racial makeup of a neighborhood. Also, it is important to note that discrimination in
housing was certainly not limited to African Americans. Other minorities and religious groups
were commonly discriminated against, as were women.
Finally, in 1954, the U.S. Supreme Court rendered its landmark decision in Brown v.
Board of Education, reversing the "separate but equal" decision in Plessy. The Brown case
outlawed segregation in schools and marked the beginning of the end of the era of legalized
segregation.
In November 1962, President Kennedy signed an executive order, entitled Equal
Opportunity in Housing, prohibiting discrimination in housing that is owned, operated or assisted
by the federal government. The order required federal agencies to take action to prevent
discrimination based upon race, color, creed or national origin. Although the executive order
was the first federal anti-discrimination initiative of the 20th century, it had limited impact on the
housing market.
Two years later, Congress enacted Title VI to the Civil Rights Act of 1964, which
prohibited discrimination in programs receiving federal financial assistance. Once again, this
Act had little effect since it did not prohibit discrimination in the private housing market.
The real change in fair housing came in 1968, a year that is considered the birth of
modern fair housing. In addition to the assassination of Rev. Martin Luther King, Jr., two
historic events occurred that year that forever changed the housing market.
First, in April, Congress enacted the Fair Housing Act (Title VIII of the Civil Rights Act
of 1968). This Act bans discrimination on the basis of race, color, religion, and national origin in
most types of housing transactions. The Act also contains a variety of remedies to attack
housing discrimination, including private discrimination. Second, in June, the U.S. Supreme
Court rendered its decision in Jones v. Alfred H. Mayer Co., and held that the Civil Rights Act of
1866 banned private, as well as government, racial discrimination in housing. Thus the 1866 Act
was given new life, and could be used to fight racial discrimination.
The Fair Housing Act outlaws a variety of private discriminatory acts, including refusal
2
to rent or sell, discrimination in the terms of sale or rental, blockbusting, and discrimination in
advertising and in the use of real estate services. In 1974, the Fair Housing Act was expanded to
include prohibition of gender discrimination, and Section 8 programs were created. In the same
year, Congress passed the Equal Credit Opportunity Act, which prohibited credit discrimination
in housing on the basis of race, color, religion, national origin, gender or marital status, and age.
In the 1970's various federal legislation was enacted to prohibit discrimination in federal
programs, and to include additional protected classes. Congress enacted Section 504 of the
Rehabilitation Act of 1973, prohibiting discrimination against handicapped persons in all
federally assisted programs, including housing. Later, Congress enacted the Age Discrimination
Act of 1975, which prohibited discrimination on the basis of age in programs receiving federal
financial assistance. In 1980, President Carter expanded Kennedy's executive order to include
gender-based discrimination, and to grant HUD additional authority to issue regulations to
further fair housing in federal programs.
After the enactment of the Fair Housing Act, the U.S. Supreme Court rendered several
important decisions favorable to attacking housing discrimination. In 1972, the Court held in
Trafficante v. Metropolitan Life Insurance Co. that the Fair Housing Act should be broadly
construed, and that HUD's interpretation of the act should be given great weight. As a
tremendous, practical importance, the Court also upheld the right of housing organizations and
other residents to sue persons or municipalities that violated the Fair Housing Act. In 1982, the
Court rendered an important decision entitled Havens Realty Corp. v. Coleman, which permitted
housing organizations and testers to sue in racial steering cases. These court cases enable private
and public organizations to investigate fair housing violations and to file actions for civil
penalties and damages.
On September 13, 1988, former President Ronald Reagan signed the Fair Housing
Amendments Act of 1988. The Amendment became effective March 12, 1989. The 1988
Amendment was enacted to expand the coverage of the Fair Housing Act and to enhance
enforcement of the act.
The 1988 Amendment made major changes to Title VIII, including adding two protected
classes to the Fair Housing Act: (1) families with children and (2) handicapped persons. The
Amendment also modified the administrative process for HUD complaints, and essentially
provides that HUD has a higher degree of authority to enforce the Fair Housing Act. The
Amendment removed the cap on punitive damages and increased the available damages and civil
penalties. The Amendment also extends Title VIII to other discriminatory practices, relating to
real estate loans for repairs and improvements, certain secondary market
activities, and real estate appraisals.
3
FAIR HOUSING IN AMERICA.
CHRONOLOGY OF IMPORTANT CONSTITUTIONAL
ACTS AND FEDERAL LEGISLATION
1787
U.S. Constitution
(Article 1, Section 2)
For purposes of number of representatives,
slaves count as three-fifths of a person.
1791
Bill of Rights
(First 10 Amendments)
Fifth Amendment guarantees right to due
process.
1865
13th Amendment
Slavery abolished, and Congress given power
to enact appropriate legislation to enforce this
article.
1866
Civil Rights Act of 1866
(42 U.S.C. 1982)
Enacted under authority of 13th Amendment,
this Act guarantees all property rights enjoyed
by white citizens to all U.S. citizens regardless
of race.
1868
14th Amendment
14th Amendment (and 5th Amendment)
prohibits government discrimination.
1962
Executive Order 11063
President Kennedy directs all federal agencies
to take all action necessary to prevent
discrimination because of race, color, creed, or
national origin.
1964
Civil Rights Act of 1964
(Title VI)
1968
Civil Rights Act of 1968
(Title VIII - The Fair Housing Act)
1) Prohibits discrimination based upon race,
color and national origin in federally assisted
programs, including public housing.
2) Authorizes withholding of federal funding
from state or local grantees engaging in
discriminatory activity.
1) Outlaws private discrimination in housing,
including refusal to Fair Housing Act) rent or
sell.
2) Also outlaws private discrimination in
advertising, terms of sale or rental,
blockbusting, and use of real estate services.
3) Exemption for individual owners of singlefamily home (where no real estate broker is
used) if owner does not own more than three
such homes.
4) Exemption for housing operations by
qualifying religious groups or private clubs.
4
1973
Rehabilitation Act of
1973 (Section 504)
Prohibits discrimination against handicapped
persons in all federally assisted programs,
including housing.
1974
Equal Credit
Opportunity Act (ECOA)
Prohibits credit discrimination in housing,
based upon race, color, religion, national
origin, sex, marital status, or age.
1974
Housing and Community
Development Act of 1974
1) Expands Fair Housing Act to include
prohibition of sex discrimination in housing.
2) Creates Section 8 programs.
3) Establishes Block Grant program and Urban
Development Action Grant program.
1975
The Age Discrimination
Act of 1975
Prohibits discrimination on the basis of age in
programs receiving federal financial assistance
1980
Executive Order 12259
President Carter expands Kennedy's 1962
Executive Order to include sex-based
discrimination, and grants HUD secretary
additional authority to issue regulations.
1988
Fair Housing Amendments
Act of 1988
1) Broadens Title VIII, to include protected
classes of handicapped persons and familial
status (with exception for older person
housing).
2) Mandates handicapped accessibility
requirements for new multi-family properties,
and permits handicapped tenants to modify
existing housing (at tenants' expense).
3) Increases civil and administrative
enforcement relating to potential monetary
awards, punitive damages, and attorneys' fees.
5
FAIR HOUSING IN AMERICA
CHRONOLOGY OF IMPORTANT
U.S. SUPREME COURT CASES
1857
Dred Scott v. Sandford
Persons of African descent, whether they be
slaves or free, are not citizens of the United
States entitled to the privileges and immunities
of white citizens.
1883
Civil Rights Cases
14th Amendment prohibits discrimination only if
it is the product of State (government) action.
The 14th Amendment does not prohibit private
acts of discrimination.
1896
Plessy v. Ferguson
Court sets forth separate but equal rule, thus
permitting institutionalized segregation.
1917
Buchanan v. Warley
Court strikes down racial zoning law (on equal
protection grounds) which had specifically
limited blacks and other minorities to specific
areas of town.
1948
Shelley v. Kraemer
Court held that state court enforcement of private
restrictive covenants (based upon race) amounted
to sufficient government involvement to violate
the equal protection clause of the 14th
Amendment.
1948
Hurd v. Hodge
The Shelley rule applies equally to federal courts
(in this case, the District of Columbia), as well as
state courts.
1954
Brown v. Board of Education
Court finally reverses Plessy decision, ending the
separate but equal era.
1967
Reitman v. Mulkey
Court held that California state constitutional
amendment,
which
effectively
nullified
California's fair housing laws, violated the equal
protection clause, since the amendment
encouraged private racial housing discrimination.
6
1968
Jones v. Alfred H. Mayer Co.
Court gives new life to the 1866 Civil Rights Act
by holding that section 1982 bars racial
discrimination (private as well as public) in the
sale or rental of property.
1972
Trafficante v. Metropolitan
Life Insurance Co.
In the Court's first Title VIII decision, Court held
that Fair Housing Act should be broadly
construed, that Title VII (federal employment
discrimination) court cases can be used to
interpret Title VIII, and that HUD's
interpretations of the Act should be entitled to
great weight.
1977
Village of Arlington Heights
v. Metropolitan Housing
Development Corporation
Court holds that a housing corporation and
neighborhood residents had standing to
challenge municipality's denial of rezoning,
which was alleged to have a racially
disproportionate impact. (But Court also held
that some discriminatory intent or purpose was
required to prove unconstitutional behavior.)
1979
Gladstone Realtors v.
Bellwood (1979)
Court upholds municipality and residents'
standing to sue local real estate brokers for racial
steering.
1982
Havens Realty Corp. v.
Coleman
Extends standing to sue in racial steering cases to
fair housing organizations and testers who
investigate housing discrimination complaints.
7
TEACHING HISTORY
1787
1857
1865
1866
1868
1896
1917
U.S. CONSTITUTION
• Slaves three-fifths person
• Blacks no rights
DRED SCOTT v. STANFORD
• People of African descent not citizens
13TH AMENDMENT
• Slavery abolished – End of Civil War
CIVIL RIGHTS ACT
• Property rights to all regardless of race
14TH AMENDMENT
• Prohibits government discrimination
PLESSY v. FERGUSON
• “Separate but equal”
BUCHANAN v. WARLEY
• Racial zoning struck down
8
1948
SHELLEY v. KRAMER
1954
BROWN v. BOARD OF EDUCATION
1962
1964
1968
• State could not enforce private discrimination
• Court reverses Plessy
“Separate but Equal”
PRESIDENT KENNEDY ORDERS
• Equal opportunity Housing for Government Properties
CIVIL RIGHTS ACT
•
Prohibits discrimination in programs that receive federal funds
CIVIL RIGHTS ACT TITLE VIII
•
Race, color, religion, national origin
•
Blockbusting
•
Steering
•
Redling
9
1968
JONES v. MAYER
•
1974
HOUSING & COMMUNITY DEVELOPMENT
•
1974
Prohibits credit discrimination
FAIR HOUSING ORGANIZATIONS
•
1988
Expands to include prohibition of sex discrimination
EQUAL CREDIT OPPORTUNITY (ECOA)
•
1982
Bans racial discrimination in both private and public sectors
And testers may sue in racial steering cases
CHANGES TITLE VIII
•
To include families with children and handicapped
10
Fair Housing Case Studies
A.
Race, Color, National Origin
National Fair Housing Advocate
August 1998
Page 7
All-white Ohio jury awards $11,000 in race case
In February, an all-white Ohio jury awarded $11,000 to an African-American woman after a
white landlord badgered her on the telephone. The jury awarded Margaret Grant, the
plaintiff, $10,000 in punitive damages and $1,000 compensatory damages after a three-day
trial in the Warren County Court of Common Pleas.
Andrew Margolius, a Cleveland attorney who represented Grant in the case, said that this
case was unusual because the discrimination occurred only over the phone. Grant never met
the landlord. Margolius also pointed out that the jury awarded substantial damages although
Grant admitted she would not have moved into the apartment because it would not
accommodate herself and her son.
Woman asked if she is "American" or "Caucasian"
In 1996, Grant was looking for an apartment in Warren, Ohio, a suburb of Youngstown.
Grant was hoping to find an apartment suitable for herself and her son. Grant saw a "FOR
RENT" sign at a fourplex and called the phone number on the sign to ask about the unit.
Grant spoke to the landlord and found that the vacant unit was a two-bedroom apartment.
After Grant asked how big the unit was; however, the landlord began to interrogate her. The
landlord rudely asked if Grant was "an American" and if she was "Caucasian."
Grant told the landlord that she felt questions about her race and nationality were improper.
The landlord told Grant that she could do whatever she wanted with her property. The
landlord refused to tell Grant her name and then hung up her phone.
Landlord denies actions in court but is refuted
At trial, the landlord, whose name is Elizabeth Papiernik, denied that the conversation
between Grant and herself ever occurred. Papiernik asserted that she had rented to AfricanAmericans in the past and denied that she would discriminate against anyone. A witness'
testimony contradicted Papiernik's statements. The witness said that Papiernik had asked for
her race during a phone conversation.
Margolius said that he and Grant felt that Papiernik's bold discrimination and her efforts to
avoid using her name required forceful prosecution. Margolius said that a post-trial motion
11
for equitable relief through training, monitoring, and posting of application and acceptance
procedures, is presently pending before the Warren County Court.
Grant originally filed her complaint with the Ohio Civil Rights Commission.
[Grant v. Papiernik, Court of Common Pleas, Warren County, Ohio; Case No. 96 CV
1537]
National Fair Housing Advocate
January 1998
Page 3
Catholic nuns win $250,000 in Chicago race case
In November, two nuns who were unfairly evicted settled a federal fair housing lawsuit for
$250,000. Sister Phyllis Sheppard, who is African-American, and Sister Kathleen Burke,
who is white, received guidance and legal assistance from the Leadership Council for
Metropolitan Open Communities. The Leadership Council was also a plaintiff in the federal
lawsuit and received a portion of the settlement which covered their costs associated with the
case.
Clarence and Eileen Jacobs, the two white landlords who evicted the nuns, agreed to settle
the case after the Chicago Commission on Human Relations ordered them to pay $165,000 in
damages and attorneys' fees to Sheppard. The Sisters of Providence, the order to which
Sheppard and Burke belonged, promised to use the award to educate people about racism and
racial discrimination.
Burke had lived with another white nun in an apartment owned by the Jacobses for four years
with no problems. When her former roommate moved out, Burke asked Sheppard to move in.
According to the Associated Press, the Chicago neighborhood where the nuns lived was
mostly white.
Landlords gave nuns eight days to move out after African-American nun moved in
Shortly after Sheppard moved in, the Jacobses told Burke and Sheppard that they would have
to vacate the apartment. The landlords gave the nuns eight days to move out. The Jacobses
claimed that the apartment was needed for a family member.
Burke and Sheppard moved out of the apartment, but no relative of the Jacobses ever moved
in. Instead, the apartment was put back on the rental market and rented to a white tenant. The
Leadership Council confirmed that the new tenant was not related to the Jacobses in any way.
Sheppard filed a complaint of racial discrimination with the Chicago Commission of Human
Relations in November 1994. Eleven months later, the Commission ruled that the Jacobses
had violated provisions of the Chicago Fair Housing Ordinance.
12
Sheppard and the Jacobses attended a conciliation conference in an attempt to resolve the
complaint, but a resolution was not reached. So, in July 1996, the Leadership Council, the
Sisters of Providence, and Sheppard filed a federal housing discrimination complaint.
Burke, who said that she had never witnessed discrimination first-hand, asserted that, like
most white Americans, she was unaware that discrimination was still a problem. "I felt like it
was behind us and in the history books. I was wrong," she said.
Sheppard did not attend the press conference to announce the settlement of her complaint.
She did issue a written statement which was read at the conference. Sheppard condemned the
discriminatory actions of the Jacobses. She said, "What happened to me in a Chicago
Northwest Side neighborhood should not occur in any neighborhood."
Sheppard later went on to say that aggressive enforcement of fair housing laws will help to
change that neighborhood. Since the case was filed, Sheppard, who works as a
psychotherapist, has left the Sisters of Providence.
Nun was deeply upset by landlords' actions
Sister Ann Margaret O'Hara of the Sisters of Providence said that Sheppard was deeply upset
by the incident. "She felt her very person was attacked," O'Hara said.
US Department of Housing and Urban Development Secretary Andrew Cuomo said of the
case, "This case shows the outrageous, invidious nature of racial discrimination. Housing
discrimination like this violates our nations laws, and, as this case illustrates, an even higher
law." Cuomo said that HUD and private enforcement agencies like the Leadership Council
would continue to work to eradicate discrimination.
B.
Religion
National Fair Housing Advocate
October 1997
Page 2
Father and Montana Fair Housing win $25,000 in settlement of religious
and family status case
In the largest settlement ever in an fair housing advertising case in Montana, a Park County
man and Montana Fair Housing received $25,000. The March settlement resolved a 1995
federal lawsuit filed by Robert B., the unidentified father of a minor child.
The suit was filed against Thomas Burns and Doug Kenyon, the owners and publishers of the
Montana Pioneer, a monthly tabloid newspaper. Also named in the suit were Malcolm and
Coreen Hooker, the owners of a Livingston, Montana apartment complex. The suit alleged
13
religious and family status discrimination in the rental of housing, in violation of the Fair
Housing Act.
Newspaper ran ads which stated preferences for "singles" and members of a certain
church
In his lawsuit, the plaintiffs alleged that the Pioneer had regularly published housing ads
which discriminated against families with children and persons who did not belong to a
certain church. Many associate the Pioneer with the Church Universal and Triumphant
(CUT). The plaintiffs asserted that the Hookers had run ads which discriminated against nonCUT members and families with minor children. They also refused to provide housing to
families or non-CUT members even when units were available. Montana Fair Housing, a
non-profit fair housing group in Missoula, joined the lawsuit several months after it was
filed.
US District Court Judge Jack Shanstrom approved the Consent Order which called for the
defendants to pay $25,000 to Robert B. and Montana Fair Housing. The Consent Order also
enjoined the defendants from discriminating in the future and included a list of words and
phrases that the Pioneer was told not to use in classified ads in the future. They included
"prefer male KOF," "adults only," "single working persons preferred," "KOF family or
singles only," and others.
Publishers agree to print apology for running discriminatory advertisements
According to Montana Fair Housing, KOF is an abbreviation for "Keeper Of the Flame," a
term used for members of the Church Universal and Triumphant. The Consent Order also
required the Pioneer to publish an apology to its readers for the harm it caused by running
discriminatory advertisements.
In its newsletter, Montana Fair Housing condemned the actions of the Pioneer's publishers
and the Hookers. "These ads exhibited a total disregard for the equal housing rights of
families with children, people with disabilities, and people who didn't subscribe to the same
religion as the publishers or the apartment owners," the group stated.
According to Susan Fifield, the executive director of Montana Fair Housing, this case was
filed as a result of activities conducted using funds from the Fair Housing Initiatives
Program.
14
C.
Sex
National Fair Housing Advocate
August 1998
Page 4
DC condo association pays $550,000 in race/sex case
The Carrollsburg Condominium Unit Owners Association will pay $550,000 to an AfricanAmerican condo owner to settle charges that the association did not go far enough to protect
her from racial and sexual harassment. The June settlement also calls for the condominium
owners association to buy the woman's condo back from her for $52,000.
Harassment became so severe that woman feared going home
Deborah Reeves, an African-American attorney, moved into southwest Washington's
Carrollsburg Condominium complex in 1981. In 1989, she met Thomas Schongalla, a white
man who also lived at the complex. Schongalla made it clear that he did not like Reeves. He
allegedly shouted racial epithets and made sexual comments to her continuously. Reeves told
the Washington Post that the harassment became so severe and so intimidating that she hated
to go home at all.
Schongalla would catch Reeves in the complex's common areas and make threatening
gestures and remarks. Reeves told the Fair Housing Council of Greater Washington about
encounters she had with Schongalla in the complex's parking lots, lobby, and laundry rooms.
In August 1993, Schongalla left a note for Reeves at the front desk of their building. Among
other things, it said, "See you in the backyard hanging from a tree."
Reeves complained to the condo association and asked them to take action against
Schongalla. Reeves asked the association to do something to stop the harassment, but the
association made no move, even though authorities convicted Schongalla on charges of
making threats against Reeves.
Reeves said that she wanted the association to buy Schongalla's condo from him to get him
out of the complex. At the very least, Reeves expected the association to take some sort of
action to stop the harassment she was enduring. The association did write letters to
Schongalla, but did nothing to ensure that he stopped harassing Reeves.
Because the association did next to nothing to stop Schongalla from harassing her, Reeves
took her complaint to the Fair Housing Council. The Council helped Reeves file a federal
lawsuit against the association, alleging that the association had violated the Fair Housing
Act because it took no action against Schongalla. The Council's activities are partially funded
by HUD's Fair Housing Initiatives Program.
The Washington Lawyers' Committee for Civil Rights and Urban Affairs agreed to represent
Reeves, with the firm of Covington & Burling, which took the case for free. According to the
15
Washington Post, Reeves' attorneys saw this case as a way to hold condo associations to the
same set of rules that apartment complex owners must follow. In the case, federal district
Judge Ricardo M. Urbina ruled that condo owners have the right to sue associations under the
Fair Housing Act.
Defendant admits his dislike for "aggressive" Blacks, feminists, and Jews during
deposition
Schongalla admitted to Reeves' attorneys that he did not like certain types of people. The
Washington Post reported that during his deposition for the lawsuit, lawyers asked
Schongalla whether he considers himself ethnically biased. "I do," he replied. "I have had
enough Blacks, enough aggressive feminist women and enough aggressive Jews for two
lifetimes."
The association admitted no wrongdoing in agreeing to settle the matter. Schongalla,
although not financially liable, was ordered by the court to honor his neighbors' rights to live
peacefully. Schongalla still lives in the complex with his wife and their two children.
Reeves now lives in northwestern Washington.
D.
Handicap
National Fair Housing Advocate
August 1998
Page 5
Disabled VA man wins $65,000 in parking space dispute
A disabled Virginia man won a $65,000 settlement against a condominium complex where
administrators allegedly refused to allow a reasonable accommodation in the form of a
reserved parking space close to his unit. Albert Leahy, who uses a wheelchair, obtained the
June settlement with help from the Fair Housing Council of Greater Washington.
According to the settlement agreement, the owners and managers of Alexandria Knolls West
admit no wrongdoing but will pay Albert Leahy, $43,000, the Fair Housing Council of
Greater Washington $20,000, and Long and Foster Real Estate Inc. $2,000. The Virginia
Attorney General's office sued on behalf of the couple and negotiated the settlement.
16
Couple had trouble finding accessible condo
According to the Washington Post, in the fall of 1996, Albert Leahy and his wife began their
search for a home. Most of the condominiums they looked at were too small, or needed too
much work to make them accessible for Albert, who is paralyzed from the waist down and
uses a wheelchair, according to his wife, Andrea.
Albert and Andrea Leahy looked for a condominium for several months. Their real estate
agent from Long and Foster assisted them with the search. When Albert and Andrea Leahy
found Alexandria Knolls West, they said that it was perfect for them, except for the distance
of their parking space and a speed bump in the path between the space and their
condominium.
Condo managers said that they could not give disabled man a parking space closer to
his unit
The couple asked the complex managers if they could switch parking spaces with another
condo owner or work out another type of arrangement. They asked if administrators could
convert a loading zone near their condo into accessible parking, but were denied. A letter
informed them that managers had removed the speed bump, but that the condominium could
not accommodate their request.
"They did not want to deal with us at all," Andrea Leahy told the Washington Post. "They did
not want to meet with us."
The Leahys and their real estate agent turned to the Fair Housing Council, which investigated
their complaint. According to David Berenbaum, the Fair Housing Council's executive
director, condominium officials said that the parking spaces were in a common area, and that
their own set of bylaws governed them.
Berenbaum said that the administrators at Alexandria Knolls told him that they believed the
federal Fair Housing Act did not apply to condominiums in cases like this one. "We took
major exception to all of this," Berenbaum told the Washington Post in an interview. "The
case law has been very strong and very clear that these kinds of dwellings were intended to
be covered, specifically to the issue of handicapped parking."
The Fair Housing Council tried to settle the matter before filing a lawsuit, but then had to ask
the attorney general's office to intervene. On April 1, after reviewing the situation, Virginia
Attorney General Mark Earley gave his staff the go-ahead to file a civil action against the
condominium's association, its board of directors, and its building manager.
In June, Earley's office announced that they had reached a settlement in the case. A
spokesperson for Earley's office said that the Virgina Attorney General was committed to
fighting discrimination in housing.
17
Defendants will write letter of apology to couple
In addition to the monetary settlement achieved, the settlement agreement required that
condominium officials issue a written apology to the Leahys and their real estate agent,
develop a written policy governing future requests for reasonable accommodations by
persons with disabilities, and undertake training in state and federal fair housing laws.
Albert and Andrea Leahy told the Washington Post that they fought for a parking space
because it was the right thing to do. They wanted to prevent discrimination against others.
"We were not in it for the money," said Andrea Leahy, adding that if they had been, they
would have hired a lawyer.
National Fair Housing Advocate
March/April 1999
Page 5
Blind Chicago woman wins $27,000 settlement in guide dog case
Last December, a blind Chicago woman received a $27,000 to settle a lawsuit in which she
alleged that landlords turned her away because she uses a guide dog. The December 4, 1998
settlement came nearly six months after Theresa DeLaFont filed a lawsuit in the U.S. District
Court in Chicago.
According to DeLaFont's complaint, Marjorie and Richard Brenton, the husband and wife
who own the rental house in question, refused to let her view the house or submit an
application because of her guide dog. According to DeLaFont and her father, William, the
Brentons repeatedly expressed concerns about the dog defecating in the house or in the yard.
According to William DeLaFont, Theresa has used Zanth, a Labrador retriever, for nine
years. In those nine years, according to the DeLaFonts, Zanth has never defecated or urinated
inside their home. "She's never messed in the house the nine years we've had her," William
DeLaFont told the News Sun of Lake County, Ill. "She's like another human being in my
home. This dog is my daughter's companion and best friend."
Giving up Zanth to rent the Brentons' house was not something Theresa DeLaFont could do.
She told the Daily Herald, "I absolutely rely on her. She is with me 24-7."
The discrimination against Theresa DeLaFont was especially harmful because she had
planned on moving to Grayslake to finish her degree in education at the College of Lake
County. Theresa has put those plans on hold, partially because the Brentons refused to rent
her the house. "The house is very close to the college and would have been perfect," William
DeLaFont said in an interview.
18
Theresa DeLaFont took her complaint to the Fair Housing Center of Lake County. Center
staff listened to her allegations against the Brentons and got Jeffrey Taren, a cooperating
attorney, to take the case. Taren helped DeLaFont file the case in District Court in June 1998.
Taren said that the ordeal had left Theresa DeLaFont "very discouraged." He told the
Chicago Tribune that Theresa was embarrassed and humiliated, because she did not get to
rent the Brenton's house.
Patricia Konicki, the executive director of the Lake County Fair Housing Center, told the
Tribune that she hoped this settlement would send a message to landlords who might try to
discriminate against persons with disabilities. "It is my hope," Konicki said, "that people with
disabilities realize that they have the same rights to housing as people without disabilities."
E.
Familial Status:
National Fair Housing Advocate
February 1999
Page 2
Philadelphia landlord agrees to pay $725,000 for restricting families with
children to basement apartments
In August, The Public Interest Law Center of Philadelphia and the Tenants' Action Group
reached an agreement with prominent real estate owner Michael Karp. Karp will pay a
$725,000 cash settlement to the plaintiffs. The agreement will ensure that families with
children will not be forced to live in the basement apartments at any one of Karp's
Philadelphia area apartment complexes.
The settlement resolved a lawsuit filed by the Public Interest Law Center on behalf of the
Shammouh family and the Fair Housing Action Center (FHAC), a project of the Tenants'
Action Group. The federal complaint charges Karp and University City Housing Company
with discriminating against families with children in violation of the federal Fair Housing
Act.
The complaint alleges that the company restricted many families with children to basement
level apartments at complexes managed by University City Housing, a real estate
management company owned by Michael Karp.
This is the largest "familial status" fair housing settlement in Pennsylvania since Congress
amended the Fair Housing Act in 1988 to include prohibiting discrimination against families
with children.
The settlement will require that Karp make all of his rental properties available on an equal
basis to families with children and will show a fair housing policy to all prospective tenants.
19
This fair housing policy is required on all documents, correspondence and materials provided
to tenants or prospective tenants. Karp is also obligated to provide fair housing training to his
employees at Summit Gardens, Summit Park, and Woodmere apartments.
University Housing asked that Hamad and Reem Shammouh move from their third floor
apartment at Summit Garden Apartments to a basement level apartment shortly after their
first child was born. If they did not want to move to a basement unit, then they would have to
leave.
The Shammouhs looked for other housing, and when they related this experience to an
employee of a nearby apartment complex, they learned for the first time that University
Housing violated their fair housing rights.
The Fair Housing Action Center investigated the leasing practices of University City
Housing. The Center discovered that agents treated prospective tenants with children
differently than applicants without children at several of its properties.
"We are thrilled with this settlement. We will not stand for housing discrimination in our
community, and we will aggressively investigate and prosecute landlords who violate the
Fair Housing Act," stated Ronaldlyn Latham, Director of the FHAC.
The Public Interest Law Center of Philadelphia represented the Shammouhs and the FHAC.
Karen Black, an attorney formerly with the Law Center, handled the case. "Fair housing law
requires landlords to give families with children the same housing opportunities as everyone
else. The need to ensure that families with children have equal access to housing of their
choice is a national priority," Black said.
Under the terms of the settlement, Karp does not admit to violating the Fair Housing Act.
20
ADVERTISING
1
Fair Housing: Advertising, Rules and Regulations
a.
109.5 – Policy
It is the policy of the United States to provide, within constitutional limitations, for fair
housing throughout the United States. The provisions of the Fair Housing Act (42 U.S.C.
3600,et seq.) make it unlawful to discriminate in the sale, rental, and financing of
housing, and in the provision of brokerage and appraisal services, because of race, colo
religion, sex, handicap, familial status, or national origin. Section 804(c) of the Fair
Housing Act, 42 U.S.C. 3604(c), as amended, makes it unlawful to make, print, or
publish, or cause too be made, printed, or published, any notice, statement, or
advertisement, with respect to at the sale or rental of a dwelling, that indicates any
preference, limitation, discrimination because of race, color, religion, sex, handicap,
familial status, or national origin, or an intention to make any such preference, limitation
or discrimination. However, the prohibitions of the act regarding familial status do not
apply with respect to "housing for older persons", as defined in section 807(b) of the act.
b.
§109.10 – Purpose.
The purpose of this part is to assist all advertising media, advertising agencies and all
other person who use advertising to make, print, or publish, or cause to be made, printed,
or published, advertisements with respect to the sale, rental, or financing of dwellings
which are in compliance with the requirements of the Fair Housing Act. These
regulations also describe the matters this Department will review in evaluating
compliance with the Fair Housing Act in connection with investigations of complaints
alleging discriminatory housing practices involving advertising.
c.
§109.16 – Definitions
As used in this part:
(a)
"Assistant Secretary" means the Assistant
Secretary Fair Housing and Equal Opportunity.
(b)
"General Counsel" means the General Counsel of
the Development of Housing and Urban
Development.
(c)
"Dwelling" means any building, structure, or
portion thereof which is occupied as, or designed or
intended for occupancy as, a residence by one or
more families, and any vacant land which is offered
for sale or lease for the construction or location
21
thereon of any such building, structure, or portion
thereof.
(d)
"Family" includes a single individual.
(e)
"Person" includes one or more individuals,
corporations, partnerships, associations, labor
organizations, legal representatives, mutual
companies, joint stock companies, trusts,
unincorporated organizations, trustees, trustees in
cases under Title 11 of the United States Code,
receivers, and fiduciaries.
(f)
"To rent" includes to lease, to sublease, to let and
otherwise to grant for a consideration at the right to
occupy premises not owned by at the occupant.
(g)
"Discriminatory housing practice" means an act
that is unlawful under section 804,805,806, or 818
of the Fair Housing Act.
(h)
"Handicap" means, with respect to a person(1)
A physical or mental impairment that
substantially limits one or more of such
person's major life activities,
(2)
A record of having such an impairment, or
(3)
Being regarded
impairment.
as
having
such
an
This term does not include current, illegal use of or
addiction to a controlled substance (as defined in
section 102 of the Controlled Substances Act (21
U.S.C. 802)). For purposes of this part, an
individual shall not be considered to have a
handicap solely because that individual is a
transvestite.
(i)
"Familial status" means one or more individuals
(who have not attained the age of 18 years) being
domiciled with(1)
A parent or another person having legal
custody of such individual or individuals; or
22
(2)
d.
The designee of such parent or other persons
having such custody, with the written
permission of such parent or other person.
The
protections
afforded
against
discrimination on the basis of familial status
shall apply to any person who is pregnant or
is in the process of securing legal custody of
any individual who has not attained the age
of 18 years.
§109.16 – Scope.
(a)
General. This part describes the matters the
Department will review in evaluating compliance
with the Fair Housing Act in connection with
investigations of complaints alleging discriminatory
housing practice involving advertising. Use of
these criteria will be considered by the General
Counsel in making determinations as to whether
there is reasonable cause to believe that a
discriminatory housing practice has occurred or is
about to occur,
(1)
Advertising media. This part provides
criteria for use by advertising media in
determining whether to accept and publish
advertising regarding sales or rental
transactions. Use of these criteria will be
considered by the General Counsel in
making determinations as to whether there is
reasonable cause to believe that a
discriminatory housing practice has occurred
or is about to occur,
(2)
Persons placing advertisements. A failure
by persons placing advertisements to use the
criteria contained in this part, when found in
connection with the investigation of a
complaint alleging the making or use of
discriminatory advertisements, will be
considered by the General Counsel in
making a determination of reasonable cause
to believe that a discriminatory housing
practice has occurred or is about to occur.
23
(b)
e.
Affirmative advertising efforts. Nothing in this part
shall be construed to restrict advertising efforts
designed to attract persons to dwellings who would
not ordinarily be expected to apply, when such
efforts are pursuant to an affirmative marketing
program or undertaken to remedy the effects of
prior discrimination in connection wit
§109.20 – Use of words, phrases, symbols and visual aids.
The following words, phrases, symbols, and forms typify
those most often used in residential real estate advertising
to convey either overt or tacit discriminatory preferences or
limitations. In considering a complaint under the Fair
Housing Act, the Department will normally consider the
use of these and comparable words, phrases, symbols, and
forms to indicate a possible violation of the act and to
establish a need for further proceedings on the complaint, if
it is apparent from the context of the usage that
discrimination within the meaning of the act is likely to
result.
(a)
Words descriptive of dwelling, landlord, and
tenants. White private home, Colored home,
Jewish home, Hispanic residence, adult building.
(b)
Words indicative of race, color, religion, sex,
handicap, familial status, or national origin(1)
Race-Negro, Black, Caucasian, Oriental,
American Indian.
(2)
Color-White, Black, Colored.
(3)
Religion-Protestant,
Jew.
(4)
National origin-Mexican American, Puerto
Rican, Philippine, Polish, Hungarian, Irish,
Italian, Chicano, African, Hispanic, Chinese,
Indian, Latino.
(5)
Sex-the exclusive use of words in
advertisements, including those involving
the rental of separate units in a single or
multi-family dwelling, stating or tending to
Christian,
Catholic,
24
imply that the housing being advertised is
available to persons of only one sex and not
the other, except where the sharing of living
areas is involved. Nothing in this part
restricts advertisements of dwellings used
exclusively for dormitory facilities by
educational institutions.
(6)
Handicap-crippled, blind, deaf, mentally ill,
retarded, impaired, handicapped, physically
fit.
Nothing in this part restricts the
inclusion of information about the
availability of accessible housing in
advertising of dwellings.
(7)
Familial status-adults, children, singles,
mature persons.
Nothing in this part
restricts advertisements of dwellings which
are intended and operated for occupancy by
older persons and which constitute "housing
for older persons" as defined in Part 100 of
this title.
(8)
Catch words-Words and phrases used in a
discriminatory context should be avoided,
e.g., "restricted", "exclusive", "private",
integrated", "traditional", "board approval",
or "membership approval".
(c)
Symbols or logotypes-Symbols or logotypes which
imply or suggest race, color, religion, sex, handicap,
familial status, or national origin.
(d)
Colloquialisms. Words or phrases used regionally
or locally which imply or suggest race, color,
religion, sex, handicap, familial status, or national
origin.
(e)
Directions to real estate for sale or rent (use of
maps or written instructions). Directions can imply
a discriminatory preference, limitation, or
exclusion. For example, references to real estate
location made in terms of racial or national origin
significant landmarks, such as an existing black
development (signal to blacks) or an existing
development known for its exclusion of minorities
25
(signal to whites). Specific directions which make
reference to a racial or national origin significant
area may indicate a religious preference.
(f)
f.
Area (location) description. Names of facilities
which cater to a particular racial, national origin or
religious group, such as country club or private
school designations, or names of facilities which are
used exclusively by one sex may indicate a
preference.
§109.25 – Selective use of advertising media or content.
The selective use of advertising media or content when
particular combinations thereof are used exclusively with
respect to various housing developments or sites can lead to
discriminatory results and may indicate a violation of the
Fair Housing Act. For example, the use of English
language media catering to the majority population in an
area, when, in such area, there are also available nonEnglish language or other minority media, may have
discriminatory impact. The following are examples of the
selective use of advertisements which may be
discriminatory.
(a)
Selective geographic advertisements.
Such
selective use may involve the strategic placement of
billboards; brochure advertisements distributed
within a limited geographic area by hand or in the
mail; advertising in particular geographic coverage
editions of major metropolitan newspapers or in
newspapers of limited circulation which are mainly
advertising vehicles for reaching a particular
segment of the community; or displays or
announcements available only in selected sales
offices.
(b)
Selective use of equal opportunity slogan or logo.
When placing advertisements, such selective use
may involve placing the equal housing opportunity
slogan or logo in advertising reaching some
geographic areas, but not others, or with respect to
some properties but not others.
(c)
Selective use of human models when conducting
an advertising campaign. Selective advertising
26
may involve an advertising campaign using human
models primarily in media that cater to no racial or
national origin segment of the population without a
complementary advertising campaign that is
directed at other groups. Another example may
involve use of racially mixed models by a developer
to advertise one development and not others.
Similar care must be exercised in advertising in
publications or other media directed at one
particular sex, or at persons without children. Such
selective advertising may involve the use of human
models of members of only one sex, or of adults
only, in displays, photographs or drawings to
indicate preferences for one sex or the other, or for
adults to the exclusion of children.
g.
§109.30 – Fair housing policy and practices
In the investigation of complaints, the Assistant Secretary
will consider the implementation of fair housing policies
and practices provided in this section as evidence of
compliance with the prohibitions against discrimination in
advertising under the Fair Housing Act.
(a)
Use of Equal Housing Opportunity logotype,
statement, or slogan. All advertising of residential
real estate for sale, rent, or financing should contain
an equal housing opportunity logotype, statement,
or slogan as a means of educating the home seeking
public that the property is available to all persons
regardless of race, color, religion, sex, handicap,
familial status, or national origin. The choice of
logotype, statement or slogan will depend on the
type of media used (visual or auditory) and, in space
advertising, on the size of the advertisement. Table
l (see Appendix l) indicated suggested use of the
logotype, statement, or slogan and size of logotype.
Table II (see Appendix l) contains copies of the
suggested Equal Housing Opportunity logo type,
statement and slogan.
(b)
Use of human models.
Human models in
photographs, drawings, or other graphic techniques
may not be used to indicate exclusiveness because
of race, color, religion, sex, handicap, familial
status, or national origin. If models are used in
27
display advertising campaigns, the models should
be clearly definable as reasonably representing
majority and minority groups in the metropolitan
area, both sexes, and, when appropriate, families
with children, Models, if used, should portray
persons in an equal social setting and indicate to the
general public that the housing is open to all
without regard to race, color, religion, sex,
handicap, familial status, or national origin, and is
not for at the exclusive use of one such group.
(c)
Coverage of local laws. Where the Equal Housing
Opportunity statement is used, the advertisement
may also include a statement regarding the coverage
of any local fair housing or human rights ordinance
prohibiting discrimination in the sale, rental, or
financing of dwellings.
(d)
Notification of fair housing policy-(1) Employees.
All publishers of advertisements, advertising
agencies, and firms engaged in the sale, rental or
financing of real estate should provide a printed
copy of their nondiscrimination policy to each. (2)
Clients. All publishers or advertisements
and advertising agencies should post a copy of their
nondiscrimination policy in a conspicuous location
wherever persons place advertising and should have
copies available for all firms and persons using their
advertising services. (3) Publishers' notice. All
publishers should publish at the beginning of at the
real estate advertising section a notice such as that
appearing in Table III (see Appendix 1). The notice
may include a statement regarding the coverage of
any local fair housing or human rights ordinance
prohibiting discrimination in the sale, rental or
financing of
dwellings.1
APPENDIX 1 TO PART 109-FAIR HOUSING ADVERTISING
The following three tables may serve as a guide for the use of the Equal Housing
Opportunity logotype, statement, slogan, and publisher's notice for advertising:
1
..\legal/fairhouse.htm. March 2, 2001
28
Table l
A simple formula can guide the real estate advertiser in using the Equal Housing
Opportunity logotype, statement, or slogan. In all space advertising (advertising in
regularly printed media such as newspapers or magazines) the following standards should
be used:
Size of Advertisement
Illustrations of logotype, Statement, and Slogan.
Equal Housing Opportunity Logotype:
Equal Housing Opportunity Statement:
We are pledged to this letter and spirit of U.S. policy for the achievement of equal
housing opportunity throughout the Nation. We encourage and support an affirmative
advertising and marketing program in which there are no barriers to obtaining housing
because of race, color, religion, sex, handicap, familial status, or national origin.
Equal Housing Opportunity Slogan: "Equal Housing Opportunity."
1/2 page or larger
2x2
1/8 page up to 1/2 page
1x1
4 column inches to 1/8 page
Less than 4 column inches
1/8 x 1/3
(1)
1 Do not use
In any other advertisements, if other logotypes are used in the advertisement, then the
Equal Housing Opportunity logo should be of a size at least equal to the largest of the
other logotypes; if no other logotypes are used, then the type should be in a bold display
face which is clearly visible. Alternatively, when no other logotypes are used, 3 to 5
percent of an advertisement may be devoted to a statement of the equal housing
opportunity police.
In space advertising which is less than 4 column inches (one column 4 inches long or two
column 2 inches long) of a page in size, the Equal Housing Opportunity slogan should be
used. Such advertisements may be grouped with other advertisements under a caption
which states that the housing is available to all without regard to race, color, religion, sex,
handicap, familial status, or national origin.
29
Table 11
Illustrations of logotype, Statement, and Slogan. Equal Housing Opportunity Logotype:
Equal Housing Opportunity Statement:
We are pledged to this letter and spirit of U.S. policy for the achievement of equal
housing opportunity throughout the Nation. We encourage and support an affirmative
advertising and marketing program in which there are no barriers to obtaining housing
because of race, color, religion, sex, handicap, familial status, or national origin.
Equal Housing Opportunity Slogan: "Equal Housing Opportunity."
Table lll
Illustration of Media Notice-Publisher's notice; All real state advertised herein is subject
to the Federal Fair Housing Act, which makes it illegal to advertise "any preference,
imitation, or discrimination because of race, Color, religion, sex, handicap, familial
status, or national origin, or intention to make any such preference, limitation, or
discrimination."
We will not knowingly accept any advertising for real estate which is in violation of the
law. All persons are hereby informed that all dwellings advertised are availableon an
equal opportunity basis.
2.
Advertising Guidance
U. S. Department of Housing and Urban Development
Washington, D.C. 20410-2000
January 9, 1995
MEMORANDUM FOR: FHEO Office Directors, Enforcement Directors, Staff, Office of
Investigations, Field Assistant General Counsel2
FROM: Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity,
SUBJECT: Guidance Regarding Advertisements Under 804(c) of the Fair Housing Act
2
fairhousing.com/hud_resources/hudguid2.htm. National Advocate Online. March 1, 2001
30
EXCERPTS
The purpose of this memorandum is to provide guidance on the procedures for the
acceptance and investigation of allegations of discrimination under Section 804(c) of the Fair
Housing Act (the Act) involving the publication of real estate advertisements. (This
memorandum does not address fair housing issues associated with the publication of
advertisements containing human models, and does not address 804(c) liability for making
discriminatory statement.)
Recently, the number of inquiries involving whether or not potential violations of the Act
occur through use of certain words or phrases has increased, and these issues cannot, in some
situations, be answered by referring to decided cases alone. In some circumstances, the
Advertising Guidelines, published at 24C.F.R. Part 109, have been interpreted (usually by
persons outside of HUD) to extend the liability for advertisements to circumstances which
are unreasonable.
Section 804(c) of the Act prohibits the making, printing and publishing of advertisements
which state a preference, limitation or discrimination on the basis of race, color, religion, sex,
handicap, familial status, or national origin. The prohibition applies to publishers, such as
newspapers and directories, as well as to persons and entities who place real estate
advertisements. It also applies to advertisements where the underlying property may be
exempt from the provisions of the Act, but where the advertisement itself violates the Act.
See 42 U.S.C. 3603 (b).
Publishers and advertisers are responsible under the Act for making, printing, or
publishing an advertisement that violates the Act on its face. Thus, they should not
publish or cause to be published an advertisement that on its face expresses a preference,
limitation or discrimination on the basis of race, color, religion, sex, handicap, familial status,
or national origin. To the extent that either the Advertising Guidelines or the case law do not
state that particular terms or phrases (or closely comparable terms) may violate the Act, a
publisher is not liable under the Act for advertisements which, in the context of the usage in a
particular advertisement, might indicate a preference, limitation or discrimination, but where
such a preference is not readily apparent to an ordinary reader. Therefore, complaints will not
be accepted against publishers concerning advertisements where the language might or might
not be viewed as being used in a discriminatory context.
For example, Intake staff should not accept a complaint against a newspaper for running an
advertisement which includes the phrase female roommate wanted because the advertisement
does not indicate whether the requirements for the shared living exception have been met.
Publishers can rely on the representations of the individual placing the ad that shared living
arrangements apply to the property in question. Persons placing such advertisements,
however, are responsible for satisfying the conditions for the exemption. Thus, an ad for a
female roommate could result in liability for the person placing the ad if the housing being
advertised is actually a separate dwelling unit without shared living spaces. See 24 CFR
109.20.
31
Similarly, Intake staff should not file a familial status complaint against a publisher of an
advertisement if the advertisement indicates on its face that it is housing for older persons.
While an owner-respondent may be held responsible for running an advertisement indicating
an exclusion of families with children if his or her property does not meet the "housing for
older persons" exemption, a publisher is entitled to rely on the owner's assurance that the
property is exempt.
The following is policy guidance on certain advertising issues which have arisen
recently. We are currently reviewing past guidance from this office and from the Office
of General Counsel and will update our guidance as appropriate.
1. Race, color, National origin. Real estate advertisements should state no discriminatory
preference or limitation on account of race, color, or national origin. Use of words
describing the housing, the current or potential residents, or the neighbors or
neighborhood in racial or ethnic terms (i.e, white family home, no Irish) will create
liability under this section.
However, advertisements which are facially neutral will not create liability. Thus,
complaints over use of phrases such as master bedroom, rare find, or desirable
neighborhood should not filed.
2.
Religion. Advertisements should not contain an explicit preference, limitation or
discrimination on account of religion (i.e. no Jews, Christian home). Advertisements
which use the legal name of an entity which contains a religious reference (for example,
Roselawn Catholic Home), or those which contain a religious symbol, (such as a cross),
standing alone, may indicate religious preference. However, if such an advertisement
includes a disclaimer (such as the statement "This Home does not discriminate on the
basis of race, color, religion, national origin, sex, handicap or familial status") it will not
violate the Act. Advertisements containing descriptions of properties (apartment complex
with chapel), or services (kosher meals available) do not on their face state a preference
for persons likely to make use of those facilities, and are not violations of the Act.
The use of secularized terms or symbols relating to religious holidays such as Santa
Claus, Easter Bunny, or St.Valentine's Day images, or phrases such as Merry Christmas,
Happy Easter, or the like does not constitute a violation of the Act.
3. Sex. Advertisements for single family dwellings or separate units in a multi-family
dwelling should contain no explicit preference, limitation or discrimination based on sex.
Use of the term master bedroom does not constitute a violation of either the sex
discrimination provisions or the race discrimination provisions. Terms such as "motherin-law suite" and "bachelor apartment" are commonly used as physical descriptions of
housing units and do not violate the Act.
4. Handicap. Real estate advertisements should not contain explicit exclusions, limitations,
or other indications of discrimination based on handicap (i.e., no wheelchairs).
Advertisements containing descriptions of properties (great view, fourth-floor walk-up,
32
walk-in closets), services or facilities (jogging trails), or neighborhoods (walk to busstop) do not violate the Act. Advertisements describing the conduct required of residents
("non-smoking", "sober") do not violate the Act. Advertisements containing descriptions
of accessibility features are lawful (wheelchair ramp).
5.
Familial status. Advertisements may not state an explicit preference, limitation or
discrimination based on familial status. Advertisements may not contain limitations on
the number or ages of children, or state a preference for adults, couples or singles.
Advertisements describing the properties (two bedroom, cozy, family room), services and
facilities (no bicycles allowed) or neighborhoods (quiet streets) are not facially
discriminatory and do not violate the Act.
Please contact Sara R. Pratt, Director, Office of Investigations or Susan Forward, Deputy
Assistant Secretary for Enforcement and Investigations, for further information.
33