Potential Fair Housing Violations You May Not Know About
The Fair Housing Act was signed 50 years ago today, but Tuesday’s questioning of Facebook’s founder on Capitol Hill points to its relevance five decades later. Amid inquiries about data storage and sharing, U.S. Sen. Chris Coons, D-Del., highlighted the potentially discriminatory power of the platform’s targeted advertising.
"...Facebook lets advertisers exclude users by race in real estate advertising," Coons said, pointing to reporting by ProPublica. "There was a way that you could say this particular ad I only want to be seen by white folks, not by people of color, and that clearly violates fair housing laws and our basic sense of fairness in the United States."
The issue, which prompted a lawsuit last month, shows the Fair Housing Act still matters half a century later. Branden Butler, who leads nonprofit Legal Aid Society of San Diego's fair housing division, said the decades-old legislation is connected to other current events, such as the #MeToo movement.
KPBS spoke with Butler to discuss these topics and what fair housing looks like today.
Q: What are some typical examples of violations of the Fair Housing Act that you see or people bring to you?
A: What we see is what the country sees, which is there will be cases of perhaps disability discrimination; not providing a unit to someone with a disability or somehow providing differential treatment on the basis of their disability.
We see cases of sexual harassment in housing, where a housing provider may be providing a hostile environment on the basis or gender, or asking for perhaps sexual favors in return for rent.
We also see national origin discrimination; perhaps people being evicted or unable to get a unit on the basis of the country where they're from, generally cases involving Latinos.
Q: Can you explain how sexual harassment violates the Fair Housing Act and how you approach that kind of case?
A: It’s very interesting. Essentially for gender protections we protect people on the basis of their gender, so if there's unwanted sexual attention or treating someone differently because of their gender you know this is where fair housing becomes involved.
The cases generally range from two types: one of a hostile environment, where a housing provider may be leering, starting, making comments about your body, showing up unannounced, maybe entering your unit without permission, on and on. It’s really looking at the totality of these transactions, so that creates a hostile environment, similar to the workplace.
Then we have the other form of sexual harassment which is where a housing provider may be demanding some type of whether it be a sexual favor or it be some type of demeaning treatment on the basis of their gender. Generally, this involves someone who's very prone to being evicted or is in a difficult situation. Even when the victim acquiesced to the unwanted sexual interaction, it still is housing discrimination.
Q: What happens to landlords who violate the Fair Housing Act?
A: The landlord is going to be liable for the damages that are inflicted on the victim of housing discrimination. Perhaps it was unwanted touching if we’re talking about sexual harassment context. Also the lost housing opportunity, perhaps you’ve had to move due to the discrimination and then of course there’s the emotional pain of being a victim of housing discrimination.
Often times whether it be a HUD case or one in federal court, there will be injunctive relief, meaning that the housing provider may have to take training, housing provider will have to refrain from their discriminatory acts. There may be oversight. There may be monitoring. There are a host of other remedies that come on to ensure that this type of discrimination is eliminated from our housing market.
Q: Can you explain where someone may not intend to do something but actually is implementing a policy that could violate the Fair Housing Act?
A: As long as the Fair Housing Act has been in existence there’s been a theory that’s been validated by the Supreme Court and many courts which is that of a disparate impact. Meaning that if there is a policy or neutral law implemented but somehow has a certain impact on a protected class and there perhaps is a lesser discriminatory act to do this could potentially violated the Fair Housing Act.
You can see this with perhaps if there’s a policy that was overly restrictive regarding how many folks can live in an apartment, families with children, rather. That would be an example of a neutral rule could have a disproportionate impact in San Diego County if it was overly restrictive.
...HUD came out a couple of years ago with a notice talking about that how they would view criminal record bans under the Fair Housing Act. Basically, an arrest record ban — saying “I won’t rent to someone because of an arrest record” — would be a violation. It’s too broad. An arrest doesn’t lead to a conviction. The theory was disparate impact. The idea that if there is a disproportionate number of African-Americans and Latinos in prison that a rule that no one with a felony could live here would have a disproportionate impact on a distinct protected class.
And there’s a lesser discriminatory way to do it, which is to analyze what the crime was, how long ago, has someone reformed themself, you know going through a host of factors.
Q: There’s a lot of talk about mental illness being an issue that ails those on the street from actually getting into a home. Can someone be discriminated against for a mental illness?
A: Persons with disabilities including those with a mental health disability are absolutely included in the Fair Housing Act. In fact, there was a recent study released by I think partners of HUD that did testing of the housing market on the basis of a mental health disability and found very high levels of discrimination.
Q: Are you seeing more instances of people complaining being denied housing on the basis of a mental health disability?
A: Not more, but I think what we’re seeing is as more affordable housing comes online people with mental health disabilities who perhaps may have had a rental record or rental history that may not have been as positive due to their disability are when they’re trying to obtain housing, are bringing that up as a reasonable accommodation, which is allowed under the Fair Housing Act.
Essentially, if you’re a person with a disability and there’s a change to a rule, policy or procedure that you need that’s necessary for your disability to live equally, perhaps that’s something that a person with mental health disability is asking for, saying, “Hey, I was evicted or I had a concern in my past housing a couple of years ago, now I’m maybe taking medication or working with folks,’ — etcetera, etcetera — ‘Can I still move in despite this rule?’ So we’re seeing that emerging issue and challenges to that.
Q: What should we be watching when it comes to fair housing over the next 50 years?
A: I think unfortunately it will remain some of the similar issues but changing. For instance there was a complaint filed against Facebook recently over this last month regarding new forms of advertising, the ability to not advertise to certain segments just based on your advertising set up. You know, “I’m not going to provide housing listings to folks of this gender, this region.” So I think those are emerging issue in the future of how we advertise, how do algorithms and things like that exclude people from the housing market as well as just the same old housing, forms of housing discrimination.
Much of the past it still with us, yet there are some emerging issues regarding I think technology and how we obtain housing, but I think it's going to be many of the same issues.