1. What housing providers are covered under the Fair Housing laws?

The federal fair housing laws prohibit discrimination in all housing except for owner-occupied housing with four or fewer units. In California, the protections for tenants are extended even further: the only exemptions are for owner-occupied single-family houses that rent to only one roomer or boarder, housing owned by a private club, and for housing owned by religious organizations.

2. What groups are protected under the Fair Housing laws?

California laws, in conjunction with federal laws, provide extensive protection for many groups of people. These laws prohibit discrimination on basis of Race, Religion, National Origin, Ancestry, Alienage, Gender, Marital Status, Familial Status, and Disability. California’s Unruh Act goes on to prohibit other forms of arbitrary discrimination, such as that based on age or sexual orientation.

3. What types of applications can a housing provider use?

Housing providers may require all applicants to complete a standard rental application form asking credit standing, employment history, income, personal references and rental history. In the screening process, housing providers should use objective criteria, applied uniformly to all applicants. Failure to follow established procedures may constitute evidence of illegal discrimination.

However, even if a housing provider applies the selection criteria uniformly, the housing provider can still be in violation if less stringent criteria could be used to assess the applicant’s ability to meet tenancy obligations. In deciding whether the housing provider actually relied on the permissible factors, a court might ask the following questions:

a. Did the housing provider request information concerning selection factors from the plaintiff and other applicants?

b. Did the housing provider secure such information from other sources?

c. Did the housing provider request the information from the applicant in question and other applicants while selecting a tenant?

d. Did the housing provider make any attempt to check the accuracy of the information?

e. Did the housing provider perform this check while deciding who to rent to?

f. Did other applicants have better ratings in these areas than the applicant in question?

4. What types of questions can not be asked of an applicant by a housing provider?

The housing provider can not ask an applicant questions about race, religion, national origin, alienage, gender, marital status, familial status, disability, age, or sexual orientation. These factors are irrelevant to the applicant’s ability to pay and may be indicators of the intent to discriminate. For example, a housing provider can not ask which church, if any, an applicant attends. Nor can a housing provider inquire into the race of a single mother’s children. The fact that the housing provider fails to use objective criteria can be evidence in itself to support a finding of illegal discrimination.

The federal fair housing laws protect non-citizens from racial and other forms of discrimination in property rights matters. Federal law states that "all persons within the jurisdiction of the U.S." have the same right to make and enforce contracts and enjoy "the full and equal benefit of all laws." This protection has been extended to immigrants. Therefore, any immigrant has and may enforce fair housing rights so long as the immigrant is lawfully in this country. It is also important to note that housing providers may not inquire into the immigration status of applicants (unless a federal subsidy is involved and regulations require them to do so).

6. Can a housing provider refuse to rent to an applicant in a protected group simply because the provider does not like the applicant? The housing provider must be extremely careful in the use of subjective factors. On rare occasions, a housing provider can reject an applicant simply because they do not like the applicant. For example, if a member of a protected group makes persistent, harassing, and rude demands during the application process, the housing provider might be justified in rejecting the applicant on that basis. However, even in this situation, providers may bear the burden of proving that the applicant was rejected for permissible reasons.7. Can a housing provider inquire into tenants’ general character?

Residents of California have a constitutional right to privacy. Under this right, persons cannot be required to disclose personal information if they have reasonable expectations of privacy, the invasion of privacy is serious, and countervailing interests do not justify the disclosure. Therefore, a housing provider’s inquiry into a tenant’s general character risks liability for discrimination.

Nevertheless, housing providers do have some duty to protect the public and other tenants from foreseeable harms from a tenant’s dangerous propensities. In one California case, the parents of a child killed by a bullet fired from the adjoining premises successfully sued the perpetrator’s housing provider on the grounds that the housing provider knew of the tenant’s dangerous propensities before renewing a lease. However, recent cases suggest that California courts are lessening what are perceived as "unfair burdens on housing providers" to protect tenants’ safety. One court has ruled that a housing provider is not strictly liable to a tenant for injuries caused by a defect in the premises.

8. Can a housing provider use income requirements for tenant selection?

Yes, but a housing provider’s income standards must be applied in a uniform and non-discriminatory manner. For example, it would violate fair housing laws for the provider to subject African-Americans to more stringent income standards than other prospective tenants.

On the question of minimum income requirements, there is a conflict in the governing law. On the one hand, the California Supreme Court has ruled that it is okay for housing providers to require prospective tenants to have a monthly income at least three times the monthly rent, despite the fact that this type of requirement may have a disproportionately negative impact on blacks and Latinos. On the other hand, a federal court outside of California rejected this "three times the rent" income requirement, precisely because of its adverse impact on minority groups.

The message to housing providers from this conflicting case law is that they use stringent rent-to-income ratios at their peril. California law places a heavy burden on housing providers to justify facially neutral policies that have a discriminatory effect.

9. What is the difference between intentional discrimination & discriminatory effect, and how can such illegal practices be identified?

Discriminatory practices essentially fall into two categories. First, the most easily understood type of discrimination is where a housing provider treats someone differently because of the person’s membership in, or association with, a protected group - in other words, where the provider engages in intentional discrimination, such as refusing to rent or negotiate based on an applicant’s race, religion, or place of national origin.

Second, fair housing laws also outlaw "facially-neutral" (i.e. apparently objective) policies and practices that have a discriminatory effect on protected groups. Under this approach, known as "disparate impact," a tenant need only show that a particular housing policy or practice has a significant impact on members of a protected group. Once this showing is made, the housing provider bears the burden of proving some "business justification" for the challenged policy.

10. Can rental applications require the first and the last names of all occupants?

Yes. The housing provider has a right to know who rents the premises and who is responsible for paying rent. Also, being listed on the lease or rental agreement affords a tenant certain property and other legal rights.

11. Can a housing provider reject an application based on personal religious beliefs (e.g. refusal to rent to unmarried couples)?

California law considers such a denial as religious, marital status, or arbitrary discrimination without any relevance to the ability to pay rent. However, a federal court recently ruled that all religious beliefs, in combination with other factors such as freedom of speech, gave a housing provider the right to refuse to rent to an unmarried couple in Alaska. This area of the law will be unsettled until either reversed by the full Court of Appeals or ruled upon by the Supreme Court.

12. Can a housing provider ask whether an applicant is a legal alien or a U.S. citizen?

Generally, a private housing provider can not ask prospective tenants their legal status. Such questions create an appearance of subjective criteria and arbitrary discrimination and are not related to a tenant’s ability to pay rent. However, there are different rules for housing programs administered by public housing authorities, which are required to verify the eligibility of at least one family member no later than the date of the family’s annual reexamination. Also, certain projects funded by the California Department of Housing and Community Development (HCD) are required to verify the eligibility of all adults in an applicant household. The rules regarding immigrant eligibility are complicated, so affected housing providers should seek appropriate advice prior to establishing their verification procedures.

Both federal and California fair housing laws permit discrimination against families with children (and also large ethnic families) in the provision of housing for older adults. However, the housing provider must show that it meets the many federal and California requirements for providing senior housing. With regard to the senior housing exception, the authors of this manual recommend contacting an attorney.

In California, the exemption for senior housing that may discriminate against families with children is generally more restrictive under the California Fair Employment and Housing Act (FEHA) than under federal law.

14. Can a housing provider prevent tenants from inviting guests based on the guest’s race, religion or place of national origin?

No. It would violate the tenant’s right to privacy. Moreover, the U.S. Supreme Court has ruled that white tenants are allowed to challenge a housing provider’s racially discriminatory selection criteria. Fair housing laws broadly define who can claim to have been harmed by discriminatory housing practices, so all persons may claim an interest in living in integrated housing.

15. Can a housing provider allow housing to deteriorate because the majority of tenants are minorities?

15.May a housing provider allow housing to deteriorate because the majority of tenants are minorities? No. For example, a federal court has specifically held that federal fair housing laws prohibit the owner of a housing project from reducing services and allowing the project to deteriorate when the tenant composition changed from predominantly white to predominantly African-American. However, the housing provider may be able to show that the deterioration occurred without intent to discriminate, such as a case where the tenant composition occurred along with a loss in revenue.

16. What actions can a housing provider take if a tenant’s religious activities disturb other tenants?

This is obviously one of the more difficult issues a provider might face. On the one hand, a housing provider can use any existing disturbance of peace, nuisance or noise abatement laws in this situation. On the other hand, the provider’s use of such laws or prohibition of the activity must fall in line with an overall policy that restricts all disturbances. For example, does the tenant who complains about a weekly ritual that involves singing also complain about a third tenant’s weekly use of power tools? Providers must take care not to become enablers of a tenant’s discriminatory actions. And even if there is an apparently objective policy and/or practice regarding "disturbances", a court might inquire into whether or not the policy has a significant impact on a protected group.

Finally, it is important to note that a housing provider could not attempt to segregate the tenants on the basis of their religion (or any other protected characteristics).

17. Can housing providers forbid certain religious decorations and/or alterations to the premises?

Generally, no. A housing provider would have to show a strong and compelling reason to support such prohibitions. However, in the case of substantial alterations, such as those for a small shrine, a housing provider could require that the premises be restored to its original state before the tenant moves.

18. Can a church-affiliated housing provider deny an applicant based on religious preference?

Religious organizations are allowed to give preference to members of the same religion. However, they can only do so if membership in the religion is not restricted on the basis of race, color, or national origin, and the housing is not owned or operated for commercial purposes.

19. Can a housing provider deny occupancy or evict due to a language barrier?

Ability to speak a certain language is not indicative of the ability to pay rent. A housing provider’s denial of occupancy or an eviction due to a language barrier might constitute discrimination, depending on the circumstances. A jury in San Jose did recently side with a housing provider who refused to rent a house to a Latino family because of their failure to speak adequate English. Nevertheless, the issue will probably have to be decided by a court of appeals.

20. Can a housing provider ask a tenant not to cook ethnic foods because the smell offends him or permeates the apartment building?

The housing provider may be violating fair housing laws by such a request. However, if the housing provider or another tenant suffers from allergies to smells or has acute chemical sensitivity, then they may have objective support for the request.

21. Do occupancy limitations discriminate against large ethnic families?

Possibly. What seem to be neutral occupancy rules may actually have a discriminatory effect against ethnic minorities (i.e. Latinos and Asians) and families with children. Studies have shown that Latinos and Asians are more likely than other racial groups to have large families. Therefore, occupancy restrictions on the number of children may prevent minority families from finding housing. Though it is beyond the scope of this manual, we point out here that such an occupancy restriction violates fair housing laws as it discriminates against another protected group – families with children.

In any case, whether it’s familial or racial discrimination, once it is shown to a court that discriminatory effect exists, the housing provider will have to justify use of the policy, such as a compelling business necessity (e.g. sewer system’s limited capacity).

Providers should always look to the model standards (e.g. using square footage of the habitable area of a dwelling rather than the arbitrary number of bedrooms) that are available in the Uniform Housing Code or from the American Public Health Association.

22. Can a housing provider refuse a minority applicant because an existing racist tenant can create potentially dangerous situation?

If a housing provider refuses a minority applicant because an existing racist tenant can create potentially dangerous situation, then the housing provider can be in violation of fair housing laws. The courts may view the housing provider as the enabler of the racist tenant in this situation. The housing provider should instead take necessary steps to prevent any incident from taking place.

23. Can a housing provider tell prospective tenants that no other minorities (or other protected groups) live in the neighborhood?

It is illegal for a housing provider to discourage a person from renting by communicating that such a person would not be comfortable or compatible with existing residents, or assigning a person to a particular section of development on the basis of that person’s race, color, religion, sex, familial status, or national origin. However, a housing provider may answer factually and in good faith an inquiry from prospective tenants regarding the racial composition of a neighborhood.

24. Can advertising indicate any preference?

It is illegal for a housing provider to engage in discriminatory advertising, or to make any oral or written inquiry regarding protected groups.

25. When can a housing provider legally evict a tenant who is not paying rent?

First of all, only a judge can evict a tenant. No housing provider or housing manager can evict a tenant without going to court.

If the problem is as basic as a failure to pay rent, then the housing provider must give the tenant a 3-Day Notice to Pay or Quit. If the tenant fails to pay or leave, then the housing provider may file a "summons and complaint" with the court. In this situation, it is highly unlikely that a court will find illegal discrimination as the housing provider has an important and legitimate reason for the eviction. Many judges will not even allow a discrimination defense. However, if that housing provider has been known to negotiate with other tenants in similar circumstances, then the state or federal enforcement agencies may investigate a possible discriminatory practice.

In California, a housing provider need only provide a 30-Day Notice of Termination in

order to begin the eviction process. The housing provider does not ordinarily have to provide

any reason or justification. However, the housing provider may not harbor an illegal reason for

the termination such as arbitrary discrimination (or retaliation for a tenant’s assertion of rights).

27. What should a tenant do if he or she receives an eviction notice?

The first type of "eviction" notice is the one a tenant receives from the housing provider.

This should be either the 3-Day Notice or the 30-Day Notice. The tenant should immediately contact the housing provider to discuss the notice and make arrangements. They may also call Legal Services of Northern California (LSNC) to learn about their rights (see below).

The second type of eviction notice is from the court and is called a "summons and complaint." The tenant has five days to file an answer in court in order to defend their housing.

If the tenant fails to do this, a judge can automatically evict them. The best thing for a low-income tenant to do if they have received any type of eviction notice is to contact Legal Services of Northern California (1370 West Street in Redding, 241-3565 or (800) 822-9687). These advocates can give low-income people free advice and representation. Although clients may go to court on their own, it will help to talk to an advocate and attend the Eviction Defense Clinic.

If the eviction is related to discrimination, there is a specific box on the two-page Answer form which allows the tenant to argue it as a defense.

28. What should a tenant do in the case of a termination of rental assistance notice from a city or county housing authority?

28.What should a tenant do in the case of termination notice from a city or county housing authority? The housing authority must give recipients thirty days notice of such a termination as well as an opportunity for a fair hearing.

If the tenant does not want to lose the rental assistance, the tenant should immediately contact the housing authority worker who sent the letter. In some cases, the problem can be worked out with the worker (or the worker’s supervisor) and the assistance is reinstated. If it does not appear that the problem can be worked out within a day or two, the tenant should keep in mind that they have ten days to make a written request for the hearing.

In any termination situation, the tenant should contact the housing provider to discuss the present and future relationship of the housing provider-tenant relationship. The housing authority always sends notice of the termination to the housing provider. In order to prevent an eviction on top of the termination, arrangements must be made (which may include paying the full rent).

The law prohibits the housing authority from terminating the benefits before any requested hearing and the hearing decision occur. While tenants/recipients should contact Legal Services of Northern California for assistance in preparation for the hearing, they may begin to prepare by requesting any documentation from the housing authority’s files regarding the case. The housing authority must tell the recipient which laws apply to the termination and what evidence exists to support a termination under those laws.

The housing authorities and their staffs are prohibited from discriminating on the basis of a recipient’s membership in any of the protected groups.

29. Are government housing agencies (i.e. housing authorities) required to provide translators for non-English speaking applicants and/or aid recipients?

The U.S. Department of Housing and Urban Development (HUD) regulations require public housing authorities to translate notices and other documents for non-English speaking applicants and/or aid recipients, if that is feasible.

30. Does "Take one, Take all" rule still apply to housing providers?

"Take one, Take all" rule was used to prevent housing providers who accepted any Section 8 tenant from refusing tenancy to subsequent applicants because of their status as rental subsidy holders. This rule has been recently repealed by the U.S. Congress.

31. Are site-based waiting lists legal under HUD regulations?

Public housing providers in limited circumstances, and with HUD permission, can use site-based waiting lists. A site-based waiting list system is one in which the public housing provider keeps separate waiting lists for each development and allows applicants to choose the developments for which they wish to apply. To qualify, public housing providers must have more than 1250 units. In addition, 90% of the current tenants and 90% of applicants would have to be of the same race or ethnicity.

32. What are the acceptable admission policies for subsidized housing providers?

Every public housing provider must adopt one of two admissions plans. The first merely entails offering suitable vacancies arising at a given time at any location to applicants first in line. The applicant must accept the vacancy offered or be moved to the last place on the applicants’ list.

The second option for the public housing provider is the "two- or three-offer" plan. Under this plan, if there is a suitable unit vacant in more than one location, the applicant is first offered a unit in the project with the most vacancies. If this offer is rejected, than a unit at the complex with the next highest vacancy rate is offered. If three such offers are rejected, then the public housing provider must place the applicant in the last place on the applicants’ list. According to the HUD Handbook (§ 7465.1, 5-7), the two-offer plan uses similar process.

33. What is the HUD approved Affirmative Fair Housing Marketing Plan?

Owners of project-based Section 8 units must develop a HUD-approved Affirmative Fair Housing Marketing Plan, intended to promote equal housing choice for all applicants regardless of race. The plan must include special efforts to attract persons least likely to apply. The plan must also include fair housing and equal opportunity requirements.

34. Can a tenant sue the employees of housing providers if the employees’ discriminatory acts stem from the decisions of their employers?

Yes. Employees and even agents are responsible for their own acts. Liability extends to "any person authorized to perform an action on behalf of another person regarding any matter related to the sale or rental of dwellings." For example, even though a housing provider ordered a housing manager to commit a discriminatory act (e.g. reject an application based on race of family), the housing manager has a choice (albeit a tough one) and must refuse to fulfill the act.

Agents, sued as property managers, are held to the same standards. In a recent unpublished decision, a federal court ruled that an insurance agent was liable for fair housing discrimination for advising the housing provider not to rent to a blind applicant.

35. Can a tenant sue the housing providers for the actions of the employees or agents?

Yes. The general rule in fair housing cases is that a housing provider is legally responsible for the acts, conduct, and statements of its employees and agents. However, if the employee or agent is acting outside the scope of their employment or apparent authority, then the housing provider may not be liable.

In a Northern California federal court case, a housing provider was found to have committed discrimination when it failed to supervise employees and to establish "objective and reviewable rental standards."

36. To whom can tenant complain and what steps are required to resolve the complaint?