The federal Fair Housing Act (FHA) (42 U.S. Code § § 3601-3619 and 3631) aims to ensure that rental applicants, prospective tenants (prospects) and current tenants don't get treated differently because of certain characteristics or attributes they have. A group of people who share such an identified characteristic is collectively known as a "protected class."
To avoid fair housing violations and costly liability, landlords need to know what a protected class is, as well what characteristics constitute a protected class under the FHA. For example, rejecting an applicant because he's from South America is illegal because the FHA bans discrimination based on national origin. But refusing to rent to applicants who have Section 8 vouchers won't violate the FHA because source of income isn't a protected class under federal law.
The FHA prohibits discrimination on the basis of seven protected classes:
“Familial status” refers to the presence of at least one child under 18 years old, and also protects prospects and tenants who are pregnant or in the process of adopting a child. You may legally turn away families with children, however, if your rental property qualifies as senior housing.
Be aware that “disability” has a specific definition under the FHA that includes physical impairments, mental impairments, and chronic alcoholism (being addressed through a recovery program), among other things. Prospects and tenants who fit the definition are entitled to reasonable accommodations to policies (such as letting a tenant keep a guide dog despite a no-pets rule) as well as reasonable modifications to physical structures at your property for increased accessibility (such as installing grab bars in a bathroom).
When it comes to protected classes and the FHA, the key to compliance is whether a landlord treats prospects and tenants differently because of the underlying characteristic that the prospects and tenants have. Landlords should establish standard tenant screening and selection processes, and apply them equally and consistently. Landlords can legally reject applicants, evict tenants, and take other adverse action against people who may be protected under the FHA if the reasons are legitimate and unrelated to any protected class.
For example, a landlord who rejects an applicant because she's female and Hindu is violating the FHA's ban on discrimination based on sex and religion. But a landlord who rejects a female Hindu applicant because she has poor credit or can't afford the rent isn't violating the FHA—assuming the landlord applies the same screening requirements to all applicants.
Not only can a landlord legally take such adverse action, but a landlord should do so to avoid claims of reverse discrimination. For example, say a landlord accepts a female Hindu applicant despite her not meeting the property's tenant screening requirements, out of fear that she'll bring a discrimination claim. Taking such action actually means the landlord is discriminating in favor of the applicant (and against other applicants) based on two protected classes (sex and religion), which is illegal under the FHA.
Many states, counties, and cities have fair housing laws that prohibit forms of discrimination not barred by the FHA—such as source of income discrimination, marital status, or sexual orientation. So, for example, if a tenant claimed you discriminated against them based on marital status, the tenant could not bring a complaint under the FHA, since marital status is not a protected class under the FHA. However, if your state’s law prohibited marital status discrimination, the tenant could file a state law claim against you. As a landlord, you should consider researching your state’s antidiscrimination laws to learn more about protected classes where you live.
If you have any questions about fair housing laws and how they relate to your tenant screening procedures or other business practices, speak with a local landlord-tenant attorney. A knowledgeable attorney will be able to give you advice tailored to the laws in your area and help ensure that you are doing everything you can to treat rental applicants and tenants fairly.
The Rental Applications and Tenant Screening section of Nolo.com includes several useful articles on how to legally choose tenants and avoid fair housing complaints and lawsuits. Also, check out Every Landlord’s Legal Guide, by Marcia Stewart, Ralph Warner and Janet Portman (Nolo) for detailed advice on housing discrimination and how to avoid fair housing lawsuits.