“We treat everyone equally because we are required to do so by the Fair Housing Act, so we did nothing wrong.”

I hear this from property managers and leasing agents defending conduct that has resulted in lawsuits and administrative actions alleging housing discrimination. This simplistic formulation most likely came from fair housing training the individual received through their employment in residential real estate management, but the takeaway — treat everyone the same — is woefully incorrect and can lead to liability, fair-minded as it sounds.

The Fair Housing Act (FHA), 42 USC 3601 et seq., is arguably the most powerful and far reaching of the federal civil rights statutes passed in the 1960s,¹ yet it is the least understood and utilized of the civil rights laws — housing discrimination lawsuits account for only 2% of all civil rights lawsuits filed in federal courts.² Michigan’s civil rights acts, the Elliott-Larsen Civil Rights Act (ELCRA)³ and the Persons with Disabilities Civil Rights Act (PDCRA)⁴, also contain housing rights provisions that largely track the federal statute.⁵ This article introduces some features of the Fair Housing Act that make it such a powerful tool to address civil rights violations by requiring more than merely treating everyone equally.

The FHA prohibits discrimination based on race, color, religion, sex, national origin, familial status, or disability.⁶ The law, along with its largely analogous Michigan statutes, is a remedial statute “applicable to a broad range of discriminatory practices and enforceable by a complete arsenal of federal authority.”⁷

As a remedial statute, the FHA encompasses disparate impact claims,⁸ provides for more generous standing than the typical federal guidelines,⁹ broadly defines who may be liable for discrimination to include third-party providers of services such as advertisements and tenant screening,¹⁰ and allows for fee shifting and unlimited punitive damages,¹¹ among other features. One feature of the FHA that can lead defendants to undervalue their liability is that while the economic damages from housing discrimination may be modest, perhaps amounting to only the costs of moving or increased rent somewhere else, the discrimination by itself is the basis of the compensatory injury and is highly valued because of the remedial nature of the statute.¹² It is also often misunderstood that the FHA focuses broadly, not narrowly, on residential dwellings intended to be used as homes and land and portions of buildings intended for residential use.¹³ This can and has included homeless shelters and residential homes for persons with disabilities, such as recovery and sober homes for individuals with substance use disorders, which are often subject to unlawful not-in-my-backyard responses from municipalities.¹⁴

One extraordinary weapon in the arsenal of federal authority created by the FHA is a national network of independent enforcement agencies that receive funding through U.S. Department of Housing and Urban Development along with state funding to provide education on fair housing, process complaints of housing discrimination, and investigate fair housing violations through various means including testers — trained individuals who make inquiries on behalf of themselves and others according to specific guidelines that identify discrimination based on protected characteristics.¹⁵ Testing evidence is particularly potent in identifying discrimination that might otherwise go undetected. An individual whose apartment rental application is denied might not be able to prove by their own experience that they were turned down due to race, disability, or family status, whereas testing pairs where one person is single and the other is single with a small child, for instance, sent to inquire about available units may yield compelling evidence of discrimination based on familial status.

WHAT’S WRONG WITH TREATING EVERYONE EQUALLY?

The FHA antidiscriminatory mandates are far more nuanced than simply “treat everyone the same.” As the U.S. Court of Appeals for the Sixth Circuit explained, “the phrase ‘equal opportunity,’ at least as used in the FHA, is concerned with achieving equal results, not just formal equality.”¹⁶

Because the statute reaches to the “consequences of an action, rather than the actor’s intent,” it provides for disparate impact liability.¹⁷ This means, for instance, that an apartment complex’s blanket rule limiting occupancy to two individuals per bedroom can be shown to cause the consequence of having fewer families with smaller children able to rent because it tends to exclude a couple with an infant from living in a one-bedroom unit or a family of five from living in a two-bedroom unit, while governing occupancy codes only limit occupancy of bedrooms by the size of the room.¹⁸

Second, FHA violations often take the form of failures to provide accommodations or allow for modifications to a residence for persons with disabilities. This area of the law requires far more than treating people equally; rather, it affirmatively requires the housing provider — be it the landlord, homeowner, condominium association, municipality, application screener, or other entity whose conduct is covered by the FHA — to change a policy or exempt an individual with a disability from a rule or policy if doing so may be necessary to afford that person an equal opportunity to use and enjoy a dwelling.¹⁹ Zoning ordinances are included as rules or policies to which exceptions must be granted; this is most typically seen as relief from single-family restrictions so the home can be used as a recovery residence or group facility for individuals with disabilities.²⁰ Service animals and emotional support animals are also considered necessary supports for individuals with disabilities and generally, it will be necessary for a housing provider to make an exception to its rules to allow these animals to ensure the person with the disability has an equal opportunity to enjoy their home.²¹

Third, the FHA’s broad grant of standing to any “aggrieved person” applies not only to an individual on a lease or mortgage application, but roommates, children, and anyone else who has been injured as a result of a discriminatory housing practice or believes a person is about to be injured by a discriminatory housing practice.²² This means neighbors have standing to sue a realtor who engaged in racial steering that affected the stability of their neighborhood²³ and testers can sue under the FHA because the discrimination they uncovered diverted resources and obstructed the mission of organizations fighting for fair housing laws.²⁴

Fourth, it is illegal to discriminate in the terms, conditions, or privileges of sale or rental, or in the provision of services and facilities 42 U.S.C. §§ 3604(b), 3604(f)(2). This section of the FHA has been broadly interpreted to apply to post-acquisition rights,²⁵ meaning that harassment, discriminatory conduct, or failure to provide a reasonable accommodation for an individual already living in the dwelling is also covered by the FHA.

Finally, as with many other civil rights laws, it is also a violation to threaten, harass, or otherwise interfere with an individual’s rights under the act.²⁶ This typically takes the form of a retaliation claim but can also protect a housing providers’ employee who refuses to act in an unlawful way. An example might be if the plaintiff learned their lease had not been renewed because of their race after that resident complained about inferior maintenance services.

Section § 3613(c) of the FHA provides for a broad range of remedies available in a civil lawsuit. The court can order the sale or lease of comparable housing when available or order the defendant to take steps to improve its compliance with the law such as posting fair housing signs and providing training to its staff. Actual damages in fair housing lawsuits can include any out-of-pocket costs incurred in the process such as moving and equipment rentals, mileage and transportation, and the difference in rent if a more expensive apartment was found. The law also allows for compensation for humiliation and mental anguish suffered by the victims of discrimination as well as unlimited punitive damages.²⁷ Finally, this is a fee-shifting statute, meaning that the prevailing party may recover attorneys’ fees and other litigation costs.²⁸

In conclusion, property managers, housing providers, and others working in areas related to residential property should be aware that fair housing rights extend far beyond just treating everyone equally.