I. Fair Housing defined

All home seekers shall have the opportunity to buy or rent any home in any neighborhood of their choice subject only to whether the home is within their financial capabilities.

II. History of Anti-Discrimination and Fair Housing Laws in U.S.A.

III. Massachusetts Law - M.G.L. c. 151B, 804 CMR §§ 1, 2, 3 8, 10 & 12

Primary Massachusetts civil rights laws prohibit all discrimination in sale or rental of all residential and commercial real property. Virtually all residential land, housing accommodations, commercial space, and all land intended to be put to commercial use in the Commonwealth are covered by this law.

IV. Protected Classes

A. What is a "protected class"?

B. Federal law - seven protected classes.

RaceColorNational Origin
ReligionSex/GenderFamilial Status
Disability/Handicap  

 

C. Massachusetts law adds eight additional protected classes.

AgeAncestryChildren
Genetic InformationMarital StatusPublic and/or Rental Assistance
Sexual orientationVeteran/Military StatusGender Identity (2012)

 

V. Fair Housing Laws – EXEMPT AND NON-EXEMPT

Exemptions from Fair Housing laws do exist, but may differ under federal and state law.

A. Broker/Salesperson - NO exemption allowed if licensee involved.

B. Age (protected class in Massachusetts)

1. Inquiry of age illegal.

2. Permissible to determine if an individual has reached age of majority.

3. Approved senior housing exempt

4. Minor or person not reaching age of majority exempt

C. Elderly or Infirmed (Massachusetts law)

Three dwelling units or less when one apartment occupied by elderly or infirmed person for whom presence of children would constitute a hardship - exempt.

D. Mortgage Lenders (Federal & Massachusetts law) exemptions

  1. Inquiry of age to determining credit worthiness
  2. Use of an empirically derived credit system which considers age
  3. Credit life insurance or credit disability insurance to a limited age group
  4. Refusal to grant any mortgage loan to a person under age of majority
  5. Offering more favorable credit terms to specific age groups

E. Owner-Occupied residential

1. Leasing dwelling units in owner-occupied building of four dwelling units or less exempt under federal law.

2. Massachusetts limits maximum exemption to single dwelling unit in an owner-occupied, two-family house.

F. Never Exempted From Fair Housing Laws

  1. Race
  2. Recipient of rental or public assistance (Massachusetts law)
  3. Refusal to rent to family with young child due to presence of lead paint

G. Private Organizations (Federal & Massachusetts law)

Legal to restrict housing to members only

H. Religious Organizations (Federal & Massachusetts law)

May restrict admission or provide preference to persons as to occupancy or employment.

I. Single Dwelling Unit (Massachusetts law)

Temporary leasing, not to exceed one year, by owner of principal residence.

J. Substance Abuse exemption

Massachusetts and federal laws recognize recovery from substance abuse a disability.

K. Federal Law additional exemptions not protected by Fair Housing law

  1. Current users of illegal drugs.
  2. Persons posing direct threat to health or safety of others
  3. Illegal (“undocumented”) aliens.

VI. PROHIBITED DISCRIMINATORY PRACTICES

A. Protected Classes - Refusal to sell, rent or deny housing to anyone included in a protected class

  1. Blockbusting (Federal & Massachusetts law)

C. Children and Lead Paint (Federal & Massachusetts law)

1. Discriminate against children on the basis of existence of lead paint

2. Housing Discrimination Against Persons with Children prohibits discrimination in leasing or renting of accommodations to any person because the person has a child or children who shall occupy the premises with such person.

3. Definition of Children:

  1. Any individual who has not yet attained the age of 18 years
  2. Discrimination against persons with children extends to pregnant women
  3. Discrimination against persons with children shall extend to persons who are in the process of securing legal custody of a child or children.

D. Illegal Actions (Federal & Massachusetts law)

  1. Refusing to rent or sell or negotiate housing;
  2. Representing a dwelling as unavailable when it actually is available;
  3. Providing different lease or sale terms or privileges to different people;
  4. Setting different conditions or privileges for sale or rental of a property;
  5. Denying access to or membership in a facility or service related to the sale or rental of housing;
  6. Imposing different rates and terms on a loan;
  7. Refusing to make a mortgage loan;
  8. Discrimination in appraising property;
  9. Making discriminating inquiries;
  10. 0. Retaliation as a consequence of employing or claiming a protected right;
  11. 1. Discrimination of a prospective tenant based upon public or rental assistance;
  12. 2. Sexual harassment;
  13. 3. Discrimination in advertising
  14. 4. Making notations indicating discriminatory preferences;
  15. 5. Coercion, intimidation, interference with any person in exercise of their rights.
  1. Inquiries (Federal & Massachusetts law)

Inquiries whether a person is included in a protected class, questions that indirectly or innocently elicit whether an applicant is included in a protected class

G. Memberships (Federal & Massachusetts law)

Denying access to membership or participation in multiple listing service, or any trade organization based upon a protected class.

H. Redlining (Federal & Massachusetts law)

I. Steering (Federal & Massachusetts law)

J. Discrimination In Contracts (Federal & Massachusetts law)

K. Uniform Behavior and Procedures (Federal & Massachusetts law)

A landlord, rental agent or any licensee is advised to treat all prospective tenants, customers and clients the same.

L. Occupancy Limits and Standards (Massachusetts law)

A lessor of real property has no legal right to determine maximum number of people to occupy a dwelling unit.

VII. NOT INCLUDED IN ANY PROTECTED CLASS

A. Illegal Drug Use

B. Registered Sex Offenders

C. Smoking, Smokers

D. Students

E. Animals - Only exception “service animals”.

1. Discussion of types and limits of service animals

VIII. HANDICAP/DISABLED CIRCUMSTANCES

NOTE: Terms “handicapped” and “disabled” interchangeable terms.

  1. Inquiry
  2. Inquiry whether an individual has a physical or mental disability prohibited.
  3. Landlord should never attempt to assess disabled person’s capabilities.
  1. New Construction

All residential new construction, three or more dwelling units must provide:

  1. Ten percent of dwelling units maximum for which an owner shall be required to provide disabled accessibility in new construction
  2. Public areas accessible and usable by handicapped persons;
  3. Doorways sufficiently wide for wheelchairs;
  4. All dwelling units must contain:
  5. Accessible route into and through dwelling unit;
  6. Light switches, outlets, thermostats, environmental controls accessible locations;
  7. Reinforcements in bathroom walls to allow for grab bars;
  8. Usable kitchens and bathrooms so wheelchair can maneuver.

C. Reasonable Accommodations and Modifications in Existing Dwelling Units

  1. Landlord required to allow or make “reasonable modifications”
  2. Landlord required to make “reasonable accommodations” in rules, policies, procedures, practices or services
  3. Property owner shall not establish or impose additional rent or other charges for handicap-accessible housing
  4. Landlord cannot refuse renting to disabled person because of special needs

D. Interactive Process - Landlord must engage interactive process with disabled prospective tenant.

E. Service Animals – Signal dog, service animal, seeing eye dog or other animal individually and specifically trained to provide assistance to the disabled cannot be excluded from any housing or any public place.

F. Alcoholism - Alcoholism is considered a disability.

G. HIV/AIDS

IX. ADVERTISING AND MARKETING - No exemptions to discriminatory practice in any type of advertising or marketing.

A. Federal Law

Unlawful to make, print, publish or cause to be made, printed or published in any media, any notice, statement or advertisement, with respect to the sale or rental of a dwelling, that indicates any preference, limitation, or discrimination because of a protected class.

B. Exempt Homeowner (from Fair Housing laws)

Exempt homeowner may not employ discriminating advertising.

C. Determining Violations in Advertising or marketing - how an “ordinary viewer” would interpret.

D. Illegal, Words, Phrases, Symbols and Illustrations

Regulations prohibit use of any words, phrases, symbols, photographs and illustrations that convey dwellings are available or not available to a particular group of persons because of membership in any protected class.

E. Human models in advertising may be viewed as discriminatory.

Exclusive use of young, old, white, black, athletic (non-handicapped), single, Catholic, Jewish or other ethnic or religious group may violate the law.

F. Selective Media

The selective use of media catering to a specific population within an area which may discriminate against another segment of the population is a violation of Fair Housing laws.

  1. Selective geographic advertisements.
  2. Selective use of equal opportunity slogan or logo.
  3. Selective use human models.

X. AMERICAN WITH DISABILITIES ACT (ADA)

ADA integrated into Massachusetts law. Intended to protect qualified persons with disabilities from discrimination in employment, transportation, public accommodations, telecommunications and government services and programs.

  1. “Reasonable Accommodations”

Requires commercial establishments provide “reasonable accommodations” for access by disabled persons and forbids discrimination against them.

B. Government Properties

  1. State and local governments required to follow architectural standards in new construction and alteration of government buildings to allow equal access and use by disabled persons.

C. Public Accommodations

  1. Public must comply with basic nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment of those who are disabled.
  1. The Workplace
    1. Employers, including real estate licensees, must make “reasonable accommodations” to allow disabled persons to effectively perform essential job functions.
  2. Transportation Services
  1. Transportation services by private entities must provide equal access to the disabled.

XI. NOTICES/POSTERS - Both federal and state law provide for posters and the appropriate display thereof.

A. Massachusetts Fair Housing Poster - M.G.L. c. 151B, § 7 - Massachusetts law requires every real estate office and rental office that has public traffic to display this poster in a conspicuous place.

B. Federal Fair Housing Poster - HUD’s written policy a failure to display the Federal Fair Housing poster shall be deemed prima facie evidence of a discriminatory housing practice.

XII. TESTERS or TESTING IS LEGAL - In the case of Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982), the United States Supreme Court ruled testers are legal.

A. Testers do not identify their role.

B. Treating people with identical procedures and standards - Many complaints filed based on way they were treated during application process.

C. All persons have right to complete and accurate information.

D. Testers entitled to damages for humiliation, mental anguish and emotional distress.

E. Testers lack of intent is NOT a defense.

F. With Testers, lying (prevarication) is legal - While lying on an application is thought to be an unpardonable sin, the U.S. Supreme Court justified lying in this context as a powerful means to uncover housing discrimination.

XIII. ENFORCEMENT

HUD (Housing & Urban Development) is the federal agency responsible for enforcing fair housing laws. Massachusetts Commission Against Discrimination (MCAD) is the state agency whose mission is to enforce Massachusetts anti-discrimination laws in employment, housing, public accommodations, credit, mortgage lending and education.

A. History

1. Massachusetts a pioneer in anti-discrimination laws.

2. Mid 1940's Massachusetts established a commission to enforce laws prohibiting discrimination.

3. In 1950 Commission's name changed to the Massachusetts Commission Against Discrimination (MCAD), and its jurisdiction and power enforcement was widely expanded.

B. Laws Enforced by MCAD - MCAD is empowered by statute to enforce the following anti-discrimination laws:

 

Primary civil rights regarding discrimination M.G.L. c. 151B

Public accommodations civil rights M.G.L. c. 272, §§92A, 98, 98A

Sexual harassment M.G.L. c. 151B, § 3A

Maternity leave M.G.L. c. 149, § 105D

Civil rights and education M.G.L. c. 151C

Lead paint M.G.L. c. 111, § 199A

C. MCAD

D. Complaints – Massachusetts - Any person filing a complaint with MCAD for an alleged violation of Massachusetts anti-discriminatory laws must do so within:

1. 300 days after the alleged employee related act of discrimination,

2. 12 months after the alleged housing related act of discrimination

E. Civil penalties in addition to any other sanction, not to exceed

  1. $10,000 for a first offense;
  2. $25,000 for the second offense within a 5-year period;
  3. $50,000 for the third offense within a 7-year period.

E. Complaints - Federal

1. File complaint with HUD

2. File civil action in US District Court

3. Administrative process (Administrative Law Judge or Civil Action)

4. Remedies: civil penalties, damages (actual and/or punitive), and injunctive relief

F. MCAD and Real Estate License Law

MCAD determination of unlawful discriminatory practice is a violation of the real estate license law. Board of Registration of Real Estate Brokers & Salespersons will suspend the licensee for minimum period of 60 days. If second violation within two years then automatic minimum 90-day suspension.

 

* * *

Examples of cases

i. Shapiro v. Cadman Towers, 844 F. Supp. II 6 (E.D.N.Y. 1994)


ii. Devita v. Ferlisi, 15 MPLR 1444 (1993)

iii. Banai v. HUD, 102 F.3d 1203, 1208 (11th Cir. 1997)

iv. Spannv. Colonial Village, Inc.,899 F.2d 24 (D.C. Cir. 1990) 13, 14, 15