Fair Housing 2021
Each April the U.S. Department of Housing and Urban Development (HUD), together with local communities and fair housing organizations, commemorate Fair Housing Month by hosting community events to highlight HUD’s fair housing enforcement efforts, enhance public awareness of their fair housing rights, and emphasize the importance of ending housing discrimination.
In remarks by the HUD Secretary, “Fair Housing Month is a time to recommit to our nation’s obligation to ensure that everyone has equal access to safe, affordable housing,” This year’s theme, “Fair Housing: More Than Just Words” emphasizes the Biden Administration’s commitment to advancing equity in housing and the importance of fair housing rights to secure equal access to housing opportunity.
Fair Housing Annual Report
The Fair Housing Act prohibits discrimination based on race, color, national origin, religion, sex, disability, and familial status in the sale or rental of a dwelling and in other housing-related transactions. HUD’s Office of Fair Housing and Equal Opportunity (FHEO) published the latest Fiscal Year (FY) 2018/2019 Annual Report on Fair Housing. The Annual Report shows HUD and its Fair Housing Assistance Program partner agencies received more than 7,700 complaints alleging discrimination based on one or more of the protected classes. Disability continues to be the top allegation of discrimination followed by race as the next most common complaint.
Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
On January 20, 2021, President Biden issued an executive order directing all federal agencies to interpret protections against discrimination based on sex to include discrimination based on sexual orientation, gender identity, and gender expression. Further, the Executive Order directs all federal agencies to review and revise all existing orders, regulations, guidance documents, policies, programs, or other agency actions administered under any statute or regulation that prohibits sex discrimination for inconsistency with the Executive Order by April 30, 2021.
The Executive Order 13988 cites the Supreme Court’s 2020 decision in Bostock v. Clayton County, which found that the prohibition on discrimination “because of sex” in Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity.
Section 1. Policy of the Executive Order states: “All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.” Discrimination on the basis of gender identity or sexual orientation manifests differently for different individuals, and it often overlaps with other forms of prohibited discrimination, including discrimination on the basis of race or disability. It is the policy…to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation. It is also the policy…to address overlapping forms of discrimination.”
State and Municipality Anti-discrimination Laws
Many states, cities, and counties have enacted anti-discrimination laws banning housing discrimination on the basis of sexual orientation and gender identity. Landlord fair housing compliance should always be to those fair housing laws that provide the greatest protections against discrimination.
HUD Implementation of Executive Order 13988 on the Enforcement of the Fair Housing Act
On February 11, 2021 HUD announced that it will administer and enforce the Fair Housing Act to prohibit discrimination on the basis of sexual orientation and gender identity. The following information is taken directly from HUD No. 21-021 memo “HUD to /enforce Fair Housing Act to Prohibit /discrimination on the Basis of Sexual Orientation and Gender Identity.”
HUD’s Office of Fair Housing and Equal Opportunity (FHEO) issued the memorandum stating that HUD interprets the Fair Housing Act to bar discrimination on the basis of sexual orientation and gender identity and directing HUD offices and recipients of HUD funds to enforce the Act accordingly.
The memorandum relies on the Department’s legal conclusion that the Fair Housing Act’s sex discrimination provisions are comparable in text and purpose to those of Title VII of the Civil Rights Act, which bars sex discrimination in the workplace.
In Bostock v Clayton County, the Supreme Court held that workplace prohibitions on sex discrimination include discrimination because of sexual orientation and gender identity. HUD has now determined that the Fair Housing Act’s prohibition on sex discrimination in housing likewise includes discrimination on the basis of sexual orientation and gender identity.
The memorandum directs actions by the FHEO and HUD-funded fair housing partners to enforce the Fair Housing Act to prohibit discrimination on the basis of gender identity or sexual orientation. Specifically, the memorandum directs the following:
- HUD will accept and investigate all jurisdictional complaints of sex discrimination, including discrimination because of gender identity or sexual orientation, and enforce the Fair Housing Act where it finds such discrimination occurred.
- HUD will conduct all activities involving the application, interpretation, and enforcement of the Fair Housing Act’s prohibition on sex discrimination consistent with its conclusion that such discrimination includes discrimination because of sexual orientation and gender identity.
- State and local jurisdictions funded by HUD’s Fair Housing Assistance Program (FHAP) that enforce the Fair Housing Act through their HUD-certified substantially equivalent laws will be required to administer those laws to prohibit discrimination because of gender identity and sexual orientation.
- Organizations and agencies that receive grants through the Department’s Fair Housing Initiative Program (FHIP) must carry out their funded activities to also prevent and combat discrimination because of sexual orientation and gender identity.
- FHEO Regional Offices, FHAP agencies, and FHIP grantees are instructed to review, within 30 days, all records of allegations (inquiries, complaints, phone logs, etc.) received since January 20, 2020, and notify persons who alleged discrimination because of gender identity or sexual orientation that their claims may be timely and jurisdictional for filing under this memorandum.
Housing Discrimination Claims
Under the new guidance, HUD said it will be able to investigate complaints made under the Fair Housing Act of 1968 which prohibits discrimination because of race, color, national origin, religion, sex, familial status, and disability that are made by persons who alleged discrimination because of gender identity or sexual orientation.
Persons who believe they have experienced housing discrimination may be able to pursue a claim under all or some of the following:
- The Fair Housing Act, if they have experienced discrimination under one of the Act’s seven protected classes;
- HUD’s Equal Access Rule, providing protection against sexual orientation and gender identity discrimination in HUD-funded programs; or
- State and local anti-discrimination laws that specifically include sexual orientation and/or gender identity as protected classes.
Housing discrimination may include discrimination by a real estate professional, mortgage professional, rental property owner, property manager, or other persons involved in the housing process.
Claims can be made by contacting HUD’s Office of Fair Housing and Equal Opportunity or submitted online at hud.gov./fairhousing.
HUD Publishes 2021 Civil Penalty Amounts for Fair Housing Violations
In March 2021, HUD published new inflation-adjusted civil penalty amounts for individuals or entities that have been found to have violated housing-related laws, including the federal Fair Housing Act. The new civil penalty amounts will apply to violations of the Fair Housing Act that occur on or after April 15, 2021.
Under these revised amounts, an individual or entity found to have violated the Fair Housing Act can be assessed a maximum civil penalty of $21,663 for his or her first violation of the Act. Respondents who had violated the Fair Housing Act in the previous 5 years could be fined a maximum of $54,157, and respondents who had violated the Act two or more times in the previous 7 years could be fined a maximum of $108,315.
These civil penalty amounts are in addition to actual damages and attorney’s fees and costs that may be awarded to someone who has experienced housing discrimination