Fair Housing and National Origin Discrimination
The Fair Housing Act (FHA) prohibits discrimination in the sale, rental, or financing of dwellings and in other housing related transactions because of race, color, national origin, religion, sex, familial status and disability.
National origin discrimination is illegal under the FHA.
National origin discrimination is treating someone differently in housing related transactions because of the person’s ancestry, ethnicity, birthplace, culture, and language. National origin means the geographic area in which a person was born or from which his ancestors came. The geographic area can be a region within a country or a region that spans multiple countries. National origin discrimination can occur even if a landlord does not know a person’s particular national origin or is mistaken about a person’s national origin.
If a landlord treats someone differently because he or she speaks with an accent or speaks a language other than English, it may constitute national origin discrimination.
Prospective tenants cannot be denied housing opportunities because they or their family are or appear to be from another country or certain ethnic background; because they have a name or accent associated with a national origin group; because they participate in certain customs associated with a national origin group; or because they are married to or associate with people of a certain nation origin.
Discrimination based on national origin can take many forms. A landlord may:
- Advertise a preference, bias, or limitation based on national origin,
- Refuse to accept or deny applications from persons whose primary language is other than English or who speak English with an accent,
- Steer or restrict persons to designated areas of the rental complex or to certain rental units because of national origin,
- Falsely claim there are no available units when potential applicants appear to be from another country,
- Use linguistic profiling to set less favorable terms and conditions for applicants because of national origin,
- Set different rents based upon national origin,
- Require higher security deposit or other fees based on national origin, or
- Require additional identification documents from a person based on their national origin.
Discriminatory rental policies or house rules during tenancy may also violate the FHA. It is discrimination if a landlord selectively enforces policies and practices that unfairly target tenants because of their national origin. An example would be failing to provide the same level of services and amenities to certain tenants due to national origin or by limiting or delaying maintenance and repairs to tenants based on their national origin.
Limited English Proficiency (LEP)
The Department of Housing and Urban Development (HUD) has published Limited English Proficiency (LEP) guidance for landlords as an aid in renting to persons who as a result of national origin do not speak English as their primary language and who have a limited ability to speak, read, write, or understand English. The guidance addresses how the Fair Housing Act would apply to claims of housing discrimination brought by people with limited English proficiency.
People with limited English proficiency are not a protected class under the Fair Housing Act. However, national origin, which is a protected class, has been closely linked to the ability to communicate proficiently in English. The guidance points to statistical data supporting the nexus between limited English proficiency and national origin.
According to the guidance, nearly all LEP persons are limited in English proficiency because they or their family members are from non-English speaking countries. Housing decisions based on limited English proficiency are generally related to national origin or race.
National origin discrimination includes discrimination because an individual has the physical, cultural, or linguistic characteristics of individuals from a foreign geographical area. Courts have found a close link between language requirements and national origin discrimination.
While the guidance notes that a person’s inability to read, write, or speak in English could be associated with a disability, in such circumstances, other statutory protections would apply, such as the landlord’s obligation to provide reasonable accommodations.
The guidance addresses how various legal approaches, such as discriminatory effects and disparate treatment, apply in Fair Housing Act cases in which a housing-related decision – as an example, a landlord’s refusal to rent or renew a lease – involves a person’s limited ability to speak, read, write, or understand English.
Landlords are therefore prohibited from using an applicant’s or a tenant’s limited English proficiency in a selective manner as basis for discriminatory actions or as an excuse or pretext for intentional housing discrimination. The law also prohibits landlords from using limited English proficiency in a way that causes an unjustified discriminatory effect.
Fair Housing and Immigration Status
The U.S. Department of Housing and Urban Development (HUD) has published guidance regarding the Fair Housing Act and immigration status.
Every person in the United States is protected by the Fair Housing Act. A person’s immigration status does not affect their federal fair housing rights or responsibilities. National origin discrimination is illegal regardless of the victim’s immigration status.
The Fair Housing Act applies even if local ordinance or state law fair housing protections exist.
California law specifically addresses the issue of immigration status by prohibiting landlords from inquiring about immigration status. California law prohibits a “landlord or any agent of the landlord” from inquiring about the immigration or citizenship status (or compelling a statement about immigration or citizenship status) of a “tenant, prospective tenant, occupant, or prospective occupant of residential rental property.”
New York City Code prohibits discrimination in housing against persons of actual or perceived immigration status or national origin Persons have rights regardless of immigration status including:
- It is illegal for landlords or other housing providers to refuse to sell, rent, or lease housing—or to do so with different terms, conditions, or privileges—because of someone’s immigration status or national origin.
- It is illegal for landlords or other housing providers to harass tenants because of a tenant’s immigration status or national origin.
- It is illegal for landlords or other housing providers to refuse to do repairs or to provide substandard housing conditions because of a tenant’s immigration status or national origin.
Fair Housing Act Protection of Rights
It is illegal to coerce, intimidate, threaten, or interfere with a person’s exercise or enjoyment of right granted or protected by the Fair Housing Act. This includes threats to report a person to U.S. Immigration and Customs Enforcement (ICE) if the person reports housing discrimination to HUD. HUD does not ask about immigration status when investigating claims of housing discrimination.
Immigration Documents
HUD guidance addresses the question of whether landlords can ask for immigration documents. Landlords are allowed to request documentation and conduct inquiries to determine whether a potential renter meets the criteria for rental, so long as this same procedures is applied to all potential renters. Landlords can request identity documents and conduct credit screening to ensure the potential renter’s ability to pay rent. However a person’s ability to pay rent or qualify as a tenant is not necessarily connected to his immigration status.
Procedures to screen potential renters and existing tenants for immigration status may violate the Fair Housing Act prohibitions on national origin discrimination. Housing complaints alleging landlord inquiries into immigration status will be investigated by HUD to determine if national origin discrimination may have occurred.
Rental policies must be consistent. If information is requested from one person, the same information must be requested from all applicants and tenants. Potential renters and tenants cannot be treated differently because of national origin.
Identification Documents
Landlords should be aware that requiring all applicants to furnish their Social Security number may disproportionately exclude prospective tenants because of national origin. While a Social Security number has traditionally been requested to conduct credit and background screening, there are alternate methods to verify identity and conduct tenant screenings. An Individual Taxpayer Number (ITIN) or other verification method in lieu of a social security number could be used for tenant screenings.
An Individual Taxpayer Identification Number (ITIN) is a tax processing number issued by the Internal Revenue Service to individuals who are required to have a U.S. taxpayer identification number but who do not have, and are not eligible to obtain, a Social Security number (SSN. They are issued regardless of immigration status.
Additional Information
This article is for discussion only. Landlords are advised to conduct due diligence regarding national origin protections under the Fair Housing Act and seek appropriate legal counsel as required.
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