Fair Housing Act of 1968

Steven J. Gunn

Title VIII of the Civil Rights Act of 1968, commonly known as the Fair Housing Act (P.L. 90-284, 82 Stat. 81), prohibits discrimination in the sale and rental of residential housing. The act was designed to eradicate a wide range of discriminatory practices that, by the late 1960s, had resulted in the pervasive segregation of blacks and other minorities in ghettos in our nation's major cities.

BACKGROUND

The Fair Housing Act was the final piece of civil rights legislation of the 1960s. It was enacted on April 11, 1968, just weeks after the National Advisory Commission on Civil Disorders released its report on racial discrimination and unrest in the United States. President Lyndon B. Johnson appointed the advisory commission in 1967 after a series of riots took place in the ghettos of many of America's largest cities, including Los Angeles, Chicago, Newark, and Detroit. The president asked the commission to investigate the triggers of the riots, the deeper causes of the racial unrest, and potential remedies.

The Commission's report, known as the Kerner Report after its chairman, Illinois governor Otto Kerner, found that the primary cause of racial unrest and violence was black rage against white racism, which the report stated was largely responsible for keeping blacks segregated in ghettos. The report concluded that America was "moving toward two societies, one black, one white—separate and unequal," noting that "white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it." The report highlighted residential segregation as a primary cause of the urban riots of the middle to late 1960s. The Kerner Report recommended sweeping federal initiatives to eliminate housing discrimination and improve housing opportunities for urban blacks.

Congress responded by passing the Fair Housing Act. The act made many of the discriminatory practices that led to racial segregation in America's housing markets illegal. It was, in the words of the Supreme Court inJones v. Alfred H. Mayer Company (1968), a "comprehensive open housing law." The act made it U.S. policy to "provide, within constitutional limitations, for fair housing throughout the United States."

In broad terms, the act prohibited discrimination in the sale and rental of housing, in the provision of services or facilities in connection with the sale or rental of housing, and in mortgage brokerage services and other financing services in connection with the sale or rental of housing. The act also prohibited advertising with discriminatory preferences, and prohibited cities and counties from passing zoning laws to exclude or otherwise discriminate against minorities. In addition, the act empowered the U.S. Department of Housing and Urban Development (HUD) and the U.S. Attorney General to enforce its terms, to assist victims of discrimination, and authorized the federal courts to order the payment of damages to victims of discrimination.

When enacted in 1968, the act prohibited housing discrimination on the basis of race, color, national origin, and religion. It was expanded in 1974 to prohibit discrimination on the basis of sex, and again in 1988 to prohibit discrimination based on disability and familial status. ("Familial status" is a term that includes families with children, pregnant women, and individuals who are in the process of obtaining legal custody of a child.)

SPECIFIC PROHIBITIONS

The Fair Housing Act contains several specific prohibitions against discrimination in the sale or rental of housing:

• • "It is unlawful for any person to refuse to rent or sell a dwelling, refuse to negotiate for the sale or rental of a dwelling, or otherwise make unavailable or deny a dwelling to any person because of race, color, national origin, religion, sex, familial status, or disability." This prevents the classic forms of overt discrimination that were exceedingly common in the decades prior to the act's passage.
• • "It is unlawful for any person to represent to anyone because of race, color, national origin, religion, sex, familial status, or disability that a dwelling is not available for sale, rental, or inspection when the dwelling is in fact so available." This prevents housing providers from giving minorities false information about the availability of housing or steering minorities to non-white neighborhoods.
• • "It is unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling because of race, color, national origin, religion, sex, familial status, or disability." Among other things, this prevents housing providers from charging higher housing prices to minorities than whites.
• • "No one may discriminate against any person in the provision of services or facilities in connection with the sale or rental of a dwelling because of race, color, national origin, religion, sex, familial status, or disability." For example, a landlord may not restrict minorities or families with children to a single portion of a housing complex or restrict their access to recreational facilities available to other tenants.

• • "It is unlawful for any person to make any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, national origin, religion, sex, familial status, or disability." Advertisements may not refer to housing facilities as "white" or as reserved for any other race or color.
• • "It is unlawful, for profit, to persuade any person to sell or rent a dwelling by telling the person that people of a particular race, color, religion, sex, national origin, familial status, or disability are moving into the neighborhood." This practice, known as "blockbusting," was used to induce panic sales in which whites sold their properties and fled to suburban neighborhoods in order to avoid the prospect of living near minorities.

The Fair Housing Act also made it unlawful for mortgage lenders, brokers, and others involved in real estate related transactions to discriminate against minorities:

• • "It is unlawful to refuse to make a loan for the purchase, construction, improvement, repair, or maintenance of a dwelling to any person because of race, color, national origin, religion, sex, familial status, or disability." Among other things, this provision was designed to prohibit "redlining," a practice in which banks refused to make loans to people who live in predominantly minority communities.
• • "It is unlawful to refuse to provide information regarding loans or other types of financial assistance to any person because of race, color, national origin, religion, sex, familial status, or disability. It is unlawful to discriminate against any person because of race, color, national origin, religion, sex, familial status, or disability in the terms and conditions of loans or other types of financial assistance."

In addition, the act made it unlawful for local governments to pass housing laws that in any way discriminated against minorities. A city or township could not pass a law relegating low-income housing projects to predominantly minority neighborhoods, simply because the city expected the residents of the housing projects to be minorities. Similarly, under the act, a city could not pass a zoning ordinance that prohibited the use of private dwellings as places of religious worship.

SPECIAL PROTECTIONS FOR THE DISABLED

In the case of people with disabilities, the Fair Housing Act made it unlawful for any person to discriminate in the sale or rental of a dwelling because the potential buyer or renter had a disability, or because a disabled person intended to reside in the dwelling or happened to be associated with the buyer or renter of a property.

The act also required landlords of certain housing facilities to allow tenants with disabilities to make reasonable access-related modifications to their private living space, as well as to common use spaces, at the tenants' expense. Additionally, the act required landlords to make reasonable accommodations in their policies and operations to give people with disabilities equal opportunities to use and enjoy their housing. For example, a landlord with a "no pets" policy might have to allow an individual who is blind to keep a guide dog in the residence.

The act further required that new multifamily housing with four or more dwelling units must be built to allow access for persons with disabilities. This included accessible entrances and exits, common use areas, and doors, kitchens, and bathrooms built large enough for wheelchairs.

The Fair Housing Act applies to nearly all residential housing in the United States, including mobile home parks, homeless shelters, and summer homes. Certain housing, however, is not covered by the act, including single family houses sold or rented by the owner without a broker and without advertising, owner-occupied residences with no more than four units, dwellings within a private club, and dwellings operated by religious groups in which residency is limited to members of the group.

CONSTITUTIONAL BASIS

The Fair Housing Act is authorized by the Commerce Clause of the U.S. Constitution, which grants Congress the power to regulate activities among the states, including inns and hotels catering to interstate guests. Insofar as the act prohibits racial discrimination, it is also authorized by the Thirteenth Amendment, which provides Congress with the power to abolish all badges and incidents of slavery in the United States. The Supreme Court ruled in Jones v. Alfred H. Mayer Company (1968) that, "when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it ... is a relic of slavery," and can be abolished by Congress. Finally, as applied to housing owned, operated, or subsidized by the federal or state governments, the Fair Housing Act is authorized by the Fifth and Fourteenth Amendments, in which Congress is given the power to pass laws ensuring that the federal and state governments do not deny any person the equal protection of the laws.

See also: Civil Rights acts of 1957, 1964 ; Housing and Urban Development Act of 1965 ; National Housing Act .

BIBLIOGRAPHY

Metcalf, George R. Fair Housing Comes of Age. Westport, CT: Greenwood Press, 1988.

United States National Advisory Commission on Civil Disorders. Report of the National Advisory Commission on Civil Disorders. Washington, DC: U.S. Government Printing Office, 1968.

Fair Housing Act of 1968

Legislation

By: United States Congress

Date: April 11, 1968

Source: U.S. Department of Justice. Fair Housing Act, 1968.

About the Author: The U.S. Congress is the primary law-making branch of the federal government.

INTRODUCTION

Shortly after the assassination of civil rights leader Martin Luther King Jr. (1929–1960), the U.S. Congress passed Title VIII of the Civil Rights Act of 1968. This landmark legislation, known as the Fair Housing Act, codified the principle that access to housing should not be limited or restricted based on an individual's race, gender, religion, or country of origin.

Prior to the passage of this legislation, housing discrimination in the United States was common. Minorities seeking to rent an apartment in a primarily white building were frequently told it had already been rented; those hoping to buy a home in a mostly white neighborhood often found that the seller was not interested in an offer. Advertising for new homes frequently included language suggesting that minorities would not be allowed to purchase a lot in certain neighborhoods. In a segregated nation, housing practices such as these tended to keep housing segregated, which meant that most of the better housing was available only to whites.

Discriminatory practices were frequently employed to maintain housing segregation. Redlining is a practice in which banks refuse to offer mortgages or business loans in certain neighborhoods. Specifically, a bank might refuse to make home construction loans in an inner-city neighborhood, making it difficult or impossible for renters to build their own homes in such areas. Real estate agencies also employed redlining by arbitrarily determining that certain areas of town should not be marketed to certain clients.

The Fair Housing Act prohibited all of these practices. Developers could no longer imply that certain races would be excluded, while landlords were required to rent to tenants regardless of race. Further, any consideration of race or gender in potential real estate buying or selling transactions was proscribed, and public tools of the real estate trade, such as property listing services, were not allowed to discriminate. Ironically, federal legislation dating to 1866 was eventually ruled by the Supreme Court to prohibit most housing discrimination, though this ruling was not handed down until after the Fair Housing Act was in place.

Court challenges to the Fair Housing Act quickly arose. In 1972, the Supreme Court ruled that whites who were denied housing in an area due to action taken under the Fair Housing Act had legal standing to sue. Later decisions stated that the owner of a real estate agency is potentially liable for discrimination practiced by an agent in his employment and that tenant requirements must be applied equally to male and female applicants. Amendments to the Act during the 1970s and 1980s added provisions protecting individuals with physical disabilities, as well as families with children.

PRIMARY SOURCE

Sec. 801. [42 U.S.C. 3601] Declaration of Policy

It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.…

Sec. 804. [42 U.S.C. 3604] Discrimination in sale or rental of housing and other prohibited practices

As made applicable by section 803 of this title and except as exempted by sections 803(b) and 807 of this title, it shall be unlawful—

1. To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
2. To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
3. To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
4. To represent to any person because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.
5. For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, handicap, familial status, or national origin.…

Sec. 805. [42 U.S.C. 3605] Discrimination in Residential Real Estate-Related Transactions

1. In General.—It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.…

Sec. 806. [42 U.S.C. 3606] Discrimination in provision of brokerage services

After December 31, 1968, it shall be unlawful to deny any person access to or membership or participation in any multiple-listing service, real estate brokers' organization or other service, organization, or facility relating to the business of selling or renting dwellings, or to discriminate against him in the terms or conditions of such access, membership, or participation, on account of race, color, religion, sex, handicap, familial status, or national origin.

Sec. 807. [42 U.S.C. 3607] Religious organization or private club exemption

1. Nothing in this subchapter shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin. Nor shall anything in this subchapter prohibit a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members.
2. (1) Nothing in this title limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling. …

Sec. 808. [42 U.S.C. 3608] Administration

1. Authority and responsibility

   The authority and responsibility for administering this Act shall be in the Secretary of Housing and Urban Development.

SIGNIFICANCE

In 2000, the U.S. Department of Housing and Urban Development and the Urban Institute conducted a massive study to assess the level of housing discrimination in American cities. The study used paired testing, in which researchers posing as potential home buyers or renters inquire about a property; for each property, both a white and a nonwhite applicant inquired, and then the results were compared. In twenty cities nationwide, researchers conducted 4,600 paired tests to assess the impact of race on housing availability. The results of these tests were then compared to a similar study conducted in 1989.

The project, called the Housing Discrimination Study (HDS2000), found that access to housing in America is more equitable than in 1989, but that inequities still exist. For example, African American renters were shown fewer available units than white renters in approximately twenty percent of cases, while Hispanics received inferior treatment in about twenty-five percent of cases. The study found that discrimination against black home buyers fell substantially, from twenty-nine percent in 1989 to seventeen percent in 2000, though the study also noted an increase in the practice of geographic steering, in which whites and blacks are shown homes in different neighborhoods.

For most Americans, the mythical American Dream begins with home ownership. For many families, home ownership provides freedom from renting, and home appreciation often serves as the cornerstone of long-term financial security. Better homes frequently bring with them faster appreciation, greater security, and higher quality schools. In almost every measurable sense, better housing raises standards of living. For this reason, the objectives of the Fair Housing Act remain valid decades after its enactment.

FURTHER RESOURCES

Books

Schiller, Bradley R. The Economics of Poverty and Discrimination. Englewood Cliffs, N.J.: Prentice Hall, 2003.

United States Department of Housing and Urban Development. Fair Housing Act Design Manual: A Manual to Assist Designers and Builders in Meeting the Accessibility Requirements of the Fair Housing Act, 2nd ed. Washington, D.C.: Department of Housing and Urban Development, 1998.

Whitley, Bernard E. and Mary E. Kite. The Psychology of Prejudice and Discrimination. Belmont, Calif: Wadsworth Publishing, 2006.

Periodicals

Liptak, Adam. "The Ads Discriminate, but Does the Web?" New York Times (March 5, 2006): 16.

Newman, Kathe and Elvin K. Wyly. "Geographies of Mortgage Market Segmentation: The Case of Essex County, New Jersey." Housing Studies 19 (2004): 53–83.

Nothaft, Frank E. and Vanessa J. Perry. "Do mortgage Rates Vary by Neighborhood? Implications for Loan Pricing and Redlining." Journal of Housing Economics 11 (2002): 244–265.

Web sites

National Fair Housing Council Online, Tennessee Fair Housing Council. "The Fair Housing Act: 35 Years of Evolution." <http://www.fairhousing.com/include/media/pdf/ 35years.pdf> (accessed May 25, 2006).

Urban Institute. "A Foot in the Door? New Evidence on Housing Discrimination." February 4, 2003. <http://www.urban.org/url.cfm?ID=900587> (accessed May 25, 2006).

U.S. Department of Housing and Urban Development. "Fair Housing Laws and Presidential Executive Orders." <http://www.hud.gov/offices/fheo/FHLaws/> (accessed May 25, 2006).

FAIR HOUSING ACT OF 1968

The Fair Housing Act of 1968 (FHA) (42U.S.C.A. §§ 3601-3631) is also known as Title VIII of the civil rights act of 1968. Congress passed the act in an effort to impose a comprehensive solution to the problem of unlawful discrimination in housing based on race, color, sex, national origin, or religion. The Fair Housing Act has become a central feature of modern civil rights enforcement, enabling persons in the protected classes to rent or own residential property in areas that were previously segregated. Thedepartment of housing and urban development (HUD) is charged with enforcement of the act. It issues regulations and institutes investigations into discriminatory housing practices.

The passage of the Fair Housing Act came after the failure of two earlier federal initiatives. A 1962 executive order directed all departments of the executive branch to take appropriate action to prevent discrimination in all federally administered housing programs. The civil rights act of 1964 contained language in Title VI that prohibited housing discrimination in any program receiving federal financial assistance. Although Title VI provided that a recipient of funding who was found in violation could be prevented from continuing receipt of governmental assistance, this sanction was rarely used.

The Fair Housing Act prohibits discriminatory conduct by a variety of legal entities. The act defines "person" to include one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, receivers, and fiduciaries. In addition, municipalities, local government units, cities and federal agencies are subject to the law.

The act explicitly defines a list of prohibited practices involving housing, including sales, rentals, advertising, and financing. Its primary prohibition makes it unlawful to refuse to sell, rent to, or negotiate with any person because of that person's race, color, religion, sex, familial status, handicap, or national origin. The Fair Housing Amendments Act of 1988 added extensive provisions that apply to discrimination against disabled persons and families with children 18 years of age and under.

It is illegal under the Fair Housing Act to discriminate in the sale or rental of a dwelling because of the disability of (1) the buyer or renter, (2) a person who will reside in the dwelling after it is sold or rented, or (3) any person associated with the buyer or renter. It is not illegal, however, to refuse to rent or sell housing to an individual, with or without a disabling condition, whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others. Newly constructed multi-family dwellings must be designed so that the public and common-use portions are accessible to people with disabilities.

The Fair Housing Act also prohibits discriminatory advertising practices in the sale or rental of housing. Advertising may not disclose a "preference, limitation or discrimination" based on any of the protected categories of persons. The media company that runs an offensive advertisement or other statement may be held liable, as may the advertiser. Subtle advertising strategies, such as the selective use of minority-identified media for the marketing of segregated and over-priced housing to minorities, and the use of code words, such as "exclusive" neighborhood, in the text of the realty classified advertisements, violate the act. The law reaches unpublished statements including discriminatory expressions and conduct, such as a landlord's instruction to his rental agent, superintendent, or other employees that they should either not rent to blacks or that they should give a preference to whites or certain ethnic groups.

The law makes it illegal for an owner or his agent to represent to any member of any statutorily protected class that a dwelling is unavailable for inspection, rental, or sale, when, in fact, it actually is available. The act has been found to have been violated by a realty firm that posted "sold" signs on the lawns of a white neighborhood in an attempt to discourage minorities from purchasing houses in the neighborhood.

The Fair Housing Act also sought to end a practice called "blockbusting": the practice by realtors of frightening homeowners by telling them that people who are members of a particular race, religion, or other protected class are moving into their neighborhood and that they should expect a decline in the value of their property. The purpose of this scheme is to get homeowners to sell out at a deflated price. In alleged blockbusting cases, the courts have focused on what was heard, rather than what was said. Even in the absence of wrongful intent by the real estate salesman, or explicit reference to a protected class, liability will attach if the reasonable homeowner believes that the salesman is trading on his assumed fear of minorities to stimulate that homeowner to list his house for sale.

Although the primary focus of the law is to protect prospective renters and buyers of real estate, the Fair Housing Act also protects real estate agents who are members of the protected classes. Real estate brokerages may not set different fees for membership in multiple listing services, and may not deny or limit benefits accruing to members in real estate brokers' organizations. In addition, brokerages may not establish geographic boundaries, office location, or residence requirements for access to, or membership in, any real estate-related organization, based on an individual's membership in any of the statutorily protected categories.

Congress worked to identify all components of the housing industry that might discriminate against persons in the protected classes. This explains why the Fair Housing Act governs the housing financing industry. Banks and financial institutions may not discriminate when financing the purchase, construction, improvement, repair, or maintenance of a house. This section of the act also applies to the selling, brokering, or appraising of residential real estate.

Despite the apparent breadth of the law, Congress did exempt several classes of defendants from coverage. It does not apply to singlefamily homeowners if they sell or rent their homes without the use of a real estate agent or other person who is in the business of selling and renting homes. In addition, the homeowner must not use advertising that indicates a discriminatory preference. This exemption applies to only one sale within a 24-month period. Multiple-family homeowners are exempt if no more than four families reside in a dwelling, including the owner. The act also grants exemptions to religious organizations, private clubs, and senior citizens, subject to some limitations.

The provisions of the Fair Housing Act may be enforced by HUD and through "pattern and practice" lawsuits brought by the attorney general. A person who alleges discrimination may file a complaint with HUD. If the department believes that the claim has merit, the matter will be referred to an administrative law judge for a hearing. The judge is empowered to award actual damages, equitable relief, and attorneys' fees to the prevailing party. The judge also may assess civil penalties against the violators, which can range from $25,000 to $50,000. The judge may not award punitive damages nor require affirmative action of the violator, however. In addition, a private citizen may also file a civil lawsuit in federal court against the alleged violator of the act. Finally, the attorney general may file a civil lawsuit when there is evidence of a pattern or practice by the alleged violator that extends beyond one or two victims. When the attorney general prevails in these types of lawsuits, the act allows the awarding of injunctive relief and monetary damages to the aggrieved party. In addition, the court may assess civil penalties against the violator up to $50,000 for a first violation and up to $100,000 for any subsequent violation.

further readings

The Fair Housing Act of 1968 (FHA) (42 U.S.C.A. §§ 3601-3631).

Russell, Marcia L. 1998. Fair Housing. 2d ed. Chicago, Ill.: Real Estate Education Co.

Sidney, Mara S. 2003. Unfair Housing: How National Policy Shapes Community Action. Lawrence: Univ. Press of Kansas.