Over the next few months, I intend to do a series of articles focusing in detail on each of the seven characteristics that are protected under the federal Fair Housing Act. These seven characteristics (also known as "Protected Classes") are race, color, national origin, religion, sex, handicap, and familial status. While all housing professionals are certainly familiar with these seven protected characteristics, there are details and specifics regarding each that may be of interest. The purpose of these articles will be to provide some historical context as well as case law to assist those who are in the housing field in their understanding of the law relative to each of the characteristics. This is the first of the six articles, and it focuses on race and color.
Discrimination Based on Race and Color
Since enactment of the Fair Housing Act in 1968, most claims under the Act have been brought on the basis of race. The vast majority of these claims have been brought by or on behalf of African-Americans, although some have been brought by whites that claimed "reverse" discrimination. It should be noted that while "color" is a separate protected characteristic, many of the race based claims either were or could have been brought based on color. One example of a case that could be brought solely based on color would be the example of a light-skinned African American refusing to rent to dark-skinned African Americans.
There is often a "blurring" of race- based cases. In addition to color, many also involve issues relating to national origin - another protected characteristic, which will be specifically discussed in a separate article.
HUD’s most recent nationwide study, which was based on thousands of paired tests in dozens of metropolitan areas in 2000, showed that in rentals, whites were favored over blacks 21.6% of the time and over Hispanics 25.7% of the time. While this study is now 16 years old, there is no question (based on current court cases) that racial discrimination is still a major issue when it comes to housing.
When making a determination as to whether an individual’s rights have been violated based on race, the issue is simply whether the proof is sufficient to show that the defendant did indeed act "because of" race, thereby incurring liability under the Fair Housing Act.
One important exception to this simple test is the situation where a defendant admits discriminating based on race, but defends that decision on the ground that is was necessary to achieve the stable, integrated housing patterns that the Fair Housing Act intended. This ‘benign’ discrimination is the subject of this article.
"Benign" Discrimination
The term "benign" discrimination is often used to describe race-based housing programs that are used to promote integration. In the context of what some would consider to be "reverse" discrimination, the term "benign" means compassionate or benevolent. This is a very controversial concept and has produced a great deal of commentary. The landmark case in this area is United States v. Starrett City Associates (1988). When the Second Circuit Federal Court found that this type of well-meaning discrimination violated the Fair Housing Act, such voluntary race-based programs virtually died, making this issue far less important in recent years.
The case revolved around a private landlord’s efforts to cap the percentage of black and Hispanic residents in order to prevent "white flight." In addition to this case, there were similar attempts by public housing authorities that assigned tenants on racial grounds in order to promote integration in specific properties. Some non-profit housing agencies implemented similar policies.
All these programs had two elements in common: (1) they were designed to promote housing integration, and (2) they did so by purposefully considering race or national origin in the provision of housing or housing related services. While the supporters of the FHA strongly favored proactive integration, the Act itself made any type of intentional discrimination illegal.
There was a significant amount of stress between these two conflicting ideals, i.e., the desire for integration, but the prohibition against discrimination as a way of achieving integration. In Shannon v. HUD (1970), the Third Circuit held that the FHA and other laws prevented HUD from funding a housing project in a minority neighborhood without first considering the impact the development would have on racial concentration in the area.
The Court supported this position by noting that §3608 of the FHA requires an affirmative duty on the part of HUD to promote fair housing. Therefore, federal housing administrators could not ignore the negative impact of racial concentration in minority areas. Following this case, HUD issued a set of regulations designed to comply with the Court’s directive.
Three years later, in Otero v. New York City Housing Authority, the Second Circuit held that a public housing agency could favor white applicants over blacks for units in a particular project if the policy was necessary to avoid "tipping" the balance in favor of one race in the project.
It was during this period (the early 1970s) that HUD issued a set of "Affirmative Fair Housing Marketing Regulations", which required participants in various federal housing programs to make special efforts to reach out to certain racial and ethnic groups. These groups are those that are now referred to as "those least likely to apply" to certain projects. The intention of these plans is not to ‘discriminate,’ but to inform certain groups of housing opportunities that they may not otherwise know of.
The Starrett City case noted above made clear that while not all race conscious methods of promoting integrated housing are barred by the FHA, the statute does not permit "rigid racial quotas of indefinite duration to maintain a fixed level of integration…by restricting minority access."
In summary, it is clear that some very narrow cases of tenant selection using a race-conscious preference might be appropriate by a housing provider that has engaged in past discrimination against racial or national origin minorities. It is also acceptable, even in the absence of past discrimination, that a housing provider provide enhanced opportunities for groups protected by the FHA if its current residents include a disproportionately small percentage of such groups and its plan is narrowly tailored to remedy this imbalance. This is the purpose behind the Affirmative Fair Housing Marketing Plans required of properties with federal assistance. However, quotas are clearly illegal and not permitted under any circumstances.