This is my second in 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 is 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. The first of the six articles covered race and color; this month I am dealing with discrimination based on National Origin
Discrimination Based on National Origin
The Fair Housing Act prohibits discrimination on the basis of nationality. This applies to both the country where the person being discriminated against comes from and where their ancestors came from. Approximately 12% of current fair housing complaints are based on national origin, and more than half of those involve Hispanic or Latino individuals.
A number of recent court cases illustrate the type of national origin discrimination now being adjudicated.
Lozano v. City of Hazleton, July 2013: In this case, a federal court ruled that the City of Hazleton, PA could not regulate residence based solely on immigration status. A Hazleton city ordinance required that anyone seeking to rent housing in the city had to demonstrate legal immigration status. Persons age 18 and older were required to obtain an “occupancy permit” indicating “proof of legal citizenship or residency.” Landlords faced fines or prison if they permitted violations of the occupancy permit. When the ordinance was challenged, the court held – “Congress has not banned persons who lack lawful status or proper documentation from obtaining rental or any other type of housing in the United States. Hazleton’s decision to impose this distinct, unusual and extraordinary burden…upon aliens’ impermissibly intrudes into the realm of federal authority.”
Long Island Housing Services, Inc. et al v. German-American Settlement League, Inc (GASL), 2015: The GASL owns Siegfried Park in Yaphank, Long Island, where, in the late 1930’s, German-Americans traveled to rally together in support of Nazism. GASL still displays one of the Hitler Youth emblems on top of a flagpole flying the German flag in its clubhouse at Siegfried Park.
Siegfried Park is a 50-home residential community. Since its 1937 incorporation, GASL has excluded non-whites from its membership, recreational programs, and summer homes in favor of new residents with German ancestry.
GASL rents lots on an annual basis to its members who live year-round in Siegfried Park in single-family homes. Community rules restrict homeownership to members who are primarily of “German extraction.” New members must be sponsored by a current member and accepted by a majority of the Board and membership. Membership may be extended under limited circumstances to “other national elements” only if they are sponsored by current members, all of who are white.
GASL prohibits members from renting homes and from publicly advertising homes for sale. Homes may be listed for sale only in the minutes of the GASL Board meetings that are hand-distributed to GASL members.
The suit has been brought on behalf of Philip Kneer and Patricia Flynn-Kneer who are white American citizens of German ancestry. They have owned a home at Siegfried Park since 1999. They claim they have been unable to sell their home due to the GASL racially restrictive policies. The suit was filed in October 2015 and claims discrimination based on race and national origin. GASL has never granted full membership to any non-white individual.
In theory, claims based on national origin discrimination are distinguishable from racial claims. In Patel v. Holley House Motels, 1979, the court stated, “national origin has come to mean the country of an individual’s ancestry, rather than his race or color.”
The Supreme Court ruled in Espinosa v. Farah Mfg. Company, Inc (1973), that the term “national origin” refers to “the country where a person was born, or, more broadly, the country from which his or her ancestors came.”
What these various cases illustrate is that in order to substantiate a national origin discrimination case, a plaintiff must show that the defendant is willing to deal with some countries, but not others.
Under the FHA, plaintiffs who allege discrimination due to being “Hispanic” have sufficiently identified their national origin to state a claim – they do not have to identify the specific “Hispanic” nation from they or they or their ancestors originate. This is also the case for Arabs, persons from the Middle East, and perhaps Muslims.
Either U.S. citizens of a particular national background or citizens of other countries may bring a national origin complaint under the FHA. The FHA does not prohibit discrimination on the basis of U.S. citizenship, unless it has the effect of discriminating against particular national origins, racial minorities, or religions. However, housing discrimination against persons who are not U.S. citizens may be prohibited by other civil rights laws, such as 42 U.S.C. §1981, which finds its’ statutory authority in the Civil Rights Act of 1866. § 1981 of this law provides equal rights under the law for “all persons within the jurisdiction of the United States.”
Discrimination against persons who do not speak English is also not a specific violation of the FHA. In Veles v. Lindow (2000), the court affirmed a jury verdict in favor of a landlord who required at least one adult member of a household to speak fluent English in order to lease a unit. In order to be legitimate, such a policy could not be applied against only certain national origins. Keep in mind that HUD-assisted housing providers must assist persons with limited English proficiency, and a policy of requiring an English speaking member of a household in federally assisted properties will probably not be acceptable.
Dark-skinned plaintiffs, including Mexican-Americans, Pakistanis, and Native Americans, have brought most national origin discrimination cases.
There is often not a clear distinction between what constitutes race vs. national origin discrimination. This may be relevant if the housing involved is exempt from the FHA (such as single family homes if sold or rented by the owner) and the only applicable law is the Civil Rights Act of 1866, which bans racial but not national origin discrimination.
Owners and managers can avoid potential claims of discrimination based on national origin by following some common sense guidelines, including:
- Promote policies to treat everyone equally – regardless of where they come from. Do not stereotype people based on their names, appearance, or clothing. Be sensitive to other cultures. For example, don’t ask applicants why they wear head coverings or garb related to the country from which they or their ancestors originate. In fact, during the applicant selection process, it is not even a good idea to ask what country someone comes from.
- If you’re going to screen for legal residency in the United States, apply the standards consistently. Keep in mind that while discrimination based on citizenship or legal status in the country does not violate the FHA, there may be state or local protections.
- Don’t steer households based on national origin by assuming that people will be more comfortable living near people from the same region.
- Enforce reasonable occupancy standards. Keep in mind that overly restrictive occupancy standards could discriminate against multi-generational households, which are common among certain national groups, including Hispanics, Native-Americans and Asians.
- Finally, watch out for resident relations; one of the most common types of resident-on-resident harassment is based on national origin.