Discrimination Based on Religion
In this third installment in my series on the Fair Housing Act protected categories, I want to review some of the issues relevant to discrimination based on religion.
Religion is one of the characteristics that were originally protected in the 1968 Act. The Act does include an exemption for religious based organizations. However, unlike Title VII employment protections, the Fair Housing Act (FHA) does not require that housing providers “reasonably accommodate” religious beliefs, observances, or practices.
The percentage of fair housing complaints relating to religion is fairly small, never having exceeded 5% on an annual basis. In fact, a large percentage of the fair housing complaints based on religion have involved disputes in the New York City area between Jewish persons and other groups. A number of these (and other) cases involved challenges to municipal land-use restrictions that allegedly discriminated against the plaintiff’s religion.
More traditional types of fair housing cases have been brought against owners and operators of multifamily properties. In these cases, owners and property managers have been accused of religious discrimination against housing applicants or residents. An example of such as case is Snyder v. Bazargani, 2007; in this case, a jury upheld a verdict against landlords who first inquired about the plaintiffs religion and then refused to rent them a unit because they were Jewish. Another case out of Newport News, Va. was Lotz Realty Company, Inc. v. U.S. Department of Housing & Urban Development (1983). In this case, the Anti-Defamation League prevailed in its challenge to a realtor’s use of Christian symbols and slogans in its housing ads. With regard to the use of religious words, symbols, and slogans in housing ads, HUD has opined that such ads may violate the FHA if it conveys a discriminatory preference or limitation by using such words as “Protestant,” “Christian,” or “Jew.” For example, an ad stating “Christian home for rent,” could be deemed discriminatory. Harassment against religious minorities has also been alleged in some cases, such as Halprin v. Prairie Single Family Homes of Dearborn Park Association (2004). The court upheld a claim by condominium owners against the Condo Association and its board members for harassment of the plaintiff couple because the husband was Jewish. This case also upheld a finding that neighbors had discriminated against the couple.
Exemptions from the Religious Discrimination Provisions of the FHA
The primary exemption in the Act relative to religious discrimination applies to religious organizations. Such organizations may discriminate in favor of members of the religion in the operation of “noncommercial” dwellings (i.e., operated without a profit motive) as long as membership in the religion is not based on race, color, or national origin. However, Congress has noted that the Civil Rights Act of 1866, which prohibits any discrimination based on race, covers discrimination against Jews.
As is evidenced by current legislative efforts in a number of states, religion is often defended with regard to discrimination against certain groups. There have been a series of cases in which landlords have argued that there religious beliefs require them to discriminate against unmarried couples or other classes of tenants who are protected by state and local antidiscrimination laws. In 1994, for example, in Attorney General v. Desilets, the Massachusetts Supreme Judicial Court held that a provision of the state constitution guaranteeing freedom of religion protected landlords who had refused, in violation of the state’s antidiscrimination law, to rent to an unmarried couple. In this case, the landlords held what the Court deemed to be a sincere belief that their rental practices had to conform to their religious beliefs, which included not facilitating sinful conduct such as pre-marital sex. Under these circumstances, the court held, the landlords should prevail unless the state could prove that it had a “compelling” interest in eliminating marital status discrimination. This would be difficult since it is generally accepted that marital status discrimination is not as intense a concern as is discrimination based on certain other classifications, such as race, color, religion, sex, and national origin. Based on this reasoning, a landlord refusing to rent to a married couple of the same sex would have a more difficult time prevailing, since the discrimination would be at least partially based on sex (assuming the landlord would rent to heterosexual married couples).
The bottom line for landlords is that the intent of the Fair Housing Act was (and is) to ensure that all persons have access to safe, decent, and sanitary housing where they can exercise their right to worship or not to worship as they choose. Owners who choose to operate housing in the commercial marketplace should not use any religious test (either their own or an applicants) as a condition for housing.