Housing discrimination is illegal. The Fair Housing Act, which is actually Title VIII of the Civil Rights Act of 1968, and its 1988 amendments, prohibits discrimination in the sale, rental or advertising of housing. The Fair Housing Act protects anyone from being denied equal housing opportunity based upon:
Collectively, these categories are known as "protected classes". In addition to the seven federal protected classes, New York State Human Rights Law protects the following additional classes from discrimination:
Many local governments have also enacted nondiscrimination ordinances that protect additional classes (e.g. source of income).
The rules pertaining to nondiscrimination in rental housing encompass marketing and advertising programs, apartment showing and screening procedures and acceptance and subsequent treatment of tenants in protected classes. Generally, this means that questions concerning protected status classifications cannot be asked of an applicant, except when the law specifically allows inquiry.
The following is a general guideline concerning what is and is not legal to ask an applicant for housing:
|Race or Color||None||Complexion or color of skin, race.
Request any document that identifies race or color (including photographs)
|Religion or Creed||None||Applicant must not be asked his/her religious denomination or affiliation; parish or church, or religious holidays observed.
Housing providers must not ask or volunteer information orally or through ads, about the religious make up of a neighborhood or the location of a parish, church or synagogue.
Request any document that reveals religion or creed.
|Gender (Sex)||None||Any inquiry as to gender.
Request any document that specifies or reveals gender.
|Age||Are you at least 18/55/62 years of age?||How old are you? What is your date of birth? What are the ages of your children?
Request any document that specifies or reveals birth date. (except as legally necessary to establish age eligibility)
|Marital Status||None||Do you wish to be addressed as Miss, Mrs. or Ms.?
Are you Married? Single? Divorced? Separated?
Inquiry about name or other information about spouse or mate.
Request any document that specifies or reveals marital status.
|Disability||Do you or anyone who will reside with you have special needs?||Have you ever been treated for any of the following diseases...?
Why do you have a special need? Do you have a disability?
Do you have or have you ever had a drug or alcohol problem?
Request any document that specifies the disability. (except as legally necessary to establish the existence of a disability)
|Sexual Orientation||None||Are you Gay?|
|National Origin||None||Do you have a "Green Card?"
Date applicant acquired citizenship?
|Familial Status||How many people will reside with you?||Require the applicant to bring the entire family to an interview or have the entire family present at a home visit.
Do you intend to have children? Will children be living in the unit? Age and sex of children?
Ask for photos of any or all family members prior to providing occupancy.
|Lawful Occupation||Are you legally employed?
Salary and length of employment.
|Inquiries about title or duties.|
|Education||None||What grade did you complete?
Inquiries or documents that reveal applicant's/occupant's academic, vocational or professional education.
|Photographs||Request for photo once applicant becomes tenant or homeowner for security purposes.||Requirement or option to submit photo of persons who will reside in the apartment/home prior to granting occupancy.|
|Organizations||None||Require a list of all clubs, societies and lodges to which applicant/occupant or spouse or other close relative is a member.|
When dealing with applicants, ask yourself these questions:
Be sure to use the same technique and questions for all applicants:
In addition, you cannot refuse or fail to:
The selection process should be explained to each applicant and they should be given an opportunity to review the project's tenant selection procedures. Further, whatever reason is used to reject or accept one applicant must be used to reject or accept another under the same circumstances.
Senior Housing Exemptions
While the Fair Housing Act prohibits discrimination based upon familial status (families with children under the age of 18), the 1988 amendments added specific exemptions to the familial status protections, recognizing a need and a desire for senior citizens to live in retirement style communities.
Two categories of exemption exist under 24 CFR Part 100. The first, known as the "housing for persons 55 years of age or older" exemption waives familial status protections for housing that is "intended and operated" for persons 55 years of age or older and the housing facility or community is operated under a common set of rules and regulations. (A portion of a single building does not qualify as a housing facility or community.) In order to maintain the exemption, a housing facility or community must ensure that at least 80% of its units are occupied by households where at least one person is 55 years of age or older. There is no requirement that the remaining 20% of the units be occupied by persons under the age of 55, nor is there a requirement that those units be used only for households where at least one member is 55 years of age or older. Communities may decline to permit any persons under the age of 55, may require that 100% of the units have at least one occupant who is 55 years of age or older or may permit up to 20% of the units to be occupied by persons who are younger than 55 years of age, or set whatever requirements they desire, as long as "at least 80%" of the units are occupied by households with at least one member that is 55 years of age or older.
The second exemption is referred to as the "62 or over housing" exemption. The provisions regarding familial status do not apply to housing "intended for and solely occupied by persons 62 years of age or older." Under this exemption, all members of the household must be 62 years of age or older and 100% of the units in the community must satisfy the exemption criteria (except for facility employees and their families who are employed in management or maintenance positions within the community).
With respect to housing for the elderly, NYS Human Rights Law was amended in 1999 to conform to the federal regulation for "housing intended and operated" for occupancy by persons 55 years of age or older.
Last updated on 01/24/07