Discrimination Claims

General Discrimination Issues

Federal, state, and local laws prohibit discrimination in rental housing. The Federal Fair Housing Act (FHA) prohibits discrimination based upon race, color, national origin, religion, sex, familial status, and disability. State fair housing statutes protect against discrimination based upon race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, familial status, source of income of the applicant, and disability. Some local ordinances (e.g., Portland, and Eugene) protect against discrimination based upon age and sexual orientation.

Landlords should avoid asking any questions on rental applications related to these prohibited areas. The sole exception may be the age of a potential applicant if the rental housing qualifies as a “55 or older” facility under the FHA. The qualifications for “55 or older” housing are very strict, and you should always check with your attorney before asking age-related questions on your rental application.

During a tenancy, landlords must also be careful to avoid anything that might be interpreted as discriminatory. For example, avoid the uneven enforcement of your rules and regulations. Every tenant should be held equally accountable to follow the rules, and appropriate notices should be issued to every tenant that violates the rules to leave no room for any discrimination claims.

Familial Status

A common discrimination claim is “familial status.” This happens when a landlord refuses to rent to tenants who have children, or perhaps to an extended family who will occupy the rental unit. Investigators for the Department of Housing and Urban Development (“HUD”) are particularly vigilant on this issue.

While you are certainly entitled to ask applicants who will be occupying the rental unit, you should carefully frame the question. In Oregon, landlords may adopt an occupancy guideline as long as the guideline is not more restrictive than two people per bedroom and is otherwise “reasonable.” Applicants should simply be informed that occupancy is limited to two people per bedroom, plus one additional person – adding one more person helps demonstrate reasonableness, although not required. Reasonableness is determined on a case-by-case basis and may include consideration of the size of the bedrooms, the overall size of the dwelling unit, and any discriminatory impact the occupancy limit may have.

However, even though state law allows reasonable occupancy limits, be aware that there is no guarantee that federal HUD investigators would defer to state law. While HUD may take Oregon law into consideration when evaluating a discrimination complaint, it is not bound by state law.

Reasonable Accommodation

The FHA also prohibits acts that “discriminate against any person . . . in the provision of services or facilities in connection with [a] dwelling, because of a handicap of that person or any person associated with that person.” The FHA defines discrimination as “a refusal to make reasonable accommodation in its rules, policies, practices, or services, when such accommodations may be necessary to afford a [disabled] person equal opportunity to use and enjoy a dwelling.”

This means that if a tenant requests a reasonable accommodation for his or her disability, the landlord is obligated to provide it unless it causes a financial or administrative burden. A typical example is when a disabled tenant requests a parking space close to his or her apartment to make access to a vehicle easier. In most cases, the landlord would need to accommodate this request. However, not all accommodation requests are “reasonable,” such that each request must be evaluated on its own merits.

Additionally, landlords do not need to provide housing to individuals 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.” One example of this would be a tenant asking to have a caregiver live in the rental unit, but the proposed caregiver has an extensive criminal record that includes recent convictions for assault. Again, though, HUD requires landlords to conduct an individualized assessment for each reasonable accommodation request (i.e., blanket prohibitions based on certain convictions are unacceptable).

HUD Investigations

HUD is the agency charged by the federal government to investigate alleged discrimination claims. If a tenant files a complaint with HUD, you can expect to be contacted by a HUD investigator. The investigator will question you and/or your managers along with the tenant concerning the discrimination claim. The investigator will also review your records.

In the end, the investigator will make a recommendation on whether the claim should be pursued by the agency or not. If, after a thorough investigation, HUD finds no reasonable cause to believe that housing discrimination has occurred or is about to occur, HUD will issue a determination of "no reasonable cause" and close the case. If the investigation produces reasonable cause to believe that discrimination has occurred or is about to occur, HUD will issue a determination of "reasonable cause" and charge the landlord with violating the law.

After HUD issues a charge, a HUD Administrative Law Judge (“ALJ”) will hear the case unless either party elects to have the case heard in federal civil court. If the ALJ finds that housing discrimination has occurred or is about to occur, the ALJ can award a monetary civil penalty in addition to actual damages for the tenant, injunctive or other equitable relief, and attorney fees.

If you are ever the subject of a HUD investigation, it is time to retain an attorney. An experienced landlord-tenant attorney can often lay out the facts and law to a HUD investigator demonstrating that the agency should issue a “no reasonable cause” determination. If not, it is essential to have an attorney make a reasoned and well-planned presentation to an Administrative Law Judge.