The Fair Housing Act prohibits discrimination in transactions involving “dwellings.”1  “Dwelling” includes any building occupied or intended to be occupied as a residence. In addition to houses and apartments, courts have held the following to be dwellings: mobile home parks,2  trailer courts,3  condominiums,4  summer homes,5  motels providing long-term shelter to homeless,6  homes for AIDS patients,7  group homes,8  shelters and transitional housing,9  and timeshares.10  Boarding houses, dormitories, and all other facilities whose occupants remain for more than a brief period are presumably covered as “dwellings” under the Act.

• 142 U.S.C. § 3602(b).
• 2United States v. Warwick Mobile Home Estates, 537 F.2d 1148 (4th Cir. 1976).
• 3Stewart v. Furton, 774 F.2d 706 (6th Cir. 1985).
• 4Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979).
• 5United States v. Columbus Country Club, 915 F.2d 877 (3d Cir. 1990).
• 6Red Bull Assocs. v. Best W. Int’l, 686 F. Supp. 447 (S.D. N.Y. 1988). But see Johnson v. Dixon, 786 F. Supp. 1 (D.D.C. 1991).
• 7Baxter v. City of Belleville, 720 F. Supp. 720 (S.D. Ill. 1989).
• 8H.R. Rep. No. 100-711, at 24 (1988).
• 9Doe v. City of Butler, 892 F. 2d 315 (3d Cir. 1989).
• 10La. ACORN Fair Hous. v. Quarter House, 952 F. Supp. 352 (E.D. La. 1997).

Certain dwellings are exempt from FHA coverage. The most common exemption is an owner’s sale or rental of a single-family home, provided that the owner does not own more than 3 single-family homes.1  Also, the exemption has numerous exceptions,2  including that a four-plex is not a ‘‘single family home.”3  Even if the owner is exempt, the owner’s broker is not if the broker’s conduct violates the FHA.

Other exempt dwellings include owner-occupied buildings with no more than 4 units,4  religious organizations’ noncommercial dwellings, and private clubs’ incidental noncommercial lodgings. Housing for “older persons” is exempt from the FHA for purposes of the prohibition against discrimination on the basis of familial status, but not on other grounds.5

A defendant must plead and prove an FHA exemption as an affirmative defense.6  Exemptions are strictly construed.7  A landlord exempted under § 3603 may still be liable for racial discrimination under 42 U.S.C. §§ 1981–1982.

• 142 U.S.C. § 3603(b)(1). The exemption does not apply to discriminatory advertising. 42 U.S.C. §§ 3603(b), 3604(c).
• 2See, e.g., Dillon v. AFBIC Dev., 597 F.2d 556, 561 (5th Cir. 1979).
• 3Lincoln v. Case, 340 F.3d 283 (5th Cir. 2003).
• 442 U.S.C. § 3603(b)(2).
• 542 U.S.C. § 3607(b)(2)–(3).
• 6United States v. Columbus Country Club, 915 F. 2d 877, 885 (3d Cir. 1990).
• 7Singleton v. Gendason, 545 F. 2d 1224, 1227 (9th Cir. 1976).

Examples of familial status discrimination include policies that unreasonably restrict the number of people per bedroom,1  segregating families with children within a complex,2  prohibiting children from playing in common areas,3  refusing to rent out of concern that the property would pose danger to children,4  and making statements that indicate a preference or discrimination based on familial status.5

There are two major situations in which conduct that would otherwise discriminate on the basis of familial status will not violate the FHA. First, housing for “older persons” is exempted from the FHA prohibitions against familial status discrimination.6  Second, 42 U.S.C. § 3607(b)(1) allows providers to comply with “reasonable” local, state, or federal occupancy standards. HUD has declined to define “reasonable.” A “totality of circumstances” analysis is generally applied to an occupancy standard. For instance, an apartment complex’s one-person/one-bedroom, two-person/two-bedroom restrictions have been held to violate the FHA.7  HUD’s rule of thumb is that occupancy limits of two persons per bedroom are presumptively reasonable, but HUD has also provided guidance on factors that may warrant deviation from the two person per bedroom standard.8

• 1Glover v. Crestwood Lake Section 1 Holding Corp., 746 F. Supp. 301 (S.D.N.Y. 1990); Fair Hous. Council v. Ayres, No. SACV 93-149, 1994 WL 278535 (C.D. Cal. June 16, 1994); Hillcroft Partners v. Comm’n on Hum. Rts., 533 A.2d 852 (Conn. 1987).
• 224 C.F.R. 100.70(c)(4).
• 324 C.F.R. 100.65(b)(4).
• 4United States v. Grishman, 818 F. Supp. 21 (D. Me. 1993).
• 5White v. HUD, 475 F.3d 898 (7th Cir. 2007).
• 642 U.S.C. § 3607(b)(1)–(3). Detailed HUD regulations on this exemption are found at 24 C.F.R. § 100.300.
• 7United States v. Badgett, 976 F.2d 1176 (8th Cir. 1992).
• 863 Fed. Reg. 70,256 (Dec. 18, 1998).

For FHA purposes, a disability is (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of having such impairment; or (3) being regarded as having such an impairment. This definition is virtually identical to that under § 504 of the Rehabilitation Act of 1973. Congress intended interpretations that are consistent with interpretation under § 504.1  The disability discrimination provisions also protect persons residing or associating with people with disabilities, e.g., parents, children, spouses, roommates, etc. Current illegal users of alcohol or a controlled substance are excepted from the definition of disability; alcoholism and substance abuse disorders are considered disabilities if not accompanied by current illegal use.2

The constitutionality of the FHA’s prohibition of disability discrimination has been upheld by the courts.3  Examples of disability discrimination include: inquiries about disability or nature/severity;4  eviction of tenant with mental disability without making reasonable efforts to accommodate;5  eviction of tenant with disability for criminal activity or property damage without individualized assessment of whether reasonable accommodations would acceptably minimize risk to others;6  eviction for fire hazards without helping tenant get rid of problem;7  eviction of elderly tenants or tenants with disabilities for poor housekeeping;8  no pets rule as to tenant with mental disabilities who needed companionship of dog;9  refusal to waive guest fees for medical care required by tenant with disabilities;10  refusal to give a co-op resident with disabilities a ground floor parking space;11  HUD’s refusal to transfer Section 8 tenants with disabilities to accessible housing;12  and refusal to allow an indigent person with AIDS to reside in an apartment rented for him by his financially qualified mother.13

Tenants with disabilities must be allowed, at their own expense, to make any reasonable modifications necessary for full enjoyment of premises, i.e., the unit, lobbies, main entrances, common areas, etc.14  Landlord does not have absolute right to reject modifications but may condition approval of unit modification on restoration agreement.

Housing providers must make reasonable accommodations in rules, policies, practices, or services necessary to afford persons with disabilities “equal opportunity to use and enjoy a dwelling.”15  The accommodation must be allowed unless it imposes an undue financial or administrative burden or requires a fundamental alteration in the nature of the provider’s program. HUD and the Department of Justice have issued a joint statement on reasonable accommodations that provides helpful guidance.16  Examples of required accommodations include (1) allowing a service animal for a blind tenant, (2) reserving a parking place for a tenant who uses a wheelchair, and (3) waiving rules to allow a tenant with disabilities to have a live-in aide. In addition to giving rise to an affirmative claim, failure to accommodate can be an affirmative defense to eviction.17

• 1The list of “major life activities” in 24 C.F.R. § 100.201 is not all-inclusive. United States v. Borough of Audobon, 797 F. Supp. 353 (D.N.J. 1991), aff’d, 968 F. 2d 14 (3d Cir. 1992).
• 2Oxford House Inc. v. Town of Babylon, 819 F. Supp. 1179 (E.D. N.Y. 1993) (people recovering from alcoholism and substance abuse disorders); United States v. S. Mgmt. Corp., 955 F. 2d 914 (4th Cir. 1992) (people recovering from substance abuse disorders).
• 3See Groome Res. Ltd. v. Par. of Jefferson, 234 F.3d 192 (5th Cir. 2000).
• 424 C.F.R. § 100.202(c); Cason v. Rochester Hous. Auth., 748 F. Supp. 1002 (W.D.N.Y. 1990) (holding that PHA can’t inquire into applicant’s ability to live independently).
• 5Roe v. Sugar Mill Assocs., 820 F. Supp. 636 (D.N.H. 1993); Citywide Assocs. v. Renfield, 564 N.E. 2d 1003 (Mass. 1991).
• 6Boston Hous. Auth. v. Bridgewaters, 898 N.E.2d 848 (Mass. 2009) (holding that housing authority must show that no reasonable accommodation would minimize risk mentally ill tenant poses to others); Renewal Homes v. Laneheart, 2017-0199 (La. App. 4 Cir. 10/18/17), 316 So. 3d 936 (affirming dismissal of eviction where tenant with schizoaffective disorder caused damage to the unit due to her disability, and landlord failed to reasonably accommodate her). But see Hous. Auth. of the City of Lake Charles v. Pappion, 540 So. 2d 567 (La. App. 3 Cir. 1989) (§ 504 case).
• 7Schuell Inv. Co. v. Anderson, 386 N.W. 2d 249 (Minn. Ct. App. 1986).
• 8Rutland Court Owners, Inc. v. Taylor, 997 A.2d 706 (D.C. 2010).
• 9Majors v. Hous. Auth. of the Cnty. of Dekalb, 652 F. 2d 454 (5th Cir. 1981); Whittier Terrace Assocs. v. Hampshire, 532 N.E.2d 712 (Mass. Ct. App. 1989).
• 10United States v. Cal. Mobile Home Park Mgmt. Co., 29 F.3d 1413 (9th Cir. 1994).
• 11Shapiro v. Cadman Towers, Inc., 51 F. 3d 328 (2d Cir. 1995) (granting preliminary injunction).
• 12Liddy v. Cisneros, 823 F. Supp. 164 (S.D.N.Y. 1993) (denying HUD’s motion to dismiss).
• 13Giebeler v. M & B Assocs., 343 F.3d 1143 (9th Cir. 2003).
• 1442 U.S.C. § 3604(f)(3)(A); 24 C.F.R. § 100.201.
• 1542 U.S.C. § 3604(f)(3)(B).
• 16Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations under the Fair Housing Act (May 17, 2004).
• 17Renewal Homes, 2017-0199, 316 So. 3d 936.

Examples of prohibited sex discrimination include refusal to rent to single women or working mothers,1  discounting woman’s income in evaluating family’s ability to pay for housing,2  discounting alimony or child support payments,3  sexual harassment (both “quid pro quo” and “hostile environment” harassment),4  and eviction of a domestic violence survivor.5

Whether the FHA extends to discrimination on the basis of sexual orientation or gender identity is a somewhat open question. In 2020, the U.S. Supreme Court held that firing individuals based on their sexual orientation or gender identity violated Title VII’s prohibition on discrimination based on sex.6  Federal courts often apply Title VII jurisprudence to analysis under the FHA.7  As of the time of this writing at least two federal district courts have “assumed” that “sex” under the FHA includes sexual orientation and gender identity.8  In February 2021, HUD issued a memorandum concluding that FHA prohibitions on sex discrimination extend to discrimination because of sexual orientation and gender identity.9

• 1Morehead v. Lewis, 432 F. Supp. 674 (N.D. Ill. 1977), aff’d, 594 F. 2d 867 (7th Cir. 1979).
• 2Normal v. St. Louis Concrete Pipe Co., 447 F. Supp. 624 (E.D. Mo. 1978).
• 3United States v. Reece, 457 F. Supp. 43 (D. Mont. 1978).
• 424 C.F.R. §100.600; Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010); United States v. Presidio Invs., Ltd., 4 F. 3d 805 (9th Cir. 1993); Honce v. Vigil, 1 F. 3d 1085 (10th Cir. 1993); Chomicki v. Wittekind, 381 N.W.2d 561 (Wis. Ct. App. 1985) (female tenant evicted after refusing landlord’s demand for sex); Greiger v. Sheets, 689 F. Supp. 835 (N.D. Ill. 1988) (landlord damaged property and refused repairs after female tenant refused sex); Genere v. Mass. Comm’n Against Discrimination, 524 N.E.2d 84 (Mass. 1988) (landlord made offensive sexual comments, but never demanded sex or threatened adverse action).
• 5Bouley v. Young-Sabourin, 394 F. Supp. 2d 675 (D. Vt. 2005).
• 6Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
• 7Holt v. JTM Indus., 89 F.3d 1224, 1229 (5th Cir. 1996) (recognizing strong similarities between the language of Title VII and Title VIII/FHA).
• 8Birdo v. Duluky, No. 20-CV-1108 (SRN/HB), 2020 WL 5549115, at *3 (D. Minn. Aug. 27, 2020), report and recommendation adopted, No. 20-CV-1108 (SRN/HB), 2020 WL 5545271 (D. Minn. Sept. 16, 2020); Scutt v. Dorris, No. CV 20-00333 JMS-WRP, 2020 WL 7344595, at *4 (D. Haw. Dec. 14, 2020).
• 9Memo from Jeanine M. Worden, Acting Asst. Sec’y for Fair Hous. & Equal Opportunity, U.S. Dep’t of Hous. & Urb. Dev., to Off. of Fair Hous. & Equal Opp., Fair Hous. Assistance Program Agencies, & Fair Hou. Initiatives Program Grantees, Implementation of Executive Order 13988 on the Enforcement of the Fair Housing Act (Feb. 11, 2021).

Examples of racial discrimination actionable under the FHA include: delayed action on minority couple’s apartment application;1  refusal to show available apartments;2  “grudging” sales techniques;3  showing Black applicants fewer units and quoting them higher rents and later dates of availability;4  requirements that minority applicants be approved or recommended by current tenants or other neighbors;5  sales person’s influence of customer’s decision on racial grounds;6  refusal to amend zoning ordinance to allow construction of multifamily housing outside of urban renewal area;7  closing private road to Black neighbor but allowing whites to use it;8  providing poorer services over time period when white tenants being replaced by Black tenants;9  substandard conditions in public housing developments;10  poorer municipal services for Blacks;11  false representation of unavailability;12  vandalism of new Black resident’s property by white neighbor;13  intimidation tactics by local resident to discourage Jews from moving into town;14 and operation of segregated public housing and Section 8 housing programs in metropolitan area.15

• 1Davis v. Mansards, 597 F. Supp. 334 (N.D. Ind. 1984).
• 2Bradley v. John M. Brabham Agency, Inc., 463 F. Supp. 27 (D.S.C. 1978).
• 3United States v. Pelzer Realty Co., Inc., 484 F. 2d 438 (5th Cir. 1973).
• 4United States v. Balestrieri, 981 F. 2d 916 (7th Cir. 1992).
• 5Robinson v. 12 Lofts Realty, Inc., 610 F. 2d 1032 (2d Cir. 1979); Grant v. Smith, 574 F. 2d 252 (5th Cir. 1978).
• 6Zuck v. Hussey, 394 F. Supp. 1028 (E.D. Mich. 1975), aff’d, 547 F.2d 1168 (6th Cir. 1977).
• 7Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir.), aff’d, 488 U.S. 15 (1988) (per curiam).
• 8Evans v. Tubbe, 657 F.2d 661 (5th Cir. 1981).
• 9Concerned Tenants Ass’n v. Indian Trails Apartments, 496 F. Supp. 522 (N.D. Ill. 1980).
• 10Durrett v. Hous. Auth. of the City of Providence, 896 F.2d 600 (1st Cir. 1990).
• 11Campbell v. City of Berwyn, 815 F. Supp. 1138 (N.D. Ill. 1993); cf. United Farm Workers of Fla. Hous. Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974).
• 12Havens Realty Co. v. Coleman, 455 U.S. 363 (1982).
• 1342 U.S.C. § 3617; Stackhouse v. DeSatter, 620 F. Supp. 208 (N.D. Ill. 1985); see also Sofarelli v. Pinellas Cnty., 931 F. 2d 718 (11th Cir. 1991) (neighbors’ threats, obscenities, spitting).
• 14LeBlanc-Steinberg v. Fletcher, 781 F. Supp. 261 (S.D.N.Y. 1991).
• 15Walker v. HUD, 912 F.2d 819 (5th Cir. 1990).

A private plaintiff may bring a lawsuit under the FHA in any appropriate U.S. district court or state court of general jurisdiction. A federal court may hear related state law claims under supplemental jurisdiction.1

• 128 U.S.C. § 1367(a).

Private civil actions must be filed no later than 2 years after the occurrence or termination of the discriminatory practice.1  HUD administrative complaints may interrupt or toll the statute of limitations. Claims under 42 U.S.C. §§ 1981 have a 4-year statute of limitations.2  Claims under 42 U.S.C. § 1982 have a 1-year statute of limitations.3  Claims under the Louisiana Open Housing Act are subject to a 2-year statute of limitations.4

• 142 U.S.C. § 3613(a)(1)(A).
• 2Jones v. R.R. Donnelly & Sons, 541 U.S. 369 (2004); see 28 U.S.C. § 1658.
• 3See Goodman v. Lukens Steel Co., 482 U.S. 656, 660–62 (1987); Bradley v. Carydale Enters., 707 F. Supp. 217, 220 (E.D. Va. 1989).
• 4La. R.S. 51:2613. Many subsidized housing leases will have a contract provision whereby the landlord agrees not to unlawfully discriminate. Contract claims are subject to a 10-year prescriptive period in Louisiana. However, the courts will probably apply the shorter statute of limitations for FHA violations (1, 2, or 4 years as applicable), torts (1 year), and crimes of violence (2 years). See, e.g., Sterling v. Urban Prop. Co., 562 So. 2d 1120 (La. App. 4 Cir. 1990).

Standing to sue depends on the substantive law involved. Plaintiffs under the FHA have standing if they are injured in any way by the FHA violation and may even assert third-party rights. Plaintiffs have been granted standing under the FHA for being deprived of the social and professional benefits of living in an integrated society.1

• 1Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 109 (1979).

FHA plaintiffs are entitled to jury trials in federal lawsuits for damages.1  Jury trials are also available for 42 U.S.C. §§ 1981–1982 actions.2

• 1Curtis v. Loether, 415 U.S. 189, 192 (1974).
• 2Thronson v. Meisels, 800 F.2d 136 (7th Cir. 1986).

Because discriminatory housing practices constitute irreparable injury,1  preliminary injunctions are available under the FHA. Preliminary injunctions may be consolidated with the trial on the merits.2  Evidence received at the preliminary injunction becomes part of record and need not be repeated at trial. You should, however, take steps to preserve your jury trial.

If a state court eviction action is currently pending, injunctive relief may be barred by the Anti-Injunction Act.3

• 1Gresham v. Windrush Partners, Inc., 730 F.2d 1417, 1423–24 (11th Cir. 1984).
• 2Fed. R. Civ. P. 65.
• 3For further discussion of the Anti-Injunction Act in the context of eviction defense, see Section 8.2.2.

Res judicata and collateral estoppel issues may arise when the landlord has obtained an eviction judgment. In Miller v. Hartwood Apartments, the court held that a Mississippi eviction court judgment did not bar the federal court litigation of a § 1983 claim because the tenants’ constitutional claims could not have been litigated in the eviction lawsuit.1  While Louisiana tenants’ damage claims (under civil rights law or otherwise) cannot be litigated in summary eviction proceedings, discrimination can be asserted as an eviction defense in Louisiana.2  However, if an eviction is brought as an ordinary action, failure to raise a damages claim in a reconventional demand may act as res judicata.3

To avoid issue preclusion problems, you should file a housing discrimination lawsuit before the landlord files an eviction lawsuit and obtain a state court lis pendens or federal court injunction against any eviction.4

The Rooker-Feldman doctrine may also bar an FHA suit.5

• 1689 F.2d 1239 (5th Cir. 1982). Where a state court procedure permits counterclaims for equitable or monetary relief in an eviction, the eviction judgment may constitute res judicata. See, e.g., Poindexter v. Allegheny Cnty. Hous. Auth., 329 F. App’x 347 (3d Cir. 2009).
• 2Mascaro v. Hudson, 496 So. 2d 428 (La. App. 4 Cir. 1986); Renewal Homes v. Laneheart, 2017-0199 (La. App. 4 Cir. 10/18/17), 316 So. 3d 936.
• 3Lafreniere Park Found. v. Broussard, 221 F.3d 804 (5th Cir. 2000).
• 4If the eviction court overrules the exception of lis pendens, a supervisory writ is available. See Dean v. Delacroix Corp., 2003-1352 (La. App. 4 Cir. 08/27/03), 853 So. 2d 769. However, because of the typical speed of summary eviction proceedings in which the court may overrule the exception and then immediately (i.e., at the same hearing) proceed to a trial on the merits. You should ask the court to stay the merits trial for a brief period to allow you to apply for a supervisory writ, but should also be prepared to go forward with the merits trial if the court refuses.
• 5For more detailed discussion of the Rooker-Feldman doctrine in housing cases, see Section 8.2.3.

There are 2 types of claims under the FHA: (1) disparate treatment and (2) discriminatory impact or effect. The proof required depends on the type of claim.

Rarely will a landlord expressly announce a discriminatory intent before engaging in disparate treatment (i.e., intentional discrimination), so an advocate must use alternate avenues of proof, typically through the burden-shifting framework common to discrimination law.

In the FHA context, this framework first requires a plaintiff who has been denied housing to make out a prima facie case.1  The required elements are (1) membership in a protected class; (2) actual application2  for a unit for which the plaintiff was qualified to rent or purchase;3  (3) rejection by the defendant; and (4) the continued availability of the unit thereafter.4  The defendant must then show a legitimate nondiscriminatory reason for the adverse action. If this burden is met, the plaintiff must show that the “legitimate reasons were a pretext” for discrimination. Pretext may be proven with “testing” evidence.5  For information on testing services that may be available in your area, contact the Louisiana Fair Housing Action Center, Ph. (504) 596-2100.

In mixed motive cases, the housing decisions are based only in part on a prohibited motive. All federal courts of appeals have held that the FHA is violated even if race is just one of the motivating factors.6

• 1See, e.g., HUD ex rel. Herron v. Blackwell, 908 F.2d 864, 870–71 (11th Cir. 1990).
• 2An application may be unnecessary under the futile gesture doctrine. Punchback v. Armistead Homes Grp., 907 F.2d 1447 (4th Cir. 1990).
• 3Plaintiff should be financially qualified for the unit.
• 4Testers can be used to prove this element.
• 5Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
• 6See, e.g., Payne v. Bracher, 582 F.2d 17, 18 (5th Cir. 1978); HUD v. Denton, FH-FL Rptr. 25,024, 1992 WL 406537 (HUD ALJ 1992). For more on mixed motive cases, see C. Giles, Shaking Price Waterhouse: Suggestions for a More Workable Approach to Title VIII Mixed Motive Disparate Treatment Discriminatory Cases, 37 Ind. L. Rev. 815 (2004).

There have been two broad types of discriminatory effect cases: (1) perpetuation of segregation (e.g., Huntington Branch, NAACP v. Town of Huntington)1  and (2) discriminatory impact (Betsey v. Turtle Creek Associates).2

In 2015, the U.S. Supreme Court affirmed that disparate impact claims are cognizable under the Fair Housing Act.3  In its decision, the Court cited favorably the burden-shifting test in HUD’s 2013 discriminatory effects rule, though it declined to settle the issue of what test should apply. After the Trump Administration substantially rolled back the rule in 2020, the Biden Administration reinstated it in 2021.4

HUD’s burden-shifting is as follows: (1) The plaintiff or charging party is first required to prove as part of the prima facie showing that a challenged practice caused or predictably will cause a discriminatory effect. (2) If the plaintiff or charging party makes this prima facie showing, the defendant or respondent must then prove that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the defendant or respondent. And (3) If the defendant or respondent meets its burden at step two, the plaintiff or charging party may still prevail by proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.

Despite the Supreme Court’s favorable citation to this standard, the Fifth Circuit has applied a more restrictive “robust causation” test. This test requires that either “a change in the defendant's enforcement of [a] policy” caused a disparate impact or that a challenged policy “caused [the relevant minority group] to be the dominant group” of those affected by the policy.5  The robust causation requirement references the Supreme Court’s emphasis that where a claim relies on a statistical disparity, the claim “must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity.”6  This is a developing area of the law.

• 1844 F.2d 926 (2d Cir. 1988).
• 2736 F.2d 983 (4th Cir. 1984).
• 3Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519 (2015).
• 486 Fed. Reg. 33590 (June 25, 2021).
• 5Inclusive Cmtys. Project, Inc. v. Heartland Cmty. Ass’n, 824 F. App’x 210, 217 (5th Cir. 2020) (citing Inclusive Cmtys. Project v. Lincoln Prop. Co., 920 F.3d 890 (5th Cir. 2019) and declining to overrule that widely questioned decision).
• 6Tex. Dep’t of Hous. & Cmty. Affairs, 576 U.S. at 542.

General tort principles apply to FHA damage suits, which allow recovery of nominal, actual, and punitive damages.1  The major components of actual damages in FHA cases are humiliation, embarrassment, and emotional distress.2

Punitive damages may be appropriate where “reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law” are evidenced.3  At least 4 circuits have adopted this standard for FHA claims.4  Applying this standard, the Fifth Circuit approved a $55,000 punitive damages award where the actual damages were only $500.5  The Eighth Circuit used a multiplier of 4 in an FHA sex harassment case.6

• 1Curtis v. Loether, 415 U.S. 189 (1974).
• 2For a discussion of damage awards, see Kale Williams, Maximizing Damage Awards in a Fair Housing Case, 26 John Marshall L.R. 1 (1993).
• 3461 U.S. 30 (1983)
• 4Lincoln v. Case, 340 F.3d 283 (5th Cir. 2003).
• 5Id.
• 6Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010).

Under § 3613, the court may grant permanent and interlocutory injunctions. The courts are divided over whether the Anti-Injunction Act bars FHA injunctions of state court actions in progress.1  Given these uncertainties, it may be preferable to sue in state district court when an FHA plaintiff faces a state court summary eviction lawsuit.2  If the federal case is filed before the landlord files the eviction case in state court, lis pendens should bar the eviction action and force the litigation of all of the outstanding issues in the housing discrimination lawsuit.

• 1Compare Casa Marie, Inc. v. Superior Ct. of P.R., 988 F. 2d 252 (1st Cir. 1993), with Oxford House, Inc. v. City of Albany, 819 F. Supp. 1168 (N.D.N.Y. 1993).
• 2Note that a different situation would be presented if you also had a 42 U.S.C. § 1983 action against a governmental defendant since a § 1983 action is a recognized exception to the Anti-Injunction Act. But you should also consider whether Younger abstention applies. 

A successful plaintiff can obtain attorney’s fees under the FHA under standards virtually identical to those in 42 U.S.C. § 1988.1

Attorney’s fees are also available under the Louisiana Open Housing Act (LOHA). Note, however, that the LOHA provides attorney’s fees to whichever party prevails. Although the sponsors of that change have stated that their intent was to adopt the same attorney’s fees standard as the FHA, it is possible that the courts will use a “loser pays” standard rather than the “frivolous” standard used in FHA cases.

• 1See 42 U.S.C. § 3613(a).