13.1 General Principles

The federal Fair Housing Act is codified at 42 U.S.C. §§ 3601–3619 and 3631. Sections 3604-3606 and 3617 contain the substantive prohibitions of the Act. The federal Fair Housing Act (FHA) makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”1  A separate provision bans discrimination based on disability.2  The phrase, “otherwise make unavailable or deny” has been broadly construed to include numerous housing practices unspecified in statutory text such as redlining, steering, and exclusionary zoning. The U.S. Department of Housing and Urban Development (HUD) oversees implementation of the FHA, and courts must generally defer to HUD’s interpretations and regulations.3

42 U.S.C. §§ 1981 and 1982 also outlaw private and public racial discrimination in housing, even housing that is exempt under the FHA.4  The Louisiana Open Housing Act also prohibits housing discrimination.5  It is virtually identical to the FHA. Some advantages to filing in state court under the Open Housing Act would be an automatic lis pendens bar to subsequent eviction lawsuits and avoidance of res judicata, Anti-Injunction Act, and Rooker-Feldman issues.6  On the other hand, the Open Housing Act does not have a body of case law interpreting it and may have a fee-shifting provision that allows fees to be awarded against a losing plaintiff.7

• 142 U.S.C. § 3604(a); see 42 U.S.C. §§ 3601–3619, 3631.
• 242 U.S.C. § 3604(f)(1).
• 324 C.F.R. § 100, et seq.; Chevron USA v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984); Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 210 (1972).
• 4Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
• 5La. R.S. 51:2601, et seq.
• 6A state court lawsuit that only pleads a state law claim may defeat removal to federal court.
• 7For a discussion of fee-shifting under the Louisiana Open Housing Act, see Section 13.8.3.