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).