13.5.3 Sex Discrimination

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).