Comply with State, Local Fair Housing Laws that Go Beyond Federal Law

Federal fair housing law bans owners and managers from discriminating against prospects and residents based on race, color, national origin, religion, sex, disability, and familial status. But most states and many municipalities have fair housing laws that ban owners and managers from discriminating against prospects and residents for other reasons. For example, Illinois bans discrimination based on age, marital status, ancestry, and military status or dishonorable discharge. And Chicago bans discrimination based on sexual orientation, parental status, and source of income.

Recently, a group of apartment owners and brokers in New York settled a case alleging that they routinely turned away prospective tenants who sought to use vouchers to supplement their rent [HRI v. Corcoran Group LLC]. Both New York State and New York City have enacted laws that prohibit discrimination based on source of income. Source-of-income discrimination is the illegal practice by owners and brokers of refusing to rent to current or prospective tenants seeking to pay for a rental unit with housing vouchers, subsidies, or other forms of public assistance.

In 2020, a local law in New York City was enacted expanding the ban on income discrimination to owners of small buildings with one to five units. The law amended the definition of “lawful source of income” to clarify that the term encompasses other types of lawful income that low-income New Yorkers may have access to, including “child support, alimony, foster care subsidies, income derived from social security, or any form of federal, state, or local public assistance or housing assistance including, but not limited to, Section 8 vouchers.”

Knowing what types of housing discrimination federal fair housing law bans isn't enough. You and your staff also need to know what, if any, additional types of housing discrimination your state and local laws ban. If you don't comply with state and local laws, you may be ordered to pay damages to a complainant. And your state housing agency must report all fair housing violations to the IRS as noncompliance.

What State, Local Laws Commonly Ban

State and local fair housing laws commonly ban the following types of discrimination. Check with your attorney or state and local fair housing commissions to find out what types of discrimination your state or local laws ban.

Sexual orientation. If your state or local law bans discrimination based on sexual orientation, find out how the term is defined. Most state and local laws define “sexual orientation” as including heterosexuality, homosexuality, and bisexuality.

Marital status. Your state or local law may ban discrimination based on marital status—that is, based on whether the prospect or resident is single, married, separated, divorced, or widowed. In some states and municipalities, this ban also protects unmarried couples who live together.

Ancestry. As you know, federal fair housing law protects prospects and residents from discrimination based on their national origin. But some state and local laws go further, protecting prospects and residents from discrimination based on ancestry—that is, the origin of their families.

Creed. If your state or local law bans discrimination based on creed, you can't discriminate against a prospect or resident based on his or her sincerely held beliefs, including religious, political, or philosophical beliefs.

Source of income. Your state or local law may ban discrimination based on “source of income”—that is, based on where money or financial support comes from. States and municipalities typically adopt such a ban to protect prospects and residents who get government assistance.

But states and municipalities that ban discrimination based on source of income do let owners reject prospects who don't have enough income. So if your tax credit site is located in such a state or municipality, make sure you adopt written guidelines on how much income is needed and apply those guidelines consistently.

Age. Your state or local law may also ban discrimination based on age. Many states, such as Virginia, ban discrimination against the elderly, while others, such as Delaware, ban discrimination against anyone 18 years and older, including emancipated minors. So make sure you and your staff know how your state or local law defines “age.”