When Does Rejecting LGBTQ+ Applicants Violate Fair Housing Law?

Q: Which of the following is legitimate justification for refusing to rent to a gay male applicant? 

a.         The applicant’s credit rating is below the community’s required minimum standard for eligibility

b.         Concern that the applicant may have HIV/AIDS and expose other tenants to infection risk

c.          Concern that the applicant’s sexuality won’t mesh with the “Christian values” of other tenants

Scroll down for the Answer …

Correct answer: a 

This scenario makes an important point that applies to not only LGBTQ+-based discrimination but also racial, religious, sex, and all other forms of discrimination: The ban on discrimination requires you to provide equal, not preferential treatment. 

In this case, the landlord may reject a gay applicant for having a poor credit score to the extent it would reject a heterosexual applicant for the same reason. In other words, the fact that the applicant is gay has no bearing on the decision to reject him. So, a. is the right answer. 

Note: The only situation in which preferential treatment may be required is where a landlord must make reasonable accommodations for an applicant with a disability. But that exception doesn’t apply in this scenario.   

Wrong answers explained: 

b.         The reason b. is wrong is that the landlord’s decision to reject the applicant is based on the stereotype that gay men have or are likely to have HIV/AIDS. And while sexual orientation is in no way considered a disability, having or being perceived as having a disease like HIV/AIDS is. Similarly, rejecting an applicant because you think he’s gay is sexual orientation discrimination even if the perception is wrong and the applicant is actually heterosexual.  

c.          Refusing to rent to applicants on the basis of their “comfort” or “fit” with other tenants is illegal steering to the extent your assessment is based on the applicant’s race, religion, sex, etc. And that’s exactly what the landlord did in concluding that the applicant’s sexual preference was grounds for excluding him from a “Christian” community. 

In recognition of Pride Month, our June lesson addresses the thorny issue of LGBTQ+ discrimination and what landlords must do to avoid it. First, we explain how the fair housing laws apply to LGBTQ+ people. We show you why potential liability for sexual orientation and/or gender identity discrimination is and will remain a concern in many parts of the country, regardless of the current state of federal enforcement under Trump 2.0. Then we outline nine rules that landlords and their leasing agents, maintenance, and other rental staff must know to avoid engaging in LGBTQ+ discrimination inadvertently. Our June lesson, LGBTQ+ Discrimination & the 9 Things to Do to Prevent It, is available to premium subscribers.