Feature
by Martin Snitow
Federal and state laws both govern fair housing. Federal laws prohibit housing discrimination based on race, color, religion and national origin (Title VIII of the Civil Rights Act of 1968, the Fair Housing Act), sex or gender (Housing and Community Development Act of 1974), and familial status and handicap (Fair Housing Act Amendments of 1988). The U.S. Department of Housing and Urban Development may determine that state or local law is “equivalent” in protection to the federal statutes. When approved by HUD, a state or local agency will enforce both the federal and state fair housing laws.
“Equivalent” Laws Are Not Identical
HUD has ruled that California’s laws against housing discrimination are “equivalent” to federal statutes. The California Department of Fair Employment and Housing is the primary agency that investigates, mediates and prosecutes fair housing claims in this state. “Equivalent” does not mean “identical,” and California’s law has a number of unique features.
California law prohibited several types of discrimination before the federal laws were passed. The Unruh Civil Rights Act (Civil Code §51 et seq.), originally adopted in 1909 and amended as recently as 2000, now prohibits discrimination by businesses based on sex, race, color, religion, ancestry, national origin, disability or medical condition. “Ancestry,” added in 1959, and “medical condition,” effective January 1, 2001, have no federal counterparts.
The California Supreme Court interpreted the Unruh Act in Marina Point, Ltd. v. Wolfson ([1982] 30 Cal 3d 721) as barring all “arbitrary” discrimination by a business establishment, including discrimination against renting to families with children. This decision came six years before federal law prohibited discrimination based on familial status.
California also prohibits discrimination in housing based on sexual orientation and source of income (Government Code §12955). Federal law does not protect against these types of discrimination. The “source of income” law does not require a landlord to participate in Section 8 federal housing assistance programs.
Some differences between California and federal law seem trivial. Federal law prohibits discrimination based on “handicap” while California statutes use the more politically correct term “disability.” California also prohibits discrimination based on “ancestry.” Only in the most rare cases will discrimination based on ancestry differ from discrimination based on “national origin.” In Abou-Jaoude v. British Airways ([1991] 228 Cal. App. 3d 113), a family of Lebanese extraction sued for discrimination based on ancestry and national origin without distinguishing between the two claims.
“Arbitrary”Discrimination: A Catchall?
Courts have held that the Unruh Act prohibits all “arbitrary” discrimination. As stated in the Marina Park case (30 Cal.3d at 725-726), an individual “…cannot be excluded solely because he falls within a class of persons whom the owner believes is more likely to engage in misconduct than some other group. Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination.”
When is discrimination considered “arbitrary?” In Koire v. Metro Car Wash ([1985] 40 Cal.3d 24, 36), the California Supreme Court held that a car wash could not offer discounts to female customers on “Ladies Day,” and a bar could not offer free admission to females on “Ladies Night.” Some promotional discounts are still permissible under the Unruh Act: “For example, a business establishment might offer reduced rates to all customers on one day each week. Or, a business might offer a discount to any customer who meets a condition which any patron could satisfy (e.g., presenting a coupon…). In addition, nothing prevents a business from offering discounts for purchasing commodities in quantity, or for making advance reservations. The key is that the discounts must be 'applicable alike to persons of every sex, color, race, [etc.]’ …instead of being contingent on some arbitrary class-based generalization.” In the rental housing market, “move-in” discounts are valid, because any new tenant can qualify regardless of sex, color, race, etc.
Age Discrimination in Housing
Both California and federal law prohibit discrimination against families with children under age 18. Both specifically permit housing restricted to senior citizens when certain requirements are met. Federal law does not otherwise cover housing discrimination based on age. California law does. Civil Code §51.2 states that, except for qualified senior housing, the Unruh Act “...shall be construed to prohibit a business establishment from discriminating in the sale or rental of housing based upon age….” This law applies only in the housing field. Discrimination based on age is not “arbitrary” in other areas. Starkman v. Mann Theatres Corp. ([1991] 227 Cal. App. 3d 1491, 1496) approved movie theater discounts for children age 12 or under and for senior citizens.
Why might a landlord want to discriminate based on age? Fair housing agencies compare the percentage of families with children who are tenants of an accused landlord with census data showing the percentage of tenants who have children in the local area. A landlord might decide to improve his statistics and actively favor families with children in rental decisions. While this should reduce claims of discrimination based on familial status, the strategy will backfire since housing discrimination based on age is illegal in California.
One landlord in San Jose considered using a “credit scoring” approach to tenant selection. Credit scoring helps lenders decide whether a borrower is qualified for a loan. It uses objective facts to evaluate customers, rather than a manager’s judgment. Scoring is based on a statistical model that examines many types of data to determine what information is most important in making a reliable decision. Both credit card companies and mortgage lenders are prominent users of credit scoring. The landlord hoped a similar technique would help select more qualified tenants without violating fair housing laws.
The first statistical model developed to “score” tenants included the age of the tenant as a reliable predictor of the likelihood of tenant problems. While legal in other states, this model violates California’s law against age discrimination in housing. Informed of this law, the landlord chose a different statistical model developed for student housing. That model does not use age to make rental decisions and is legal.
Disability and Medical Condition
Under federal law a “handicap” is a physical or mental impairment that “substantially” limits one or more major life activities. California’s definition of a disability omits the word “substantially.” Courts previously assumed that this omission was not significant and construed federal and California law the same way (Cassista v. Community Foods [1993] 5 Cal. 4th 1050). State regulations adopted under the old California law (2 Cal. Code Regs §7293.6 [1980]) included the missing word.
A second difference arose when the U.S. Supreme Court ruled that, under the Americans With Disabilities Act, a disability must be evaluated in light of the person’s condition using corrective measures (Sutton v. United Airlines [1999] 527 U.S. 471). A severely near-sighted person would not be disabled under this decision if eyeglasses correct his vision.
Effective January 1, 2001, the Unruh Act and the Fair Employment and Housing Act provide greater protection for the disabled and new protection for those with medical conditions. These statutes now reject the Cassista decision and define a disability as any limitation of a major life activity, even if not “substantial.” The amended laws also consider disability “without respect to any mitigating measures, unless the mitigating measure itself limits a major life activity” (Government Code §§12926 and 12926.1). Section 12955.3 applies this definition to fair housing. These laws protect those with physical and mental impairments that are “disabling, potentially disabling, or mistakenly perceived as disabling or potentially disabling.” Federal law has none of these changes.
Accommodating A Tenant’s Disability
What is the practical effect of the California statutes? Under both federal and California law, a landlord must make “reasonable” accommodations to the facilities or policies when “necessary” to allow the disabled an equal opportunity to use and enjoy the dwelling [Fair Housing Act, 42 U.S.C. §3604(f)(3)(B) and Civil Code §54.1(b)(3)(B)]. A tenant with a condition that is only “potentially disabling,” or that the landlord mistakenly thinks is disabling, or that has only an insubstantial limitation on a major life activity will not usually “need” an accommodation.
“The concept of necessity requires…at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of life by ameliorating the effects of the disability” [Bronk v. Ineichen (7th Cir., 1995) 54 F.3d 425, 429]. Even when an accommodation is necessary, it may not be “reasonable” if the cost to the landlord exceeds the benefit to the tenant. The California laws expand the number of tenants who can sue for disability discrimination, but they do not change the landlord’s duty to accommodate the disabled.
California Fair Housing Laws Are Broad
Unlike federal laws, California prohibits housing discrimination based on sexual orientation, age, source of income, ancestry and medical conditions or disabilities that do not have a substantial effect on major life activities or that can be completely mitigated. Damages and penalties for violating fair housing laws are severe. When in doubt, seek professional legal advice.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. Martin S. Snitow is an attorney experienced in many areas of business and real estate law. He has been defending landlords in fair housing cases since 1985. He can be reached at 408-985-7575. His fair housing articles are available online at msslc.com. © Copyright 2002.