5.2 Federal Fair Housing Law and Protected Classes

The seven federal protected classes

The federal Fair Housing Act (Title VIII of the Civil Rights Act of 1968, amended 1974 and 1988) prohibits discrimination in the sale, rental, financing, and advertising of housing. Memorize the seven protected classes with the mnemonic "R-C-R-N-S-D-F" or the phrase covering:

• Race
• Color
• Religion
• National origin
• Sex (including gender; HUD also enforces gender identity and sexual orientation)
• Disability / Handicap (added 1988)
• Familial status (added 1988 — families with children under 18, pregnant persons, those securing custody)

Note what is not federally protected: marital status, age, occupation, sexual orientation (covered by HUD policy and many state laws but not named in the 1968 statute), and source of income. Many states add these, but on the national portion stick to the seven.

The Civil Rights Act of 1866 and Jones v. Mayer

The Civil Rights Act of 1866 prohibited all racial discrimination in property transactions, public or private. In Jones v. Alfred H. Mayer Co. (1968), the U.S. Supreme Court held the 1866 Act bans private racial discrimination with no exemptions.

This is the most heavily tested fair-housing fact: even when the 1968 Act's exemptions apply to a transaction, race is never exempt. There is no situation in which racial discrimination in housing is lawful.

Prohibited practices

For disability, two affirmative duties matter: a landlord must allow reasonable modifications (physical changes, usually at the tenant's expense) and reasonable accommodations (changes to rules/policies/services, at the housing provider's expense). A service or assistance animal is an accommodation, not a pet — no pet fee may be charged.

Reasonable accommodation vs. modification, and the design rules

Disability protection imposes two affirmative duties the exam constantly contrasts:

A service or assistance animal is not a pet: no pet deposit or fee may be charged, and "no-pets" buildings must still allow it as an accommodation.

For covered multifamily housing built for first occupancy after March 13, 1991 (buildings of 4+ units with an elevator, or ground-floor units in non-elevator buildings), the Act adds seven design-and-construction requirements (accessible entrance on an accessible route, usable doors, accessible common areas, reinforced bathroom walls for grab bars, etc.).

Familial status and HOPA

Familial status protects households with children under 18, pregnant persons, and those securing custody. The narrow exception is qualified "housing for older persons" (HOPA) — 62-and-older communities, or 55-and-older communities meeting the 80%-occupancy and intent rules — which may lawfully exclude children.

Worked exemption trap and enforcement timeline

A private owner of two single-family homes rents one out himself, with no broker and no advertising, and refuses an applicant because of race. Is it lawful? No. The would-be "single-family home by owner" exemption never reaches race — the Civil Rights Act of 1866, upheld in Jones v. Mayer, bars all racial discrimination in property with no exemptions. Change the facts so the owner refuses based on familial status with no broker, no ad, and three-or-fewer homes, and the narrow exemption can apply — but the instant a licensee enters or an ad runs, coverage snaps back on.

Enforcement deadlines worth memorizing:

HUD investigates, may conciliate, and can refer to an Administrative Law Judge; remedies include actual and punitive damages, civil penalties that escalate for repeat offenders, and injunctive relief. The 1988 amendments added disability and familial status and strengthened HUD's enforcement powers.

Exemptions (limited and trap-laden)

The 1968 Act has narrow exemptions, but they are riddled with conditions:

• Owner-occupied dwellings of 1-4 units (the "Mrs. Murphy" exemption) when renting rooms/units.
• Single-family homes sold or rented by the owner without a broker, if the owner owns three or fewer such homes.
• Religious organizations and private clubs limiting to members (non-commercial).

Critical limits on every exemption:

1. They never apply to race (the 1866 Act overrides).
2. They are lost if a real estate licensee is used in the transaction.
3. They never permit discriminatory advertising — even an exempt owner cannot publish a discriminatory ad.

So a licensee can essentially never rely on these exemptions; they exist for unaided private owners only.

Enforcement and timelines

The Department of Housing and Urban Development (HUD) enforces the Fair Housing Act. Key deadlines:

• File an administrative complaint with HUD within one year of the discriminatory act.
• Alternatively, file a civil lawsuit in federal court within two years.
• HUD investigates, may attempt conciliation, and can refer to an Administrative Law Judge; penalties include fines (escalating for repeat violations), actual and punitive damages, and injunctive relief.

Real estate professionals must display the Equal Housing Opportunity logo/poster and avoid any words, images, or media targeting that signal a preference. Note that the 1988 amendments added disability and familial status and gave HUD stronger enforcement powers.