Fair Housing Act
The Fair Housing Act is a closed-list discrimination statute, and almost every trap on it comes from misremembering one of two closed lists.
20. Fair Housing Act
The Federal Fair Housing Act (“FHA”) is Title VIII of the Civil Rights Act of 1968. 28 U.S.C. § 3603 et seq. The FHA makes certain discriminatory practices illegal in the sale, lease, or advertising of housing.
- The FHA applies to discrimination on the basis of race, color, religion, sex, familial status, national origin, and disability.
- The FHA applies to a wide range of actions related to the sale or rental of housing. These include refusals to rent or sell, pricing, advertising, and performing maintenance or repairs.
- Property owners, real estate agents, and advertisers are all subject to liability under the FHA.
- The FHA does not apply to:
- The sale or rental of a single family home that is sold or rented by the owner without the use of an agent [and without the use of discriminatory advertising]; or
- Dwellings with no more than four units when the landowner resides in one of the units [and the owner sells or rents the premises without the use of discriminatory advertising].
- To establish a prima facie case under the FHA, the plaintiff must show that:
- They are a protected person under the FHA;
- They offered to buy/lease the property, requested a repair, or took some other action covered by the Act;
- They were rejected (or their request was refused) by the defendant; and
- The property remained available for purchase/rent by others (or the defendant provided repairs, accommodations, or services to others).
- Generalized safety concerns do not offer a defense under the FHA to claims of discrimination based on familial status or disability.
- The FHA provides civil remedies for injured parties in federal court.
- The Nevada FLE does not require recall of other steps that are part of pursuing an FHA claim, such as shifts in the burden of proof or claims of pretext.
- [The Nevada FLE does not test application of the FHA to discrimination based on sexual orientation or gender identity because that area of law is unsettled.]
The FHA is a closed-list statute. It bars housing discrimination on seven protected classes, reaches owners, agents, and advertisers, and yields only two narrow exemptions that are lost the moment discriminatory advertising is used.
The Fair Housing Act is a closed-list discrimination statute, and almost every trap on it comes from misremembering one of two closed lists. The first closed list is the protected classes. The FHA prohibits housing discrimination on the basis of race, color, religion, sex, familial status, national origin, and disability. That is the entire enumeration; treat it as closed, with nothing added and nothing dropped.
The second thing to fix in your head is how wide the covered conduct is. The Act reaches the sale, the lease, and the advertising of housing, and the prohibited actions run a wide range: refusing to rent or sell, pricing, advertising, and even performing maintenance or repairs. So a defendant who fixes things for everyone except a protected tenant, or who refuses a repair request from a protected person, is squarely inside the Act. And it is not just owners on the hook: property owners, real estate agents, and advertisers are all subject to liability.
There are exactly two exemptions, and they are narrow. One: a single-family home sold or rented by the owner without using an agent. Two: a dwelling of no more than four units where the owner lives in one of the units. But both exemptions carry the same poison pill: if the owner uses discriminatory advertising, the exemption is lost. One special defense rule is also worth memorizing: a generalized safety concern is not a defense to a familial-status or disability claim. And the remedy is civil, in federal court.
- 1The plaintiff is a protected person under the FHA.
- 2The plaintiff offered to buy or lease, requested a repair, or took some other covered action.
- 3The plaintiff was rejected or refused by the defendant.
- 4The property remained available to others, or the defendant provided the repair, accommodation, or service to others.
The single most common trap adds a class that is not on the list, the favorite addition being sexual orientation or gender identity. An answer that lets an agent or advertiser off because they did not own the property is also a trap. And watch for a fact pattern that sets up a clean owner-occupied fourplex and then drops in a discriminatory ad: the ad destroys the exemption, and liability snaps back.
The FLE does not test application of the FHA to discrimination based on sexual orientation or gender identity, because that area of law is unsettled. Nor does it require the burden-shifting or pretext steps that come later in an FHA case, so an answer that demands a burden-shift or pretext analysis reaches outside the tested scope.
Protected classes, the closed seven: "R-C-R-S-F-N-D". Race, Color, Religion, Sex, Familial status, National origin, Disability. If an answer turns on a class not on these seven (above all sexual orientation or gender identity), eliminate it.
Covered conduct is wide: sale, lease, and advertising; refusing to rent/sell, pricing, advertising, and even maintenance/repairs all count.
Who is liable: owners, agents, and advertisers, all three.
"Not the owner" is never a free pass.
single-family home sold/rented by owner without an agent
owner-occupied dwelling of no more than four units
both are lost the moment discriminatory advertising is used.
Prima facie = four boxes: protected person + took a covered action + rejected/refused + property stayed available to others (or service given to others).
Safety is no shield: a generalized safety concern is not a defense to a familial-status or disability claim.
Out of scope, do not import: burden-shifting and pretext; remedy is civil in federal court.
An owner of a four-unit apartment building lives in one of the units and rents out the other three himself, without any real estate agent. A family with two young children applies to rent one of the open units. The owner tells them he would rather not rent to families with small children because he is worried the kids could get hurt on the building's steep back staircase, and he rents the unit to a childless applicant instead. The owner never placed any advertisement for the unit. The family sues under the Fair Housing Act.
The family does not prevail, because the owner-occupied four-unit, no-agent, no-advertising exemption takes him outside the FHA. Suppose instead the owner had run a newspaper ad saying "no children." That discriminatory advertising destroys the exemption, the Act applies, and the generalized-safety-concern excuse is no defense to the familial-status claim, so the family wins.
An option grounds FHA liability in sexual-orientation or gender-identity discrimination, or an answer treats those as protected classes.
The tested protected classes are the closed seven (race, color, religion, sex, familial status, national origin, disability); sexual orientation and gender identity are outside the tested scope because the law is unsettled.A sympathetic “no liability” that rests on a generalized safety concern in a familial-status or disability case, or that lets an agent or advertiser off because they did not own the property.
A generalized safety concern is not a defense to a familial-status or disability claim; and owners, agents, and advertisers are all subject to liability.An option adds a requirement that the plaintiff prove pretext or satisfy a burden-shift, or misstates covered conduct (e.g., says advertising or refusing a repair is not regulated).
The FLE does not test burden-shifting or pretext; the prima facie case is the four printed elements, and covered conduct expressly includes advertising and performing maintenance or repairs.An option treats an exemption as absolute (“always exempt”) regardless of advertising, or overstates the safety rule to bar all safety consideration.
Both exemptions are lost if discriminatory advertising is used; and the safety rule forecloses only a generalized safety concern as a defense to disability/familial-status claims, not every consideration.An option conditions liability on a number that is not in the rule, such as a unit count for general liability or a count of other homes the owner holds.
Liability is not thresholded by such counts; the four-unit figure belongs only to the owner-occupied exemption, and the discriminatory-advertising override turns on the advertising, not on how many homes the owner owns.the stem hands you a housing transaction, a refusal to rent or sell, a pricing decision, an advertisement, or a refused repair, aimed at someone described by a personal characteristic.
The instant you see that, run three quick checks.
is the characteristic one of the closed seven protected classes (race, color, religion, sex, familial status, national origin, disability)?
If it is sexual orientation or gender identity, the fha claim is outside scope.
does an exemption apply (a single-family home sold by the owner without an agent, or an owner-occupied building of no more than four units), and was that exemption blown by discriminatory advertising?
if the basis is familial status or disability and the defendant offers a generalized safety concern, that is not a defense.
Owners, agents, and advertisers are all on the hook, and you never need a burden-shift or pretext step to get to the answer.
A prospective tenant applied to rent an apartment in a large building owned by a property management company. The leasing agent turned the application down and told the tenant directly that the company did not rent to people of the tenant's religion. The unit stayed on the market and was shown to other applicants afterward. The tenant sued under the Fair Housing Act.
Is the tenant likely to succeed on the Fair Housing Act claim?
A homebuyer made an offer to purchase a condominium listed for sale by a real estate brokerage. The seller, through the listing agent, rejected the offer and stated that it was because of the buyer's sexual orientation, and the condominium stayed on the market for other buyers. The buyer sued under the Fair Housing Act, asserting that the rejection was discriminatory.
Is the buyer likely to succeed on the Fair Housing Act claim as tested on the exam?
An owner of a three-unit building lives in one of the units and rents the other two himself, without engaging any real estate agent. A prospective tenant of a particular national origin applied to rent one of the open units. The owner declined to rent to the applicant because of the applicant's national origin and instead rented to someone else. The owner never advertised the unit in any way. The applicant sued under the Fair Housing Act.
Is the applicant likely to succeed on the Fair Housing Act claim?
An owner of a single-family home offered the house for rent and handled the rental himself without using a real estate agent. To attract tenants, the owner placed an online listing that stated the home was available only to applicants of a particular race. An applicant of a different race, who was turned away, sued under the Fair Housing Act, and the home remained available afterward.
Is the applicant likely to succeed on the Fair Housing Act claim?
A landlord of a large apartment complex refused to rent an available ground-floor unit to an applicant who uses a wheelchair. The landlord explained that he was concerned the applicant might have trouble exiting quickly in an emergency and could be hurt, so he thought it safer not to rent to the applicant. He rented the unit to someone else. The applicant sued under the Fair Housing Act, and the unit had remained available to other applicants.
Is the applicant likely to succeed on the Fair Housing Act claim?