Pride in Fair Housing

Happy June, folks. Pollen is in the air, summer vacations are on the horizon—and there are rainbows, rainbows, everywhere. In honor of Pride Month, let’s take a look at how fair housing laws apply to condominiums (condos) and homeowners associations (HOAs)—specifically regarding members of the LGBTQ+ (Lesbian, Gay, Bisexual, Transgender, etc.) community.

 

FAIR HOUSING AND COMMUNITY ASSOCIATIONS

Condos and HOAs are not “housing providers” in a literal sense like landlords or realtors. However, they do fall into this category for the purpose of fair housing laws, which prevent discrimination in access to housing.

The Fair Housing Act of 1968 (AKA Title VIII) is a federal law and a follow-up to the Civil Rights Act’s prohibition against employment discrimination. Federal fair housing laws are enforced by the U.S. Department of Housing and Urban Development. Additionally, many State or local governments have created their own fair housing laws and enforcing bodies, which may reinforce or add to those protections set forth by Title VIII.

 

FAIR HOUSING LAW AND THE LGBTQ+ COMMUNITY

As of 2020, housing discrimination against LGBTQ+ individuals is prohibited by federal law.

The text of Title VIII prohibits housing discrimination based on: race, color, national origin, sex, religion, familial status, military status, or disability. Additionally, as stated above, many States have expanded upon these protections; California, for example, also prohibits discrimination based on one’s age.

In its landmark decision in Bostock v. Clayton Cty., the U.S. Supreme Court held that Title VII’s prohibition against discrimination based on “sex” must necessarily include sexual orientation and gender identity. In light of this and following Executive Order 13988, the U.S. Department of Housing and Urban Development applied this definition of “sex” to enforcement of Title VIII’s fair housing protections.

 

FAIR HOUSING: WHAT (NOT) TO DO

The general requirement of fair housing laws is thus: No person or entity to whom these fair housing laws apply (including condos and HOAs) may take any “adverse action” that affects someone’s right to buy, rent, or enjoy the use of housing/real estate based on that person’s protected status. So, condos and HOAs may not take any adverse actions that affect someone’s right to housing based on their gender or sexual identity.

Please note that “adverse action” may entail outright screening or upholding discriminatory policies. However, it may also entail facilitating a hostile environment, such as by knowingly allowing discriminatory practices to persist, without taking action to intervene. For example, if the Board of Directors becomes aware that Neighbor A is harassing Neighbor B about Neighbor B’s status as a transgender individual, the association may have a duty to stop this behavior by issuing a notice or fine.

 

TAKEAWAYS

Fair housing laws apply to condos and homeowners associations in much the same way they apply to realtors or landlords. As of June 2020, these laws prohibit discrimination based on one’s gender or sexual identity, in addition to race, ethnicity, religion, familial status, military status, and disability.

In addition to not enacting anti-gay policies or similar acts of explicit discrimination, condo and HOA Boards should be wary of any reports of discrimination in their community. To protect against potential fair housing liability, we suggest that HOAs/condos seek the help of an attorney familiar with fair housing laws as they apply to community associations. An experienced attorney can help spot instances that grow to the level of illegal discrimination and may advise the Board how best to fulfill its duties under applicable law. Not only will this protect the association from potentially costly litigation and enforcement, but it will also help to maintain a safe and peaceable community.

 

The EQUES Law Group has one of the few Ohio HOA and condo law experts on our team, Lindsey Wrubel. We are well-practiced and well-equipped to advise our community association clients on all matters relating to housing discrimination and to defend against potential liability.

 

Madeline Anich

Junior Associate

EQUES Law Group

2 thoughts on “Pride in Fair Housing”

  1. If an associations board is made aware of a resident selling a condominium unit and possibly discriminating against the a person in the LGBTQ community, what action should that board take?

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