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Wednesday, March 7, 2012

The Fair Housing Act (FHA): A Legal Overview

Jody Feder
Legislative Attorney

The Fair Housing Act (FHA) was enacted “to provide, within constitutional limitations, for fair  housing throughout the United States.” The original 1968 act prohibited discrimination on the  basis of “race, color, religion, or national origin” in the sale or rental of housing, the financing of  housing, or the provision of brokerage services. In 1974, the act was amended to add sex  discrimination to the list of prohibited activities. Likewise, in 1988 the act was amended to  prohibit discrimination on the additional grounds of physical and mental handicap, as well as  familial status.  

Although the FHA has been amended by a series of other laws in recent years, there has not been a major overhaul of the act since 1988. However, legislation that would amend the FHA is  routinely introduced, including H.R. 3030/S. 1605 in the 112th Congress. This proposed  legislation would, among other things, amend the FHA to prohibit discrimination on the basis of  sexual orientation, gender identity, marital status, or source of income.  

The FHA may be enforced in varying ways by the Attorney General, by the Department of  Housing and Urban Development (HUD), and by victims of discrimination. The acts coverage  has been extended to “residential real estate-related transactions,” which include both the  “making [and] purchasing of loans ... secured by residential real estate [and] the selling,  brokering, or appraising of residential real property.” Thus, the provisions of the FHA extend to  the secondary mortgage market.  

In general, the FHA applies to all sorts of housing, public and private, including single family  homes, apartments, condominiums, mobile homes, and others. However, the act includes some  exemptions. For example, the FHA does not “limit[] the applicability of any reasonable local,  State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.”  

Recently, the Supreme Court granted review in Magner v. Gallagher, a case that involved the  question of whether individuals may bring disparate impact claims under the FHA. Shortly  thereafter, HUD issued proposed regulations that would formally prohibit practices that have a  discriminatory effect, as well as establish uniform standards for determining when such practices violate the FHA. Subsequently, Magner v. Gallagher was dismissed per agreement of the parties  involved in the case.

Date of Report: February 10, 2012
Number of Pages: 19
Order Number: 95-710
Price: $29.95

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