Landlords, Take Note: You Cannot Discriminate Against Housing Applicants

November 10, 2016 Posted in Landlord/Tenant Law Share

In the state of New York, housing applicants are protected from discrimination under applicable federal, state, and local fair housing laws.  Though a landlord may reject a housing applicant on the basis of certain limited criteria, a landlord may not deny an individual the right to purchase or rent housing on the basis of statutorily-defined discrimination criteria.

Discriminatory Criteria

New York applicants are protected from housing discrimination under the federal Fair Housing Act, the New York State Human Rights Law, and applicable local housing regulations. With that said, it is important for landlords to know and understand that it is illegal to discriminate against an applicant on the basis of the following criteria:

Federal Criteria

• Race
• Color
• National Origin
• Religion
• Disability
• Sex
• Familial Status

State Criteria (additional)

• Creed
• Age
• Sexual Orientation
• Marital Status
• Military Status

Local Criteria (additional)

Whether additional local discriminatory criteria apply depends entirely on the city.  In some cities, local housing discrimination laws offer protection on the basis of citizenship, gender identity, public assistance status, income source, among other criteria.

Please note, if you have subjected an applicant (or a tenant) to discrimination on the basis of any of the above-mentioned criteria, you may be found to have violated fair housing laws.

What Constitutes Housing Discrimination?

There are various behaviors that constitute housing discrimination.  Discrimination does not necessarily entail direct, flagrant action, like refusing to rent an apartment to a tenant because said tenant practices a particular religion.  In fact, housing discrimination often takes on a more evasive, subtle form, and may begin well after an applicant becomes a tenant.

For example, some landlords might offer a more restrictive rental agreement when compared to other similarly-situated tenants, or they may be found to have provided unsatisfactory services while providing other similarly-situated tenants with satisfactory services. Additionally, some landlords engage in harassment to various degrees of subtlety.  Further, in some instances, a landlord can be found in violation of fair housing laws if he or she fails to prevent tenants (who have discriminatory intent) from harassing each other.

To put it simply, discrimination does not always play out in a manner that is initially combative.  It can be pervasive, slow, and unintentional, but may ultimately have the effect of discrimination.

Further, on April 4, 2016, the U.S. Department of Housing and Urban Development (hereafter “HUD”) released “guidance” on criminal background checks and the Fair Housing Act.  This advisory opinion describes that arrest, conviction, and criminal background statistics are all largely disproportionate in terms of race. 

Therefore, criminal background checks are being reviewed as having a potential “disparate impact” (Fair Housing Act definition meaning “unintentional” impact) on this protected class, regardless of whether a background check policy is non-discriminatory on its face.  The advisory opinion provides HUD’s analysis of a potential discrimination claim concerning discrimination in criminal background checks.  While this opinion is not law per se, it is still largely persuasive to courts.

To deny someone because of a criminal background check, the landlord must narrowly tailor his policy to deny only those severe cases in which danger could be imminent to the community.  This means that the landlord must essentially conduct a case-by-case review of the results of the background check, and, if the landlord is successful in justifying his policy against the strict scrutiny of HUD’s advisory opinion, the landlord must also prove that the policy has the least discriminatory effect possible. 

In order to comply with the Fair Housing Act, landlords must now consider additional information such as the date the crime was committed, the severity of the crime, the circumstances surrounding the crime, the age of the individual when he or she committed the crime, the tenant’s prior history as a tenant, and any evidence of rehabilitation efforts. 

There is one narrow exception (commonly known as the Landlord’s Safe Harbor Provision) to this general analysis.  Should the landlord find that a prospective tenant has been convicted of a crime related to the distribution or manufacturing of drugs, the landlord may reject the tenant, in accordance with the Fair Housing Act.  However, the HUD advisory opinion states that this does not apply to instances involving mere possession of drugs. 

Landlord Powers and Exceptions

The good news is that landlords are not completely without rights under the law when it comes to selecting potential tenants.  New York landlords are free to reject applicants on the basis of non-discriminatory criteria.  For instance, they may reject applicants on the basis of bad credit, criminal conviction history, pet ownership, references, or if they simply feel – again, on the basis of non-discriminatory criteria – that the applicant would not be a good fit.

New York goes a step further, however, and effectively allows landlords to discriminate against applicants if the housing arrangement meets certain statutory requirements.  Specifically, the fair housing laws preventing discrimination against applicants does not apply to: 1) a single-or-double family building occupied by the landlord; 2) a room rental in housing that the landlord directly occupies (such as a house or an apartment); and 3) housing meant to serve men or women only.

As a New York landlord, if you have subjected an individual to housing discrimination, you may be required to pay damages.  In addition, the complainant could ultimately decide to file a civil lawsuit against you, the landlord.

Dealing with the complications of New York landlord-tenant law and housing discrimination can be an overwhelming experience -- particularly if you are a new landlord.  Let the skilled attorneys at Griffin Alexander, P.C. assist you. Contact us today.

Schedule a Consultation