How Does California’s Fair Employment and Housing Act Help Renters Fight Housing Discrimination?
By Aser G. Tolentino, Esq.
When most people think about the height of the Civil Rights Movement, they tend to think of the 1960s and 1970s, when protests, civil unrest, and some of the most iconic progressive voices in American history ushered in a wave of federal laws guaranteeing equal treatment under the law on the basis of race, gender, and disability. For Californians, though, equal rights and freedom from discrimination had been the law of the land for several years. Among California’s achievements in this area was the Fair Employment and Housing Act (FEHA), which was enacted in 1959.
While FEHA deals with both employment and housing, the part most relevant to renters is Government Code section 12921(b), which states, “The opportunity to seek, obtain, and hold housing without discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, veteran or military status, genetic information, or any other basis prohibited by Section 51 of the Civil Code is hereby recognized as and declared to be a civil right.” This means that in California, the right to obtain housing cannot be denied because a person belongs to a group described above. The characteristics protected by the law are explained in Section 12926, which defines many terms used in the act.
According to Section 12927(c), discrimination includes each of the following acts:
- Refusal to sell, rent, or lease housing accommodations.
- Refusal to negotiate for the sale, rental, or lease of housing accommodations.
- Representation that a housing accommodation is not available for inspection, sale, or rental when that housing accommodation is in fact so available.
- Any other denial or withholding of housing accommodations.
- Provision of inferior terms, conditions, privileges, facilities, or services in connection with those housing accommodations.
- Harassment in connection with those housing accommodations.
- Cancellation or termination of a sale or rental agreement.
- Provision of segregated or separated housing accommodations.
- Refusal to permit, at the expense of the disabled person, reasonable modifications of existing premises occupied or to be occupied by the disabled person, if the modifications may be necessary to afford the disabled person full enjoyment of the premises, except that, in the case of a rental, the landlord may, where it is reasonable to do so condition permission for a modification on the renter’s agreeing to restore the interior of the premises to the condition that existed before the modification (other than for reasonable wear and tear), and includes refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.
The part of the law that makes housing discrimination unlawful is Section 12955, which prohibits more than just discrimination and harassment by landlords. It actually makes all of the following acts unlawful:
- Discriminating against or harassing any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, veteran or military status, or genetic information of that person.
- Asking about a potential renter or buyer’s membership in a protected class listed in the act.
- Advertising a preference against a potential renter or buyer based on their being a member of a protected class listed in the act.
- Discriminating against someone because they belong to a protected class listed in the act.
- Harassing, evicting, or in any other way retaliating against someone for acting to protect their rights under the act.
- Helping or convincing someone else to do anything illegal under the act or attempting to do so.
- Profiting by having someone sell or rent a property by representing to them that people belonging to a protected class are moving into an area.
- Denying real estate or appraisal services or offering them on different terms based on a person’s belonging to a protected class listed in the act.
- Denying someone access to or participation in real estate services or organizations based on their belonging to a protected class listed in the act.
- Any other method of making a home unavailable to someone based on their being a member of the protected classes listed in the act.
- Discriminating in how to use or allow land to be used based on the protected classes listed in the act.
- Creating or maintaining a limitation on the use of land by contract called a “restrictive covenant,” based on protected classes listed in the act.
- Counting the income of applicants who will be living together differently depending on whether they are married or not when deciding if they can afford to rent their home.
- Using an income standard that assumes an applicant will be responsible for paying more than the share required if they are receiving rental assistance from a government program to decide whether they can afford to pay to rent their home.
Is This Legal?
Here are a few examples of what might be considered FEHA violations.
Example 1. Alice is an elderly first-generation Filipino American living in an eighty-year-old apartment building. With the help of a friend to translate, she calls her property manager and reports that her lights keep flickering and sometimes the circuit breaker trips when she tries to use her microwave. He comments that he would have thought Alice would be used to that kind of thing given where she’s from and that she can’t expect too much given what she’s paying in rent. She sees the property manager with an electrician in the building several times in the next few weeks working on other maintenance requests on behalf of native English speakers who she knows were born in the United States. When the property manager comes to Alice’s unit with an electrician a month later, he says he had more important requests to deal with before hers. Alice may be able to raise claims based on national origin at the very least, and, potentially, race and ancestry depending on the facts under Section 12955(a).
Example 2. After her landlord denies her request for an emotional support animal as a reasonable accommodation, Laura files a complaint with the California Civil Rights Department (CRD). After the landlord is informed of her complaint, he tells her that her lease will not be renewed. She may raise a claim under § 12955(f).
Example 3. Amy is talking to a realtor friend Cynthia about plans for Amy’s townhouse. Cynthia tells Amy, “You really should think about selling, because I hear the apartment building across the street is going to start taking Section 8 tenants.” Amy hires Cynthia to sell her townhouse, from which Cynthia earns a commission. This violates Section 12955(h) because Cynthia is profiting by making low-income tenants seem undesirable. This is a practice known as “Blockbusting,” which was particularly widespread after World War II and which did tremendous damage to America’s cities.
Example 4. Al and Amelia are looking into moving in together before they get married. Together they make $150,000.00 a year. They submit an application to rent a house and are told by the landlord that they do not meet income requirements. Coincidentally, Al speaks to his coworker Andrea who says she just got approved to move into the same house with her husband. Al knows that Andrea makes $150,000.00 and her husband raises their two kids. This would be an example of discrimination based on Section 12955(n), which states that you cannot evaluate people’s incomes differently based on whether they are married.
Fighting Back Against Discrimination or Harassment
Tenants who believe they have been the victim of housing discrimination have two possible paths forward: an administrative complaint or a civil lawsuit. Regardless of which option they choose, it is important to create a paper trail and document the situation as much as possible. Providing the wrongdoer, or especially the wrongdoer’s supervisor (if applicable), with written complaints about the suspected discrimination or harassment would help support any claim in the future and might actually resolve the issue. Obtaining photos or videos of illegal behavior could also be immensely helpful, though one should be careful to ensure that no one is recorded without their knowledge, as that is illegal in California. Having witnesses willing to testify to seeing or hearing discriminatory or harassing behavior can also support a case that might otherwise just be a contest in believability between two parties.
It also is important to remember that time is of the essence. A person who has suffered discrimination must bring a lawsuit within two years under what is known as the statute of limitations. That two-year limit is paused if the tenant files a complaint for administrative relief.
On the subject of administrative relief, Californians may turn to the California Civil Rights Department (CRD) when they believe they have been subjected to discrimination. Complaints can be submitted online. Once submitted, complaints are assigned to an investigator who reaches out to the parties and attempts to find a resolution. CRD can take cases to arbitration, but their most effective tools are often the mediation process.
For tenants who want to pursue money damages from the landlord, a civil lawsuit is probably more straightforward. This involves filing a complaint in civil court, usually with the help of a lawyer, and claiming damages beyond those owed from the landlord’s violation of FEHA. In most cases, landlords who have violated FEHA have probably also broken other laws. For example, landlords in violation of FEHA will almost certainly have interfered with their tenant’s peaceful use of their rental unit for its intended purpose, which breaches the covenant of quiet enjoyment discussed in a previous newsletter. And by breaking a law that protects tenants from harassment, landlords in violation of FEHA will have a hard time arguing they were not at least negligent in performing their work as landlords.
Whichever route a tenant takes, speaking with a tenant rights attorney is always a good idea to review options and make an informed decision about how best to proceed. Tenant Law Group has helped many clients through this process through attorney consultations and has brought lawsuits across the state against landlords for violating FEHA. Tenant Law Group offers attorney consultations for a fee, and representation in the pursuit of claims on a contingency fee basis with no upfront cost.
Housing is a civil right and Tenant Law Group is always ready to help tenants defend their own.