The Fair Housing Act prohibits discrimination in all housing-related transactions including the administration, policies, and services of nonprofit housing programs, homeless shelters, transitional housing, group homes, and housing counseling agencies on the basis of race, color, national origin, religion, sex (including sexual orientation and gender identity), familial status, and disability.
All recipients and sub-recipients of federal housing funding are responsible for holding staff accountable for complying with all Fair Housing Act requirements. Homeless shelters and nonprofit housing programs have specific responsibilities to ensure that vulnerable populations have equal access to their programs.
Nondiscriminatory Access to Programs
Homeless shelters and nonprofit housing programs must provide equal access to housing and services regardless of an individual’s race, color, national origin, religion, sex (including sexual orientation and gender identity), familial status, or disability. Individuals should neither be encouraged or discouraged from participating in a housing program or shelter based on subjective reasons or protected class. Decisions to accept or reject an applicant to the program should be based on credible, objective, verifiable criteria.
Homeless shelters and housing programs should ensure their policies and practices do not disproportionately impact protected classes. Shelter rules should not show a preference for or disproportionately exclude women, LGBTQ+ individuals, people with children, people with disabilities, or people of a particular religion, ethnicity or nationality. Even policies that are not intended to be discriminatory may violate the Fair Housing Act if they have a discriminatory effect on protected classes.
Language Services for People with Limited English Proficiency
Recipients of federal funding must comply with Title VI’s prohibition against national origin discrimination affecting people with limited English proficiency. Agencies that receive HUD funding may be required to provide translation of printed documents and/or interpretation of spoken English so that they do not inhibit the ability of those with limited English proficiency to access services and programs.
HUD guidance states that limited English proficiency and national origin are so intrinsically linked as to be almost indiscernible from each other, therefore discrimination based on limited English proficiency will be treated as national origin discrimination. While some courts have recognized that employers might have a legitimate need to require that employees speak English, such requirements are not applicable to housing, lending, or other real estate related transactions covered by the Fair Housing Act.
Access for Survivors of Domestic Violence
Programs that deny domestic violence survivors, or those with Protection from Abuse orders, violate the Fair Housing Act. Housing programs and shelters that refuse to allow a person who has experienced domestic violence to stay at a shelter due to hypothetical security concerns or the belief that the shelter is not equipped with the resources to deal with this type of trauma, are also in violation of the Fair Housing Act.
The Violence Against Women Act provides protection for individuals who have experienced domestic violence, sexual assault, or stalking, while participating in HUD funded programs. Survivors of violence cannot be denied assistance under a HUD funded program or have services terminated due to violence or abuse committed against them. Secondary factors that resulted from violence or abuse, such as an eviction record, poor credit, or criminal history or due to criminal activity directly related to the violence or abuse cannot be used as a barrier for receiving assistance. If there is a safety reason which necessitates a survivor of domestic violence to move from current housing, the Violence Against Women Act mandates emergency transfers with continued financial assistance.
Equal Treatment for Families with Children
Shelters and housing programs cannot discriminate against families with children. Families with children cannot be denied access to shelter or housing and children under the age of 18 cannot be prohibited from sharing a sleeping area with their parents. Community rules should apply to all and should not single our families with children. Families with children cannot be subjected to different rules than individuals without children such as earlier curfew or quiet hours. Program and community rules must be enforced universally and without bias. Housing programs and shelters may not segregate residents by sex, with the exception of housing which contains shared sleeping areas, bathing areas, and/or bathrooms.
Equal Access for Individuals who are LGBTQ+
HUD’s Equal Access Rule prohibits discrimination on the basis of sexual orientation, gender identity, and marital status in all HUD programs. All housing providers and programs that receive HUD funding must comply with this rule. HUD mandates that programs must allow families to stay together regardless of actual or perceived sexual orientation, gender identity, or marital status. Any group of persons presenting for assistance together, with or without children, and irrespective of age, relationship, or whether or not a member of the household has a disability must be treated as a family unit. A child who is temporarily away from the home because of placement in foster care is also considered a member of the family.
HUD mandates that equal access is to be provided in all HUD funded programs regardless of actual or perceived gender identity. Individuals must be treated in accordance with their gender identity without requirements for individuals to “prove” their gender identity. Invasive questions or medical verification of gender are prohibited. Programs must take non-discriminatory steps to address the safety and privacy concerns of transgender participants, however they cannot require that participants accept special accommodations.
No Requirements to Participate in Religious Services
Nonprofit housing providers and shelters are permitted to retain religious terms in their name and mission, but they are not permitted to have overt preferences or limitation based on religion or to discriminate against participants based on religion.
HUD forbids recipients of federal money from requiring or coercing participants to participate in religious activities as a condition for receiving temporary or permanent housing, or related services such as meals. If religious activities are offered, they must be held at a separate time and location from the HUD funded programs and participation must be voluntary.
Program Access for People with Disabilities
Homeless shelters and nonprofit housing programs are required to comply with the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act in addition to the Fair Housing Act. These laws and mandates require non-discrimination and reasonable accommodations and modifications when necessary for individuals with disabilities.
If a person with a disability needs additional support service or needs to alter a unit to accommodate a wheelchair, the shelter must consider those requests unless it imposes an undue administrative and financial burden. In the event where a requested accommodation or modification poses an undue administrative or financial burden, the housing provider must engage in an interactive dialogue with the individual and determine if there are any alternative accommodations which might meet their disability related needs.
TheAmericans with Disabilities Act prohibits discrimination based on disability in programs and activities provided by public entities (including housing related programs) and in goods, services, facilities, and privileges of places of public accommodation owned or operated by private entities. Shelters and nonprofit housing programs must ensure that their facilities are accessible to individuals with disabilities, including offering modifications to housing units or common areas as needed, and offering effective communication (such as sign language interpreters or written materials in alternative formats).
Service dogs who are individually trained to do work or perform tasks for people with disabilities must be allowed in shelters and nonprofit housing programs under the Americans with Disabilities Act. Under the Fair Housing Act, assistance animals who may not be trained to do work or perform a task but who do serve a disability related need must be allowed in dwellings that are intended for occupancy as a residence when it is reasonable and does not cause an administrative and financial burden to the housing provider.
The Fair Housing Act not only protects individuals who have a disability, it also prohibits housing discrimination based on the perception that a person has a disability or has a history of disability. Taking any action related to a participant based on fear, speculation, or stereotypes about people with disabilities or about particular types of disabilities is unlawful under the Fair Housing Act.
Fair housing laws do not require that housing be made available to persons, including those with disabilities, who would constitute a direct threat to the health or safety of others or who would constitute a risk of substantial damage to the property of others. However, even in cases of individuals who do in fact present a “direct threat” due to their disabilities, these individuals are entitled to a “direct threat assessment” and a determination whether any reasonable accommodation would mitigate any risk posed by their disability related behaviors prior to termination or eviction.
The direct threat assessment must take into account the nature and severity of the risk of injury as well as the probability that an injury will occur and whether there are any reasonable accommodations that would eliminate the direct threat. Any denial of services would have to be based on documented recent violent or disruptive behavior. The denial of services cannot be based on a diagnosis of a mental heath disability or a stereotype or fear of individuals with mental health disabilities.
Evictions or terminations from a housing program or shelter should be based on documented violations of the occupancy or program agreement or the community rules such as nonpayment of rent, destruction of property, or harassment of other residents.
Nondiscriminatory Community and Program Rules
Community rules for housing programs and shelters should be standardized, written, and communicated to all residents. Rules should not single out or target any protected class and should be enforced consistently and without bias. Reasonable accommodation requests involving exceptions to rules and policies should be carefully documented.
All shelter and nonprofit housing programs and community rules should be reviewed and evaluated for unintentional discriminatory effects and to ensure fair housing compliance. Contact the Housing Equality Center of Pennsylvania for a confidential review and assessment of your program and for technical assistance with addressing any fair housing issue your program might encounter. To request Technical Assistance, please contact us here, email us at info@equalhousing.org, or call 267-419-8918 x3
The work that provided the basis for this publication was supported by funding under a grant with the U.S. Department of Housing and Urban Development. The substance and findings of the work are dedicated to the public. The author and publisher are solely responsible for the accuracy of the statements and interpretations contained in this publication. Such interpretations do not necessarily reflect the views of the Federal Government.