HIV/AIDS Discrimination and Fair Housing

By Andres A. Portela

In a 2012 fair housing case, Short v. Manhattan Apts, Keith Short, an individual with HIV/AIDS was awarded $23,100 after proving he was a victim of disability-related housing discrimination. Mr. Short, who has HIV/AIDS, planned to pay his rent using his Housing Opportunities for Persons With AIDS (HOPWA)voucher. HOPWA is a federally funded program dedicated to assisting persons affected by HIV/AIDS. Leasing agents at Manhattan Apartments in New York City refused to rent an apartment to Mr. Short. Their stated reasoning for denying Mr. Short  was the HOPWA voucher. They did not accept such forms of income in their complex. Side note, source of income is not a protected class federally. As it turns out though, fair housing testing showed that they were actually discriminating against Mr. Short for having HIV/AIDS, a medical condition that qualifies him as disabled under fair housing laws.

“We are gratified that the judge recognized the tragedy of discriminating against persons living with HIV/AIDS. Discrimination in housing should never be tolerated” stated Diane Houk, an attorney for the individuals with HIV/AIDS.

This is a clear example of discrimination under the basis of disability as defined as the Fair Housing Act (FHA).

The FHA prohibits discrimination against individuals with disabilities, which includes HIV/AIDS, and are enforceable in the following situations; during the sale or rental of housing (such as apartments, nursing homes, assisted living facilities, shelters, student housing, portable housing), and in other residential real estates; contextually under the merit of disability. It is therefore illegal to discriminate against a person in housing because: (1) that person has HIV/AIDS; (2) a person has family members or visitors who have HIV/AIDS; or (3) a person is erroneously thought to have HIV/AIDS, even if they do not.

According to the World Health Organization (WHO), nearly 32 million people are currently living with HIV/AIDS; 10 percent reside in the United States as of 2017. That means 1 in every 7 people we encounter has this disability, and 50% have been victims of discrimination of some sort, not just in housing, due to their HIV/AIDS status, according to Advert, an HIV/AIDS education publication.

The goal is to ensure that those who have HIV/AIDS no longer have to face discrimination in housing. For more information on HOPWA and social services that provide supports to people living with HIV/AIDS, click here to see your states representative.

Also, Southern Arizona AIDS Foundation (SAAF) will be marking its 30th year of the AIDSWALK Tucson Sunday, October 14, 2018. Walkers will be fundraising for care services, prevention programs, LGBTQ initiatives, and education.  

For more information on the AIDSWALK Tucson, click here. If you are a victim of housing discrimination based on disabilities, click here.

Families Need Not Apply!

By: Tasha Lynch

On July 13, 2018, Southwest Fair Housing Council assisted a young family in filing a complaint against a licensed real estate agent who was renting a townhome in Mesa, Arizona. The complaint was conciliated for $15,000.00.

The couple contacted SWFHC to ask about occupancy standards because they had recently given birth to their fourth child and were moving from their current residence. While explaining HUD occupancy guidelines, SWFHC discovered that the couple had previously found a three-bedroom townhome for rent in Mesa, AZ, near the husband’s employment and children’s schools. They had inquired with the listed realtor (who also owns the unit) about the availability of the housing but were told, through email, that 6 people would be too many for the townhome. The couple emailed back to clarify that four of the occupants would be children, and the realtor responded that he did not want children living in the home.

The Fair Housing Act protects families from being denied housing due to the presence of children in their home. Families cannot be denied housing, steered to certain areas of a property, offered different terms and conditions, or forced to comply with too restrictive of occupancy standards. As a general rule, HUD allows for occupancy to be limited to 2 people per bedroom, plus one person, to occupy an alternative space, such as an office or living room. More about HUD occupancy guidelines can be found in the Keating Memo. Local jurisdictions and housing providers can allow for more occupants to reside in a household, but it is considered unlawful under the Fair Housing Act to be more restrictive than the HUD guidelines.

When the realtor told the couple that he did not want children in the home, they did not realize the Fair Housing Act could protect them. They were forced to find other housing, which was more expensive, resulting in the wife returning to work as well and unexpected childcare costs. Their challenges highlight why Fair Housing Act protections are so important. When protected class individuals are denied free housing choice, their options become limited and every aspect of their life can consequentially be impacted.

After calling SWFHC and realizing what the realtor had told them was wrong, the couple found the emails the realtor had sent them and worked with SWFHC to file a complaint. All parties entered a conciliation agreement which provided $15,000.00 relief to the couple. The realtor will need to attend an approved three-hour fair housing class and provide his rental advertisements to HUD for review for the next three years.

Prepare for Disparate Impact

By: Jeremy Gonzalez

Secretary Ben Carson and the Department of Housing and Urban Development (HUD) will be reanalyzing the 2013 Disparate Impact Rule implemented during the Obama administration. The disparate impact rule allows fair housing advocates, such as SWFHC, to bring lawsuits against housing providers for discriminatory rules, policies, or procedures that look neutral and not intentionally discriminatory but that ultimately disproportionately affect one or more protected class. 

The legitimacy of using disparate impact as a basis for Fair Housing lawsuits was asserted in 2015 when the Supreme Court upheld the argument as valid by a slim 5-4 vote. In the benchmark case, Texas Department of Housing & Community Affairs v. The Inclusive Communities Project(ICP), Inc, the plaintiff argued that the Texas Department of Housing & Community Affairs(TDHCA) perpetuated "segregated housing patterns by allocating too many tax credits to [developing low income] housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods." In other words, it was the duty of the TDHCA to ensure that low income housing was being distributed equally throughout the community and not just in high poverty areas. Ultimately, this case illuminates the need for analyzing the disparate impacts, not just the intent, of certain policies and procedures. Tackling systemic inequality like that seen in TDHCA vs. Inclusive Communitiescase is only possible if fair housing advocates can use disparate impact. 

Before fair housing advocates were able to argue disparate impact in their lawsuits, cases of discrimination were argued on an individual basis, and purely based on the intent of a certain policy. So, for instance, let’s say a person files a lawsuit against housing providers alleging she is being treated differently because she is a member of a protected class. In this case, discrimination will be taken at face value and only viewed in light of damage and discrimination against that specific individual. Such a limited view of discrimination fails to account for more ambiguous, systemic forms of housing discrimination. 

Disparate impact essentially allows fair housing advocates to tackle cases of housing discrimination that take place at a systemic level, looking at policies and practices that affect entire populations. For example, the recent change rendering blanket bans on people with criminal convictions from living in a community is now potentially moot. The whole argument that HUD makes in their 2016 guidance about the use of criminal histories in our housing application processes is predicated upon this idea of disparate impact being real and enforceable. Policies banning people with convictions from living in an apartment complex have a disparate impact on people of color and people with disabilities. If indeed HUD changes our ability to use “disparate impact” as a concept and line of argumentation in court, fair housing advocates will have less opportunity to make those systems-level changes desperately needed within our housing market.