HUD and REALTORS® Address Discrimination Based on Sexual Orientation in Real Estate

 Cori Lamont  |    April 07, 2010

In February, the U.S. Housing and Urban Development Department (HUD) began recruiting residents in New York, San Francisco and Chicago to participate in a brainstorming exercise to aid the government in its first study on discrimination against gays in the housing market. HUD determined a study was necessary because of the increase in the number of housing discrimination complaints by gay, lesbian, bisexual and transgendered people. The challenge for HUD is to determine how the study should be conducted. In previous federal housing studies based on discrimination, the process was more clear-cut. For example, in a study of race discrimination, the treatment by landlords, sellers and real estate licensees of different races were easily noted and compared to the treatment of Caucasians.

In its first attempt, HUD has recruited members from what it describes as three cities with a large gay population. HUD is asking for the members of this group to provide their input as to how the government should attempt to conduct such a study. HUD has also provided opportunities for individuals to e-mail or present their suggestions during webinars. In addition, HUD is also concerned about individuals being denied access to housing that is federally subsidized because of the individual’s sexual orientation and has prioritized the creation of regulations to address the issue.

In 1982 Wisconsin became the first state to pass a comprehensive statute that prohibited discrimination against sexual orientation. Since Wisconsin’s progressive step, 20 other states plus the District of Columbia have passed laws banning discrimination based on sexual orientation and/or gender identity/expression. However, in the states that do not address these groups it would be permissible for REALTORS® to discriminate in the provision of housing and real estate services based upon sexual orientation.

The WRA Equal Opportunities in Housing Committee strongly believed that the Code of Ethics of the National Association of REALTORS® (NAR) should provide that REALTORS® shall not deny equal professional services to any persons seeking to sell, buy, or rent real property based upon their sexual orientation. Therefore, the WRA Equal Opportunities Committee proposed that an amendment to Article 10 of the Code of Ethics should be sought to prohibit REALTORS® from denying equal professional services, being party to a plan or agreement to discriminate, or discrimination in real estate employment practices based upon sexual orientation.

After an August 2009 request from the committee, the WRA board of directors authorized the committee to propose the Article 10 amendment.

The NAR 2009 Equal Opportunity-Cultural Diversity Committee adopted a motion on November 13, 2009 “that NAR support equal housing opportunity on the basis of sexual orientation.” The NAR board of directors then amended NAR policy on equal housing opportunity to include opposition to discrimination based on sexual orientation. In May at the mid-year NAR meeting in Washington, D.C., the Professional Standards Committee will vote on a proposal to amend Article 10 of the Code of Ethics.

The fair housing laws were originally created at a federal level. However, over time, state law and even local ordinances have added to the list of the federally protected classes. Fair housing law makes it illegal to discriminate against protected classes in the sale and rental of housing. The 1968 federal Fair Housing Act prohibits discrimination in the sale, renting or financing of housing on the basis of race, color, religion, gender and national origin. In 1988, the Fair Housing Amendments Act created new protected classes based on handicap and familial status. Wisconsin law also includes the protected classes of sexual orientation, marital status, lawful source of income, age and ancestry.

Federal housing discrimination violations carry a maximum civil penalty of $11,000 for a first offense, in addition to the complainant’s actual damages, any injunctive relief and attorneys’ fees. Similar remedies are available to victims of discrimination under Wisconsin law.

For real estate brokers and salespersons, their licenses may also be at stake if they engage in illegal steering or if they treat “any person unequally solely because of sex, race, color, handicap, national origin, ancestry, marital status or lawful source of income.” In addition, it is a violation of real estate license law for a licensee to discriminate against any person, deny equal services to any person, or be a party to any plan or agreement to discriminate in violation of applicable federal, state or local fair housing law.

Federal fair housing protected classes

  • Race : A person’s membership in a group possessing characteristics and traits transmitted by descent.
  • Color : A person’s skin color.
  • Religion: A person’s religious or spiritual beliefs and practices, or his or her denominational affiliations.
  • Sex : Whether a person is male or female.
  • Disability : Whether a person has a physical or mental disability that substantially limits one or more major life activities, has a record of such a disability, or is regarded as having such a disability. In Wisconsin, this class includes a person using illegal drugs/controlled substances if the person is in a supervised drug rehabilitation program.
  • National origin : The country from which a person or his or her ancestors originated or came.
  • Familial/family status : Whether persons are members of families in which one or more children under 18 years old live with a parent, a person with legal custody, or the designee of the parent or legal custodian (with written permission). This class also includes pregnant women and persons seeking legal custody of a minor. Wisconsin law also includes persons seeking physical placement or visitation rights of a minor child and persons whose households include one or more adults or minors in their legal custody, or pursuant to physical placement, visitation rights or a court-ordered  guardianship.

Wisconsin fair housing protected classes

  • Ancestry : A person’s racial and ethnic background.
  • Marital status : Whether a person is single, married, divorced, separated or widowed.
  • Sexual orientation : Whether a person has a preference for heterosexuality, homosexuality or bisexuality; has a history of such preference; or is identified with such a preference.
  • Lawful source of income : The source of a person’s income, provided that it is legal.
  • Age : The age of persons at least 18 years old. Local ordinances may also be created to include additional protected classes. Madison, parts of Dane County, the City of Milwaukee and Appleton have all created additional protected classes. More specifically, some have created an additional protection for transgendered individuals because while Wisconsin law does address discrimination against sexual orientation, it does not specifically include gender identity. Therefore, in Madison and parts of Dane County Sexual Orientation (heterosexuality, homosexuality, bisexuality and gender identity) was added as a protected class. In addition, the City of Milwaukee amended its Equal Rights law to include Gender Identity or Expression (gender-related identity, appearance, expression or behavior of an individual, regardless of the individual’s assigned sex at birth) as a protected class. 

Cori Lamont is Director of Brokerage Regulation and Licensing for the WRA.

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