The Paletz Law Blog

The Changing Definition of Sex Discrimination Under the Fair Housing Act

The past few years have seen issues relating to sex under close examination in society. Most frequently, as they relate to the entertainment, political and media industries. Regardless of your political, religious or ideological perspective, it is important for landlords and property managers to understand the current state of housing laws and how they too are being impacted by this evaluation of the definition of sex.

Remember that the traditional guidelines of sex discrimination still apply, namely that a landlord cannot seek a male tenant over a female tenant (or vice versa), exclude an individual based merely upon their sex, and/or give certain preferential treatment or accessibility based upon sex. However, the law as it was originally drafted is silent with respect to how gender identity issues may impact the definition of sex. Traditionally, the terms “sex” and “gender” have often been synonymous, but this has recently been subject to significant debate.

LGBT

It has been ruled that gender and sexual orientation issues, commonly referred to as LGBT (Lesbian, Gay, Bisexual, and Transgender), are protected under sex. This means, for example, that same-sex applicants must be granted the same availability of units as a male-female couple, and this applies whether the couple is married or unmarried. Although this issue has yet to reach some of the highest courts, a federal district court recently ruled in favor of extending the definition of sex under the Fair Housing Act to include the LGBT community.[1]

Further, the Michigan Department of Civil Rights (MDCR) has also extended this protection. This is, however, despite the current MI Attorney General’s position that they lack the authority to do so.[2] Until there is further clarity on the issue, we have advised our clients to continue to err on the side of caution and consider members of the LGBT community as protected by sex, since the MDCR is the entity that would most likely be pursuing any such discrimination claims. Moreover, the results of next month’s elections in Michigan may impact the viewpoint of the Attorney General’s office as well.

Also, it was recently reported that certain federal agencies are considering formally defining “gender” in the law, which could have an impact on how Fair Housing defines it.[3] Regardless though, until more formal guidelines come out with respect to how these developments affect housing, tread cautiously on these issues. As always, if there is a specific case that needs attention, contact the attorneys at Paletz Law so that an individual assessment can be made.

Sexual Harassment

Beyond gender, another way that protections relating to sex have become more noteworthy recently are based on how they prohibit sexual harassment in the landlord/tenant relationship, as this is also protected under sex for Fair Housing purposes. Although most landlords are certainly aware of the general principles outlined below, they should be re-emphasized in training, especially since the United States Department of Justice (DOJ) has an initiative geared toward eliminating this conduct in housing.[4] Even though these instances are few and far between, continued education on these guidelines will help in promoting a positive environment for tenants as well as staff in light of the extended definition of sex. Some practice tips are:

• No quid pro quo: A landlord cannot offer rental credits or any other special treatment to a tenant in exchange for any type of sexual or romantic activity.
• Landlords cannot make unwanted sexual advances upon tenants (or other employees) or tolerate this type of behavior from any of their employees.
• Likewise, landlords cannot retaliate against tenants who reject these advances, as this will subject them to severe penalties under Fair Housing.

 The Bottom Line: Landlords and Property Owners would be wise to take lessons that can be gleaned from recent headlines. To do this, implement procedures that relate to treating members of the LGBT community, as well as guidelines for appropriate conduct between employees not only amongst each other, but within the tenant community as a whole.

[1] https://www.washingtonpost.com/news/morning-mix/wp/2017/04/06/federal-fair-housing-law-protects-lgbt-couples-court-rules-for-first-time/?noredirect=on&utm_term=.9cf14c704ffa

[2] https://www.freep.com/story/news/local/michigan/2018/07/20/schuette-michigan-law-lgbt-discrimination/809538002/

[3] https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-administration-sex-definition.html

[4] https://www.justice.gov/crt/sexual-harassment-housing-initiative