CHAPTER III: HOUSING
The Fair Employment and Housing Act and The Unruh Civil Rights Act
California law guarantees you the right to be free from any form of arbitrary discrimination in housing accommodations. The California Legislature has declared that discrimination in housing is against the public policy of the State of California.
The Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., specifically prohibits housing discrimination on the basis of race, color, religion, sex, marital status, national origin, or ancestry. The Unruh Civil Rights Act, Civil Code section 51, prohibits discrimination in housing based on any arbitrary classification, including those covered by the The Unruh Act prohibits arbitrary discrimination in "all business establishments of every kind whatsoever." This provision has been interpreted to include businesses and persons engaged in the sale or rental of housing accommodations. The Act's language specifically prohibits discrimination on the basis of race, color, religion, sex, marital status, national origin, ancestry, blindness, or other physical disability. However, the Unruh Act, unlike the FEHA, has been judicially construed to apply to arbitrary discrimination other than those specifically mentioned in the Act. The Act, for example, has been held to prohibit discrimination against persons based upon their sexual orientation or age, or against families with children. Furthermore, the Unruh Act, like the FEHA, prohibits discrimination against persons who associate with a member of a protected class.
The FEHA and the Unruh Civil Rights Act can be enforced against any owner, lessor, sublessor, assignor, managing agent, real estate broker, salesperson, or any person having the legal right of ownership or the legal right to rent a housing accommodation.
The provisions of the FEHA are applicable to any real property used or occupied as a home, residence, or sleeping place of one or more persons. However, it does not apply to renting a portion of a single-family, owner-occupied house to one person.
The Unruh Act covers any form of housing which can be termed a "business establishment." This term has been liberally construed by the courts to include virtually every type of housing accommodation. For example, the Unruh Act has been held to apply to the following categories: Operators of motels and hotels; real estate brokers, agents or anyone else engaged in the sale or rental of real property; owners of triplexes, duplexes, non-owner occupied, single-family dwellings or publicly assisted housing projects; operators of mobile home parks; and condominium homeowners associations.
The following is a partial listing of housing practices prohibited by the FEHA and the Unruh Act. It is unlawful:
Procedures to Follow and Remedies Available
You can enforce your rights under the FEHA or Unruh Act either by filing a claim with the DFEH or by filing a private lawsuit. By filing a complaint with the DFEH, you will be initiating an administrative process in essentially the same way you would when filing a complaint with that department for employment discrimination. If your housing claim is based upon the FEHA, you must file your complaint with the DFEH within 60 days of the alleged unlawful discriminatory act. If your claim is based upon the Unruh Act and you want to initiate the administrative process, you have one year from the date of the alleged discriminatory act to file your complaint with the DFEH. In order to avoid any problem concerning timeliness, you should file your complaint immediately.
Whether your claim is based upon the Unruh Act or the FEHA, the DFEH will investigate your complaint to determine its validity. If it is valid, the DFEH will attempt to settle the matter. If it is unable to settle the dispute, the DFEH may bring an admi nistrative action against the person or entity who violated your rights. The DFEH will also issue a "right to sue" letter which authorizes you to file a private action in court. You should also note that in order to bring your own FEHA lawsuit, you must first secure a "right to sue" letter.
If your claim is based upon the Unruh Act, however, unlike claims based upon the FEHA, you do not have to wait for the "right to sue" letter to bring a private lawsuit. In fact, if you want to file a private action, you need not file a complaint with the DFEH at all. You should note that if you file a private lawsuit, the DFEH will not act on your Unruh Act complaint.
Remedies available from the Fair Employment and Housing Commission in FEHA administrative actions for housing discrimination include orders requiring the sale or rental of the housing accommodation if it is still available, payment of actual compensatory damages, and payment of punitive damages. Remedies available in private actions brought to enforce your rights depend upon whether it is an Unruh Act or FEHA claim. Remedies available in private Unruh Act actions include actual damages, a penalty of up to three times the amount of actual damages, injunctive relief, and attorney fees. Private FEHA actions would provide you with at least the same remedies available in administrative actions.
Finally, it should be noted that under certain circumstances, the Attorney General, or your local district or city attorney, may bring actions to correct housing violations under the FEHA and/or the Unruh Civil Rights Act. While FEHA and Unruh Act housing violations ordinarily should be reported to the DFEH, if there is reasonable cause to believe that a person or group is engaged in a pattern or practice of violating the housing rights protected by the Unruh Act, you should report such activity to the Attorney General's Public Inquiry Unit or to your local district or city attorney. You can write the Public Inquiry Unit at the number and address provided at the beginning of this pamphlet.
Miscellaneous State Statutes Prohibiting Discrimination in Housing
These additional state statutory references also concern unlawful housing discrimination.
1. Civil Code sections 51.2, 51.3, and 51.4 recognize the need for specially designed accessible housing for senior citizens, and establish age limitations and other qualifications for legitimate senior citizen housing developments.
2. Civil Code section 53 prohibits discriminatory restrictions in written instruments which attempt to restrict the conveyance, encumbrance, leasing, or mortgaging of real property to any person on the basis of sex, race, color, religion, ancestry, national origin, or blindness or other physical disability.
3. Civil Code section 54.1 declares that blind persons, visually handicapped persons, deaf persons, and other physically disabled persons are entitled to full and equal access to all housing accommodations offered for rent, lease, or compensation.
4. Civil Code sections 782 and 782.5 void discriminatory restrictions based on race, nationality or ethnic group, or color in deeds or other written instruments related to the transfer of real property.
5. Health and Safety Code section 33050 is a legislative declaration of policy against discrimination in the undertaking of community redevelopment projects based on race, color, religion, sex, marital status, national origin, or ancestry.
6. Health and Safety Code section 33769 requires that any residence constructed with funds obtained through or with the assistance of a redevelopment agency be available without regard to race, color, religion, national origin, or ancestry.
7. Health and Safety Code section 37923 requires that residences constructed or rehabilitated with community development funds be open to all without discrimination on the basis of race, color, religion, national origin, or ancestry.
The Federal Fair Housing Act and 42 U.S.C. Section 1982
Title VIII of the Civil Rights Act of 1968, the Federal Fair Housing Act (FFHA), 42 U.S.C. section 3601 et seq., also reaffirms and protects your right to fair housing. The FFHA prohibits discrimination in the selling or rental of housing accommodations on the basis of race, color, religion, sex, familial status (families with children), handicap, or national origin. The FFHA applies to most dwellings, private or public, except for owner-occupied dwellings with four units or less. Furthermore, the FFHA is applicable to all dwellings owned and operated by the federal government, dwellings financed in whole or in part through loans or grants made by the federal government, and dwellings provided in whole or in part by loans insured, guaranteed or otherwise secured by the federal government. Religious institutions operating non-commercial housing may limit sale or rental to persons of the same religion, and housing specifically designed for older persons is permitted.
Additionally, the FFHA prohibits discrimination by financial institutions in the making of commercial real estate loans, and prohibits anyone from discriminating in the provision of real estate broker or appraisal services.
The authority and responsibility for administering the provisions of the FFHA lies with the federal Secretary of Housing and Urban Development. For more information concerning your rights and remedies under the FFHA, you should contact your local office of the Department of Housing and Urban Development (HUD). You should note that if you believe that you have a claim under the FFHA, you must file a written complaint within one year of the alleged discriminatory act. HUD will investigate your complaint, attempt to resolve it by conciliation, and, if necessary, proceed to have the matter heard either in court or in an administrative hearing. After an administrative hearing, actual damages and injunctive relief may be awarded as well as a civil penalty of up to $50,000. You may also file an action directly in court, without first filing with HUD, and you may recover actual and punitive damages, injunctive relief, and reasonable attorney fees.
In addition to the FFHA, 42 U.S.C. section 1982 also prohibits discrimination in the area of housing. Section 1982 states: "All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." Thus, section 1982 bars all racial discrimination, private as well as public, in the sale or rental of property.
Although section 1982 and the FFHA share the same goals, the two federal remedies do differ in a few significant respects. First, section 1982 only prohibits discrimination based upon color or race, whereas the FFHA applies more broadly. Second, section 1982 is enforceable only through private action, while the FFHA establishes an administrative scheme. Lastly, while section 1982 is generally limited to discrimination in the sale or rental of property, the FFHA extends to other specific areas of possible discrimination, such as discrimination in the provision of brokerage services. A section 1982 action, like a 42 U.S.C. section 1981 claim, can be brought in either state or federal court, and you do not need to file an FFHA claim before you file a section 1982 court action.
For the full version of this publication, please feel free to contact:
The Office of The Attorney General
Public Inquiry Unit
PO Box 944255
Sacramento, CA 94244-2550
(800) 952-5225 (in California)