FAIR HOUSING - PART 1: What Are The Protected Classes?

A large part of my law practice involves meeting with and consulting landlords and management companies on how to avoid disputes. This would include assisting them with drafting rental documents and guiding them on the proper notice to terminate a tenancy. It also includes consulting with clients regarding fair housing/discrimination issues.

I enjoy this consulting work because it typically occurs before the landlord is embroiled in a dispute or litigation; as a result, my client tends to be in a better mood at the consulting stage, which puts me in a better mood as well.

Recently, I have had many calls about discrimination and fair housing, so I plan to devote several posts to these topics.

The easiest place to start is to identify the protected classes under Federal and Wisconsin law.

Federal law (which starts at 42 U.S.C. 3601 et. seq.) has 7 protected classes, which are:

1. Race

2. Color

3. National Origin

4. Sex

5. Religion

6. Familial Status

7. Handicap

Wisconsin law (which is found at §106.50(1), Wis. Stats) also includes the above 7 protected classes, plus adds an additional 5 more, which include:

1. Marital Status

2. Sexual Orientation

3. Lawful Source of Income

4. Ancestry

5. Age (18 years and older)

It is important for managers and owners to also check their local municipal ordinances, as some municipalities have added protected classes. The city of Madison, for instance, also treats convicted criminals, students, and a person’s physical appearance as additional protected classes. You can read more about the City of Madison municipal code - Ch. 32 entitled Landlord and Tenant here.

So if you make a housing decision based on a person’s membership in a protected class, you may have discriminated against them. Discrimination in housing covers a wide range of activities such as: refusing to rent to, refusing to discuss rental terms with, refusing to allow the inspection of rental housing, refusing to renew a lease, causing the eviction of, misrepresenting the availability of rental housing, applying different terms or standards, and engaging in harassment, intimidation, or coercion of. There are many more, but you get the general idea.

It is important to remember that a landlord need not intend to discriminate to be found to have engaged in discrimination. Also, be aware that most insurance policies do not cover an owner’s or manager's discriminatory acts.

Remember that just because someone is a member of a protected class does not mean that you cannot deny them rental or evict them. It only becomes discrimination if you do the above because they are members of a protected class. If you deny a person rental or file an eviction action against an individual for reasons unrelated to their protected class status, you are not discriminating against them. For example, if a person does not meet your screening criteria because they have been evicted in the past, have no prior rental history, or their gross monthly income is not 3 times the monthly rent (or some other legal screening criteria that you have in place) then it is not discrimination to deny that person rental even though they may also be a member of a protected class.