The Civil Rights Act of 1968, a landmark law passed to expand upon protections against discrimination passed by Congress four years prior, contains a set of housing-related provisions commonly known as the Fair Housing Act. This legislation provided federal enforcement mechanisms against prohibited discrimination in housing sale, rental, and financing. The original Act’s protections were based upon race, religion, and national origin; later on, sex (1974) was added, as well as people with disabilities & families with children (1988. In 2020, the Supreme Court ruled that “sex” included discrimination based upon sexual orientation and gender identity.
One federal exemption, found under Title VIII – Fair Housing, reads as such: “Nothing in section 804… shall apply to… (2) rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.”
Under this, the landlord can discriminate based upon so-called “ideals,” but may not illuminate to the applicant the outdated reason. The exemption does not apply to discriminatory advertising for rentals or to representation of the property by real estate agents. Additionally, further case law has determined that race and color are no longer eligible for exclusion under this exemption.
Certain kinds of discrimination are allowed by the law. Though largely related to objective business criteria – for example, credit histories, ability to pay, care of properties – there are very certain circumstances where landlords are allowed to limit tenants by discriminatory terms. One such example of this is known as the “Mrs. Murphy Exemption,” nicknamed after a hypothetical scenario of an elderly widow who desires to rent out part of her home and may want to select her tenants, albeit based upon discriminatory intent.
The hypothetical was invented by Senator George D. Aiken of Vermont, which was then converted into an amendment of law by Senator John Cooper of Kentucky. Aiken’s hypothetical – a prejudiced, elderly landlord that shouldn’t trouble herself while struggling to put food on her table – does attempt to justify its own existence and illustrates one of the strengths of the amendment. The exemption creates space for property owners who are interested in small-scale participation to rent out from within their own homes, which can help ameliorate shortages and rising prices in the market.
Additionally, by allowing them to set the rules within their own homes, the exemption acknowledges the rights of property owners to make decisions about who resides within their own property. This is a necessary firewall to government imposition into private property and prevents a backslide into use of private property for public housing initiatives.
However, the exemption creates far too much space for continued discrimination of protected classes at a small scale. While some states have expanded protections for discriminated parties past the Mrs. Murphy exemption, 25 states still fully recognize and have state law that mirrors the federal exemption, and many more recognize it in a limited capacity. At status quo, small landlords across the country can still legally discriminate against renters without scrutiny on the basis of sex, national origin, religion, disability, family and marital status, and more. Additionally, with issues of race and color having been determined under further case law, there is an uneven application of fair housing standards and less protection for certain classes.
“For rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, an exception may be granted if the owner actually maintains and occupies one of such living quarters as their residence. For property owners seeking to exercise selective criteria regarding protected classes, they must apply for a federal permit through the U.S. Department of Housing and Urban Development. This permit application process will involve rigorous scrutiny of the individual circumstances and compelling justifications for any deviation from standard fair housing practices, as well as an interview with a case manager. Approval for such permits will be granted only when it is demonstrated that specific circumstances warrant a deviation from non-discrimination principles. Tenants who suspect a denial based upon a protected class have the right to request a copy of this permit, and landlords may face discrimination charges if that request is denied or the permit is unavailable.”
While it is crucial to uphold principles of non-discrimination and fair housing, the challenge is to strike a balance between preserving property rights and preventing discrimination based on protected classes. In the amended rule with the permit process, the aim is to maintain this balance by allowing property owners to exercise selective criteria but subjecting such criteria to a thorough scrutiny process to ensure they align with fair housing principles and are justified in specific circumstances.
Why must property owners maintain a right to discriminate, even a moderated one? An elderly couple who rents out may have a legitimate reason to wish that a family with young children didn’t live in the apartment below. A homeowner in a historically Chinese neighborhood may wish to maintain a Mandarin-speaking household, to prevent further gentrification of their community. The amendment still respects and acknowledges the overlapping interests and aspects of identity that property owners must consider in choosing who will join them inside their place of residence.
However, the amendment also endeavors to make sure that the Mrs. Murphy exemption isn’t applied haphazardly, as well as clarifies its limits. Scrutiny from government officials directed by prescient guidelines can help delineate between necessary particularity in property owner choice, warranted deviation from on-discrimination clauses, and unnecessary discrimination against protected classes. The above-outlined permit process would promote a more inclusive housing environment, as property owners are held accountable for their tenant selection criteria – while still ensuring that small landlords are incentivized and able to participate in the rental market.
The weakness of this amendment presents in its subjectivity – a trait that would require further narrowing and clarification of guidelines by HUD in its implementation. Additionally, allowing HUD to set the guidelines on implementation would allow for changes in standards or recommendations as administrations change. However, the potential improvements for protected classes in searching for housing far outweigh the proposed amendment’s misalignments and balance a more inclusive, accessible rental market for tenants and landlords alike.
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