Section O: Fair Housing & Civil Rights Laws

In this section…

All McKinney-Vento Act programs, including the Supportive Housing Program, are subject to a range of Federal civil rights laws which prescribe nondiscrimination requirements as well as affirmative accessibility obligations. This chapter will provide an overview of these laws, as well as highlight some of the major program issues that are affected by these laws. It will also provide citation to additional resources with more extensive information about these laws. The laws discussed in this chapter include the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and the Americans with Disabilities Act of 1990.

Grantees are strongly encouraged to become familiar with the requirements of the laws, as well as any applicable state or local civil rights laws. Applicants applying for Supportive Housing Program funds are required to certify in their Homeless Assistance application that they will comply with these Federal civil rights laws.

Note: This chapter focuses on the applicability of these laws to SHP programs. It does not provide a comprehensive overview of the applicability of these laws in all circumstances. For general information about these laws, see www.hud.gov/offices/fheo/FHLaws/index.cfm.

The Fair Housing Act

The Fair Housing Act (the Act) prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. It applies to housing, regardless of the type of funding or ownership, including housing operated by private individuals or organizations that receive Federal financial assistance, and housing owned or operated by state and local governments. The Act prohibits discrimination based on membership in a protected class in a broad range of housing-related activities, including refusing to lease a unit or otherwise denying use of a dwelling. It also prohibits discriminating in the terms, conditions, privileges or in the provision of services or facilities in connection with a dwelling. Other covered housing-related activities include, financing, zoning practices, and new construction design. The Act covers all types of housing intended as a short or long-term residence, including the following types of housing that may be funded under the SHP program: shelters that house persons for more than a few days, transitional housing facilities, and permanent housing facilities. The Act covers housing provided through dormitory-style sleeping units as well as apartments and single room occupancy units. The Fair Housing Act regulations are found at 24 CFR Part 100. For additional technical information about the Fair Housing Act, see http://www.hud.gov/offices/fheo/FHLaws/yourrights.cfm.

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Definition of Persons with Disabilities

All three Federal civil rights laws addressing disability discrimination (the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act) define a person with a disability as one who:

  1. has a physical or mental impairment which substantially limits one or more major life activities;
  2. has a record of such impairment; or
  3. is regarded as having such an impairment.

The status of being a juvenile offender or a sex offender does not qualify an individual as a person with a disability under these civil rights laws. Similarly, while these laws protect persons who are recovering from substance abuse or have a history of substance abuse, they do not protect persons who are currently engaging in the illegal use of controlled substances. Additionally, these laws do not protect an individual with a disability whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

It is important to note that the above definition applies to the application of Federal civil rights laws. Many HUD programs have different definitions of “disability,” and those definitions should be used to determine program eligibility. The Supportive Housing Program definition for “disability” is described in Section B of this guide. As an example, while a current user of illegal drugs may not be protected under Federal civil rights laws, he/she may be an eligible participant in SHP-funded programs that offer substance abuse services.

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Fair Housing Act Nondiscrimination Requirements Related to Disability

Reasonable Accommodations

The Fair Housing Act requires owners of housing facilities to provide reasonable accommodations to persons with disabilities. Under the Fair Housing Act, reasonable accommodations are changes, exceptions, or adjustments to a program, service, or procedure that will allow a person with a disability to have equal enjoyment of the housing program. There must be an identifiable relationship between the requested accommodation and the person’s disability. Reasonable accommodations need not be provided if they would constitute an undue financial and administrative burden, or if they would be a fundamental alteration of the provider’s program. For information about reasonable accommodations under the Fair Housing Act, see the Joint Statement of the U.S Department of Housing and Urban Development and the U.S. Department of Justice entitled Reasonable Accommodations Under the Fair Housing Act, issued on May 14, 2022 found at www.hud.gov/offices/fheo/library/huddojstatement.pdf

Reasonable Modifications

The Fair Housing Act does not require owners and homeowner associations to make and pay for structural modifications to dwellings. Instead, it requires owners and homeowners to allow tenants with disabilities to make reasonable access-related modifications to their private living space and common use spaces. See 24 CFR §100.203. However, recipients of Federal financial assistance such as SHP grantees should be mindful that they are subject to Section 504’s more stringent requirements that they make and pay for structural modifications to dwellings and public and common use areas that are needed as a reasonable accommodation for persons with disabilities unless providing that accommodation would constitute a fundamental alteration of the program or an undue financial and administrative burden. (See Section 504 discussion below.) For information about reasonable modifications under the Fair Housing Act, see the Joint Statement of the U.S Department of Housing and Urban Development and the U.S. Department of Justice entitled Reasonable Accommodations Under the Fair Housing Act, issued on May 14, 2022 found at www.hud.gov/offices/fheo/library/huddojstatement.pdf

Affirmative Minimum Accessibility Requirements

In addition to its general non-discrimination requirements, the Fair Housing Act requires that new multifamily housing (both rental and for sale) with four or more dwelling units built for first occupancy after March 13, 1991, be designed and built to contain minimum accessibility features for persons with disabilities. This includes accessible public and common use areas, doors that are wide enough for wheelchairs, kitchens and bathrooms that allow a person using a wheelchair to maneuver, and other adaptable features within the units. These accessibility requirements are in addition to those required under Section 504 (see below). Sleeping rooms that share kitchen facilities and dormitory style housing are subject to these requirements. For more information about these the accessibility requirements see 24 CFR 100.205 and www.fairhousingfirst.org/.

Inquiries Related to Disability

Although the Fair Housing Act places limitations on the ability of housing providers to inquire about the nature and severity of an applicant’s disability, it is permissible for a housing provider that offers housing serving persons with disabilities to inquire whether an applicant meets the program’s eligibility requirements. See 24 CFR 100.202(c). Thus, an SHP provider may inquire whether an applicant has a disability as defined in the SHP regulations. In addition, service providers connected with the housing program may make inquiries appropriately connected to determining the service needs of residents. Housing providers may also ask applicants and residents whether they need units with special features or if they have special needs related to communication, but they should make these inquiries of all program participants.

Fair Housing Act Prohibitions on Discrimination Based On Sex

In general, the Fair Housing Act prohibits housing providers from limiting access to their housing program based upon sex. However, housing may be limited to one sex where, because of the physical limitations or configuration of the housing facility, considerations of personal privacy or personal safety would make it inappropriate for the facility to be made available to members of both sexes. For example, it would not be a violation of the Fair Housing Act for units with shared bathing or sleeping facilities to be limited to one sex.

Fair Housing Act Prohibitions on Discrimination Based on Familial Status

The Fair Housing Act prohibits discrimination based upon familial status, defined as families and individuals with children under 18, as well as pregnancy, and families and individuals in the process of securing legal custody of individuals under 18. Discrimination against families with children is prohibited, regardless of the ages of the children, or the number of children in a household. Notwithstanding the prohibition against discrimination on the basis of familial status, state and local governments do have the right to apply reasonable restrictions regarding the maximum number of occupants permitted to occupy a dwelling.

In general, absent special circumstances, it is the Department’s position that a maximum of two persons in a bedroom is a reasonable occupancy standard. Bedroom size, unit size, age of children, and other circumstances might affect the reasonableness of a two person per bedroom occupancy rule. For a detailed discussion on establishing lawful occupancy standards, see “Fair Housing Enforcement—Occupancy Standards Notice of Statement of Policy,” published in the Federal Register on December 18, 1998, Volume 63, Number 243.

Discrimination Based Upon Religion

The Fair Housing Act prohibits discrimination based upon religion. SHP grantees may not restrict housing or services to persons of a particular religion or religious denomination, nor may they require a particular religious belief or activity as a condition of receiving benefits or participating in SHP activities. If SHP providers allow tenants to use the public and common spaces for religious services, it must make those public and common spaces available for all types of religious services requested by the tenants.

In addition to the Fair Housing Act prohibitions on discrimination based upon religion, there are other HUD requirements relating to use of Federal funds by faith-based organizations. These include considerations related to use of Federal funds for acquisition, construction, or rehabilitation of real property, and separation of inherently religious activities from HUD-funded activities. For more information, see http://www.hud.gov/offices/fbci/.

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Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based upon disability in all programs or activities operated by recipients of Federal financial assistance, regardless of whether the programs involve provision of housing or non-housing services or benefits. It covers all McKinney-Vento Act funded programs, including the Supportive Housing Program. The Section 504 regulations are found at 24 CFR Part 8. While Section 504 overlaps with the disability discrimination prohibitions of the Fair Housing Act, (see above) it also imposes broad affirmative obligations on recipients to make their programs, as a whole, accessible to persons with disabilities. These obligations include the following:

Affirmative Accessibility Requirements

Section 504 regulations establish affirmative physical accessibility requirements when Federal financial assistance is used for new construction or rehabilitation of housing. The regulations require five percent of units to be made accessible to persons with mobility disabilities and an additional two percent to be made accessible to persons with communication disabilities. In addition, the regulations require accessible public and common use areas. See 24 CFR §§ 8.20, 8.22, 8.23. Units and public and common use areas that meet the requirements of the Uniform Federal Accessibility Standards (UFAS) are deemed to be fully accessible under Section 504 . See 24 CFR § 8.32. The Section 504 accessibility requirements are in addition to the requirements imposed by the Fair Housing Act for newly constructed multifamily housing. Units that only meet the Fair Housing Act design and construction standards do not comply with UFAS. A copy of UFAS can be obtained at www.access-board.gov/ufas/ufas-html/ufas.htm.

Services provided to participants in SHP programs must also be provided in accessible settings.

Site Selection

The Section 504 regulations require that recipients consider physical accessibility in determining the site or location of a Federally assisted facility. The regulations state that it is discriminatory for recipients to select sites which have the purpose or effect of excluding qualified persons with disabilities from participating in or denying the benefits of any program or activity that receives Federal financial assistance. See 24 CFR §8.4(b)(5). For example, an SHP recipient should not lease a building that has steps at the entrance and cannot be ramped to allow persons with mobility impairments can access the building.

Effective Communication

The Section 504 regulations require recipients to take appropriate steps to ensure effective communication with applicants, residents, and the public with communication disabilities. SHP providers should ensure that their application and admissions process and the services offered are accessible and understandable by persons with disabilities. This may include providing necessary auxiliary aids and services such as sign language interpreters and written materials in alternative formats. See 24 CFR §8.6.

Reasonable Accommodations

Like the Fair Housing Act, Section 504 requires that recipients provide reasonable accommodations to persons with disabilities by making changes to policies, practices, procedures and structures, if needed to allow applicants or tenants with disabilities to have access to or participate in the program. A particular reasonable accommodation need not be provided if doing so would constitute an undue financial and administrative burden or a fundamental alteration of the program. See 24 CFR §§ 8.20, 8.24, 8.33. The requirements for reasonable accommodations related to policies, practices and procedures are the same under Section 504 and the Fair Housing Act. However, the Section 504 reasonable accommodation obligation is broader than the obligation under the Fair Housing Act with respect to requests for structural changes to facilities because Section 504 requires that recipients of Federal financial assistance make and pay for physical changes to dwelling units and public and common use spaces if needed as a reasonable accommodation unless it is an undue financial and administrative burden or a fundamental alteration of the program.

Recipients are allowed to verify the existence of the disability and the need for the requested accommodation. For a discussion of appropriate inquiries related to reasonable accommodations and verification of the need for accommodations, see Joint Statement of the U.S Department of Housing and Urban Development and the U.S. Department of Justice entitled Reasonable Accommodations Under the Fair Housing Act, issued on May 14, 2022 found at www.hud.gov/offices/fheo/library/huddojstatement.pdf.

Examples of reasonable accommodations under Section 504 include:

  • Making an exception to a rule that prohibits animals in a dwelling to accommodate a person with a disability who uses an assistance animal.
  • Providing and paying for a ramp to the entrance of a unit which would allow a tenant in a wheelchair to access the unit.
  • Providing accessible transportation for a trip for program participants where transportation is being provided for nondisabled residents.
  • Providing a first floor unit to an applicant or a transfer to a first floor unit for a resident who cannot climb stairs to a second floor unit.
  • Allowing a resident to have a personal refrigerator to store medications in a development that does not normally provide refrigerators in sleeping units.

For more extensive information on Section 504 and all of its requirements, see www.hud.gov/offices/fheo/disabilities.

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Title VI of the Civil Rights Act of 1964

Title VI prohibits all recipients of Federal financial assistance from discriminating based on race, color, or national origin. Title VI applies to any program or activity receiving Federal financial assistance, not just housing. See 24 CFR Part 1. In housing, Title VI and the Fair Housing Act applies to many of the same types of activities. However, HUD has broader investigative authority in complaints related to violations of Title VI and the authority to impose different types of remedies than it does in cases involving violations of the Fair Housing Act.

Title VI regulations require that recipients have an affirmative obligation to take reasonable steps to remove or overcome any discriminatory practice or usage that subjects individuals to discrimination based on race, color, or national origin. The regulations also require that, even in the absence of prior discrimination, recipients should take affirmative steps to overcome the effects of conditions that results in limiting participation by persons of a particular race, color, or national origin. Title VI regulations also require that owners maintain racial and ethnic data showing the extent to which members of minority groups are beneficiaries of Federal financial assistance.

Under Title VI, recipients may be required to provide language assistance to persons who, as a result of their national origin, are limited in their English proficiency, in order to improve access to their programs and activities. For more information on this issue, see http://www.hud.gov/offices/fheo/promotingfh/lep.cfm.

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Americans with Disabilities Act (ADA)

Title II of the Americans with Disabilities Act (ADA) prohibits discrimination against persons with disabilities in all programs, activities, and services of a public entity (i.e., state or local government; or department, agency, special purpose district, or other instrumentality of a state, or states, or local government). The prohibitions against discrimination under Title II of the ADA are essentially the same as those in Section
504, except they apply to all programs, activities, and services of the public entity, not just those funded with Federal financial assistance.

Title III of the ADA prohibits discrimination on the basis of disability in public accommodations and commercial facilities. These do not include housing, but do include emergency overnight shelters or social service facilities. For more information about the ADA and its requirements, see the Department of Justice website at: http://www.ada.gov/.

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Age Discrimination Act of 1975

The Age Discrimination Act prohibits discrimination based upon age in Federally assisted and funded programs or activities, except in limited circumstances. It is not a violation of the Age Discrimination Act to use age as a screening criterion in a particular program if age distinctions are permitted by statute for that program or if age distinctions are a factor necessary for the normal operation of the program or the achievement of a statutory objective of the program or activity. See 24 CFR Part 146.

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Enforcement and Compliance With Civil Rights Laws

SHP providers should make sure that their staffs are trained in the requirements of the civil rights laws and that all admissions and residential policies are applied equally regardless of membership in a protected class.

The Department strongly recommends that providers have written, reasonable accommodation policies and that applicants and residents be advised of the existence of their right to reasonable accommodation at admission and during tenancy.

Titles VI, Section 504 and the Age Discrimination Act are enforced by the Department through routine monitoring as well as investigation of complaints of discrimination. Recipients are obligated to provide the Department with access to any records the Department believes are necessary to determine compliance with these laws.

The Department also has principal enforcement responsibility for the Fair Housing Act and will investigate complaints of discrimination filed with the Department. In addition the Department has the authority to initiate complaints on behalf of the Secretary.

Careful record-keeping is very helpful for documenting compliance with civil rights laws, as well as to demonstrate that policies and procedures are being applied equally to all program applicants and participants.

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Section O: Frequently Asked Questions

  1. Would a Safe Haven qualify as “housing” under the Fair Housing Act?

    Whether a particular facility qualifies as covered housing under the Fair Housing Act depends on several factors which relate to whether the housing is occupied as a residence in that individuals living in the housing have an expectation or a right to return. In 2000, the Department published a seven-factor analysis to be used in determining whether a property qualifies as a dwelling under the Fair Housing Act, 65 Fed. Reg. 15740, 15741 (March 23, 2022). The seven-factor analysis considers the following: (1) length of stay; (2) whether the rental rate for the unit will be calculated on a daily, weekly, monthly, or yearly basis; (3) whether the terms and length of occupancy will be established through a lease or other written agreement; (4) what amenities are included inside the unit, including kitchens; (5) how the purpose of the property is marketed to the public; (6) whether the resident possesses the right to return to the property; and (7) whether the resident has anywhere else in which to return.

    A Safe Haven that functioned as an emergency overnight shelter, where persons took their belongings with them in the morning and had no expectation that they would have a right to return in the evening, would not qualify as housing for purposes of Fair Housing Act coverage, but would be covered by Title III of the Americans With Disabilities Act. In addition, as recipients of federal financial assistance, all Safe Haven programs would still be covered by Section 504 of the Rehabilitation Act, Title VI of the Civil Rights Act of 1964 and the Age Discrimination Act.

  2. Can a project be limited to serving families with children exclusively?

    Yes. While the Fair Housing Act prohibits discrimination against families with children, nothing in the Act prohibits providing preferential treatment for families with children, so long as all families may compete equally for the housing, regardless of membership in a protected class (i.e., race, religion, national origin, etc.).

  3. Can a project require program participants seeking to live together in one unit to be related either by blood or by legal marriage?

    Although HUD’s SHP regulations do not impose any specific requirements related to this issue, SHP recipients should review state or local laws which may prohibit discrimination based upon marital status.

  4. Can a project exclude families with children if the project serves convicted sex offenders?

    If a project is specifically designed as a project for which being a sex offender is an eligibility requirement, then it may be able to exclude families with children on the ground that a program designed to serve sex offenders is not a safe program for children. However, projects that are designed to serve persons with disabilities may not exclude families with children on the expectation that an applicant might be also be a registered sex offender.

  5. If reasonable accommodations that require structural changes are necessary, such as the construction of a ramp for access into a building, does the landlord or the SHP project grantee pay for the accommodation in a leasing-type project?

    Under Section 504, the SHP grantee has the obligation to ensure that its program is usable and accessible to persons with disabilities. This includes using sites and facilities that are accessible or can be made accessible for persons with mobility impairments. When an applicant or resident requests a structural change to a unit or public and common use area to accommodate their individual disability, the grantee is obligated under Section 504 to make or pay for the modification unless doing so is an undue financial and administrative burden.

  6. Can an SHP program that operated separate apartments for persons with disabilities serve only single mothers with children or mother with only sons or daughters?

    No. The Fair Housing Act prohibits discrimination based upon sex unless there are significant privacy and safety concerns which would make it inappropriate to house both males and females. Since the example describes an apartment program with no shared living quarters, there would be no privacy concerns justifying excluding single fathers with children or excluding children of a particular sex.

  7. Can an SHP program target services for persons with certain types of disabilities?

    Although an SHP program can target services for persons with particular types of disabilities, the program may not exclude persons with other disabilities who can benefit from the program.

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