Order Code 95-710
Report for Congress
Received through the CRS Web
The Fair Housing Act:
A Legal Overview
Updated May 6, 2003
Jody Feder
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

---

The Fair Housing Act: A Legal Overview
Summary
The Fair Housing Act (FHA) was enacted "to provide, within constitutional
limitations, for fair housing throughout the United States."1 The original 1968 Act
prohibited discrimination on the basis of "race, color, religion, or national origin" in
the sale or rental of housing, the financing of housing, or the provision of brokerage
services.2 In 1974, the Act was amended to add sex discrimination to the list of
prohibited activities.3 Likewise, in 1988 the Act was amended to prohibit discrimina-
tion in housing on the additional grounds of physical or mental handicap, as well as
familial status.4
The FHA may be enforced by the Attorney General, the Department of Housing
and Urban Development (HUD), and by victims of discrimination. Since enactment,
the Act’s coverage has been extended to "residential real estate-related transactions,"
which include both the making and the purchasing of loans secured by residential real
estate, and the "selling, brokering, or appraising of residential real property."5 Over
the years, the FHA has also been construed to apply to discrimination in property and
hazard insurance. Although the FHA has been amended by a series of smaller laws
in recent years, there has not been a major overhaul of the Act since 1988.
In the 108th Congress, only one bill that would amend the FHA has been
introduced. That bill, H.R. 214, would amend the FHA to prohibit discrimination on
the basis of affectational or sexual orientation. Under the proposed legislation,
“affectational or sexual orientation” would be defined as “male or female
homosexuality, heterosexuality, and bisexuality by orientation or practice, by and
between consenting adults.”
This report will be updated as warranted.
1 42 U.S.C. § 1301.
2 Id. at §§ 3604-06.
3 Pub.L. No. 93-383.
4 Pub. L. No. 100-430.
5 42 U.S.C. § 3605.

---

Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Housing Practices in Which Discrimination Is Prohibited . . . . . . . . . . . . . . . . 3
Disparate Impact Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. Enforcement of the Fair Housing Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Enforcement by the Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Enforcement by the Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Enforcement by Private Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. The Fair Housing Act and Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
V. Familial Discrimination and Housing for Older Persons . . . . . . . . . . . . . . . . 13
VI. Discrimination Based on Handicap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Group Homes and Zoning Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

---

The Fair Housing Act: A Legal Overview
I. Introduction
The Fair Housing Act (FHA) was enacted "to provide, within constitutional
limitations, for fair housing throughout the United States."6 The original 1968 Act
prohibited discrimination on the basis of "race, color, religion, or national origin" in
the sale or rental of housing, the financing of housing, or the provision of brokerage
services.7 In 1974, the Act was amended to add sex discrimination to the list of
prohibited activities.8 Likewise, in 1988 the Act was amended to prohibit discrimina-
tion on the additional grounds of physical or mental handicap, as well as familial
status.9
The FHA may be enforced by the Attorney General, the Department of Housing
and Urban Development (HUD), and by victims of discrimination. Since enactment,
the Act’s coverage has been extended to "residential real estate-related transactions,"
which include both the making and the purchasing of loans secured by residential real
estate, and the "selling, brokering, or appraising of residential real property."10
Although the FHA has been amended by a series of smaller laws in recent years,
there has not been a major overhaul of the Act since 1988.
In the 108th Congress, only one bill that would amend the FHA has been
introduced. That bill, H.R. 214, would amend the FHA to prohibit discrimination on
the basis of affectational or sexual orientation. Under the proposed legislation,
“affectational or sexual orientation” would be defined as “male or female
homosexuality, heterosexuality, and bisexuality by orientation or practice, by and
between consenting adults.”
In general, the FHA applies to all sorts of housing, public and private, including
single family homes, apartments, condominiums, mobile homes, and others.
However, the Act includes some exemptions. For example, it does not apply to a
single family house sold or rented by a private owner without the use of a real estate
agent, provided that, among other conditions, the owner does not own more than
6 42 U.S.C. § 3601. The FHA, 42 U.S.C. §§ 3601 et seq, was originally enacted as Title VIII
of the Civil Rights Act of 1968.
7 Id. at §§ 3604-06.
8 Pub..L. No. 93-383.
9 Pub. L. No. 100-430.
10 42 U.S.C. § 3605.

---

CRS-2
three single family houses at any one time.11 The Act also does not apply to rooms
or units in a dwelling containing living quarters occupied or intended to be occupied
by no more than four families living independently of each other, if the owner
occupies one of the living quarters.12
The Act contains three additional exemptions from its coverage. First, religious
organizations or nonprofit institutions owned by religious organizations may not be
prevented "from limiting the sale, rental, or occupancy of dwellings which it owns
or operates for other than a commercial purpose to persons of the same religion, or
from giving preferences to such persons, unless membership in such religion is
restricted on account of race, color, or national origin."13 Second, private clubs may
bar nonmembers or give preference to members in the rental or occupancy of
lodgings that they own or operate for other than a commercial purpose.14 Third,
"housing for older persons," as the term is defined by the Act, may exclude families
with children.15
Finally, the FHA provides that nothing in the act “limits the applicability of any
reasonable local, State, or Federal restrictions regarding the maximum number of
occupants permitted to occupy a dwelling.”16 Concerned that occupancy limits may
conflict with the prohibition against familial status discrimination, Congress enacted
section 589 of the Quality Housing and Work Responsibility Act of 1998.17 This
legislation required HUD to adopt the standards specified in the March 20, 1991
Memorandum from the General Counsel,18 which states that owners and managers
have discretion to establish reasonable occupancy standards based on factors such as
the number and size of bedrooms and the overall size of the housing unit.19 In
general, HUD concluded that “an occupancy policy of two persons in a bedroom...
is reasonable” under the FHA.20 For more information about state and local
restrictions on occupancy limits, see the “Group Homes” section.21
11 Id. at § 3603(b)(1). Other requirements include the condition that the house be sold or
rented without a broker and without advertising. However, HUD regulations that implement
the FHA provide that the exemptions specified in 42 U.S.C. § 3603(b) do not apply to
advertising. In other words, advertising that indicates a discriminatory preference or
limitation is prohibited even when such discrimination itself is not. 24 C.F.R. § 100.10(c).
12 42 U.S.C. § 3603(b)(2).
13 Id. at § 3607(a).
14 Id.
15 Id. at § 3607(b). See also supra notes 84-90 and accompanying text.
16 Id. at § 3607(b)(1).
17 Pub. L. No. 105-276.
18 Id. at § 589.
19 See 63 Fed. Reg. 70,982, 70,984 (Dec. 18, 1998), which adopted the 1991 Memorandum.
20 Id.
21 Infra at CRS-16.

---

CRS-3
II. Housing Practices in Which Discrimination Is
Prohibited
As amended, the FHA prohibits discrimination on the basis of race, color,
religion, sex, handicap, familial status, or national origin in the sale or rental of
housing, the financing of housing, the provision of brokerage services, or in
residential real estate-related transactions. The HUD regulations elaborate upon the
types of housing practices in which discrimination is prohibited and provide
illustrations of such practices.22 Under the regulations, the housing practices in which
discrimination is prohibited include the sale or rental of a dwelling;23 the provision
of services or facilities in connection with the sale or rental of a dwelling;24 other
conduct which makes dwellings unavailable to persons;25 steering;26 advertising or
publishing notices with respect to the sale or rental of a dwelling;27
22 24 C.F.R. Part 100.
23 Id. at § 100.60. Prohibited actions under this section include: (1) failing to accept or
consider a bona fide offer; (2) refusing to sell or rent a dwelling, or to negotiate for a sale
or rental; (3) imposing different sales prices or rental charges for the sale or rental of a
dwelling; (4) using different qualification criteria or applications; or (5) evicting tenants
because of their, or their guests', race, color, religion, sex, handicap, familial status, or
national origin.
24 Id. at § 100.65. Such discriminatory conduct includes: (1) using different provisions in
leases or contracts of sale; (2) failing or delaying maintenance or repairs of a dwelling; (3)
failing to process an offer of a dwelling or communicate an offer accurately; (4) limiting the
use of privileges, services, or facilities associated with a dwelling; or (5) denying or limiting
services or facilities in connection with the sale or rental of a dwelling, because a person
failed or refused to provide sexual favors.
25 Id. at § 100.70. Such discriminatory conduct includes: (1) discharging or taking other
adverse action against an employee, broker, or agent who refused to participate in a
discriminatory practice; (2) employing codes or other devices to segregate or reject
applicants, purchasers, renters, or refusing to deal with certain real estate brokers or agents
because they or their clients are of a particular race, etc.; (3) denying or delaying the
processing of an application made by a purchaser or renter, or refusing to approve such
person for occupancy in a cooperative or condominium; or (4) refusing to provide (or
providing differently) municipal services or property or hazard insurance for dwellings.
26 Id. Steering practices include: (1) discouraging any person from inspecting, purchasing,
or renting a dwelling; (2) discouraging the purchase or rental of a dwelling by exaggerating
drawbacks or failing to inform any person of desirable features of a dwelling or of a
community; (3) communicating to any prospective purchaser that he or she would be
comfortable or compatible with the residents of the existing community or neighborhood
because of race, etc.; or (4) assigning any person to a particular section of a community, or
to a particular floor of a building.
27 Id at §§ 100.75. Discriminatory advertisements or notices include: (1) using words,
phrases, photographs, illustrations, or symbols (e.g., "white private home,” “colored homes,”
“Jewish home,” “Hispanic residence,” “adult building"); (2) expressing to agents, brokers,
employees, or any other persons a preference for or limitation on any purchaser or renter;
(3) selecting media or locations for advertising which deny particular segments of the
housing market information about housing opportunities, such as the use of English
(continued...)

---

CRS-4
misrepresentations as to the availability of a dwelling;28 blockbusting;29 and the
denial of access to membership or participation in any multiple-listing service, real
estate brokers association, or any other service relating to the sale or rental of a
dwelling.30
The Act also covers "residential real estate-related transactions," which include
both the making and the purchasing of loans secured by residential real estate, and
the "selling, brokering, or appraising of residential real property."31 Thus, the
provisions of the FHA extend to the secondary mortgage market.32
In 1996, Congress added a section to the FHA that is designed to enhance fair
lending practices in residential real estate-related transactions.33 Enacted in section
2302 of the Omnibus Consolidated Appropriations Act,34 the new provision
established “a privilege for lender-initiated self-tests of residential real estate-related
27 (...continued)
language media alone when non-English language media is available in the area; or (4)
refusing to publish advertising or requiring different charges or terms for such advertising.
See also 22 ALR Fed 359.
28 Id. at § 100.80. Illustrations of this prohibited activity include: (1) indicating through
words or conduct that a dwelling has been sold or rented; (2) representing that covenants or
other deed, trust, or lease provisions which purport to restrict the sale or rental of a dwelling
because of race, etc., preclude the sale or rental of a dwelling; (3) enforcing such covenants
or other deed, trust, or lease provisions; (4) limiting information, by word or conduct,
regarding suitably priced dwellings; or (5) providing false or inaccurate information
regarding the availability of a dwelling to any person, including testers who are not actually
seeking housing.
29 Id. at § 100.85(b). The HUD regulations define "blockbusting" to mean "for profit, to
induce or attempt to induce a person to sell or rent a dwelling by representations regarding
the entry or prospective entry into the neighborhood of a person or persons of a particular
race," etc. (24 C.F.R. § 100.85(a)). For blockbusting to be established, profit does not have
to be realized, as long as profit was a factor for engaging in the activity.
30 Id. at § 100.90. Such prohibited actions include: (1) setting different fees for access to or
membership in such an organization; (2) denying or limiting benefits accruing to members
in such an organization; (3) imposing different standards or criteria for membership in a
real-estate sales or rental organization; or (4) establishing geographic boundaries or office
location or residence requirements for access to or membership or participation in any
multiple listing service.
31 42 U.S.C. § 3605. See also, 24 C.F.R. §§ 100.110 - 100.135. Discrimination in lending is
also prohibited by the Equal Credit Opportunity Act (ECOA), 15 U.S.C. §§ 1691-1691f,
which makes it unlawful for creditors to discriminate against any applicant for commercial
or consumer credit on the basis of race, color, religion, national origin, sex or marital status,
or age (providing the applicant is not a minor), or because all or part of the applicant's
income derives from any public assistance program. The ECOA provides that an aggrieved
person may not recover under both the ECOA and the FHA. 15 U.S.C. § 1691e(i).
32 H.R. Rep. No. 100-711, 100th Cong., 2d Sess. 30 (1988), reprinted in 1988 U.S.C.C.A.N.
2173, 2191.
33 42 U.S.C. § 3614-1.
34 Pub. L. No. 104-208.

---

CRS-5
lending transactions.”35 Under self-tests, lenders conduct studies of their lending
practices and procedures to determine their level of compliance with the FHA. If a
lender discovers possible FHA violations but takes appropriate corrective action, then
the results of the self-test are privileged and generally cannot be used against the
lender in civil proceedings.36 The purpose of this provision is to encourage lenders
to monitor and correct potentially discriminatory practices on their own initiative.
Yet another FHA provision prohibits coercive behavior, making it unlawful to
intimidate or interfere with an individual who has either exercised his or her rights
under the FHA or aided another person in the exercise of his or her rights.37
Finally, because sexual harassment is recognized as a form of discrimination on
the basis of sex, the FHA also prohibits such harassment. Although HUD does not
currently have regulations governing sexual harassment in housing, the agency has
issued proposed rules that would establish the standards that HUD intends to use in
sexual harassment cases.38 Under these proposed regulations, an individual would be
allowed to bring a sexual discrimination claim under the FHA when “submission to
unwelcome sexual advances and requests for sexual favors is made a term or
condition of housing” or when a person’s “unwelcome [sexual] conduct is
sufficiently severe or pervasive that it results in the creation of an environment that
a reasonable person . . . would find intimidating, hostile, offensive, or otherwise
significantly less desirable.”39
Disparate Impact Discrimination
In addition to outlawing direct discrimination against individuals on the
prohibited grounds mentioned above, the federal courts have generally agreed that
the FHA prohibits policies that have a substantial disparate impact on minority
applicants.40 For example, in Bronson v. Crestwood Lake Section I Holding Corp.,
a federal district court issued an injunction against an apartment complex's policy of
refusing to lease apartments to applicants whose annual income did not equal three
35 62 Fed. Reg. 66,424, 66,424 (Dec. 18, 1997).
36 42 U.S.C. §3614-1(a).
37 Id. at § 3617. Violations of this section include: (1) coercing to deny or limit the benefits
provided in connection with the sale or rental of a dwelling or in connection with a
residential real estate-related transaction; (2) threatening, intimidating, or interfering with
persons in their enjoyment of a dwelling; (3) threatening an employee with dismissal or
adverse action, or taking adverse action, for any effort to assist a person seeking access to
any residential real estate-related transaction; (4) intimidating or threatening any person
because that person is engaged in activities designed to make others aware of their fair
housing rights; or (5) retaliating against any person because that person made a complaint,
testified, assisted, or participated in a proceeding under the Act. 24 C.F.R. § 100.400.
38 65 Fed. Reg. 67,666 (Nov. 13, 2000).
39 Id. at 67,666.
40 See generally, Peter E. Mahoney, The End(s) of Disparate Impact: Doctrinal
Reconstruction, Fair Housing and Lending Law, and the Antidiscrimination Principle, 47
Emory L.J.409 (1998).

---

CRS-6
times the annual rent.41 The court found that, "[u]sing alternative statistical
approaches, plaintiffs have demonstrated the challenged application policies utilized
by the defendants do indeed have a substantial disparate impact on minority
persons."42
As commentators have noted, "Two kinds of discriminatory effects may result
from a facially neutral decision regarding housing. First, the decision may have a
greater impact on one racial group than another. . . . A second discriminatory effect
. . . can extend to the entire community," by, for example, perpetuating segregation
and thereby preventing interracial association.43 It does not follow, however, that all
discriminatory effects are therefore prohibited. Courts take into account various
factors to determine whether discriminatory effects are sufficient to make otherwise
legal acts illegal. In Phillips v. Hunter Trails Community Association, for example,
the Court of Appeals for the Seventh Circuit "deemed four factors of critical
importance":
(1) strength of the plaintiff's statistical showing; (2) the
legitimacy of the defendant's interest in taking the action
complained of; (3) some indication -- which might be suggestive
rather than conclusive -- of discriminatory intent; and (4) the
extent to which relief could be obtained by limiting interference
by, rather than requiring positive remedial measures of, the
defendant.44
Another practice that is not necessarily aimed at individual members of a
minority group but that may have a disparate impact on such persons is "redlining,"
which is the denial of home loans or home insurance coverage based on the
characteristics of the neighborhood in which a home is located.45 Courts have
consistently held that redlining violates the FHA. For example, in Dunn v.
41 724 F. Supp. 148 (S.D.N.Y. 1989).
42 Id. at 154.
43 Joseph G. Cook and John L. Sobieski, Jr., 3 CIVIL RIGHTS ACTIONS ¶ 19.07, p. 19-19
(1994), quoting Metropolitan Housing Development Corp. v. Village of Arlington Heights,
558 F.2d 1283 (7th Cir. 1977), cert. denied, 434 U.S. 1025 (1978). See also, Bonnie P.
Tucker and Bruce A. Goldstein, LEGAL RIGHTS OF PERSONS WITH DISABILITIES: AN
ANALYSIS OF FEDERAL LAW 11-35 (1992).
44 685 F.2d 184, 189-190 (7th Cir. 1982). In United States v. Starrett City Associates, 840
F.2d 1096 (2d Cir. 1988), the Court of Appeals for the Second Circuit struck down a racial
quota plan that had caused minority applicants to have to wait ten times longer than white
applicants for an apartment, rejecting the defense that the intention behind the plan was
benign because it was designed to prevent "white flight" that would lead to a predominantly
minority resident population. See, Cook and Sobieski, supra note 43, at p. 19-23.
45 See, Annotation, "Redlining," Consisting of Denial of Home Loans or Insurance Coverage
in Certain Neighborhoods, as Discrimination in Violation of §§ 804 and 805 of Fair
Housing Act (42 USCS §§ 3605, 3605), 73 ALR Fed 899.

---

CRS-7
Midwestern Indemnity Mid-American Fire and Casualty Co.,46 a federal court held
that, if the plaintiff homeowners could prove their claim that their homeowners'
insurance coverage had been terminated because the defendant insurance company's
business portfolio included "a significant portion of black homeowners and/or
persons residing in predominantly black neighborhoods," then they would establish
a violation of the FHA. The court reasoned that "the availability of appropriate
insurance is a necessary predicate to the availability of financing, and financial
assistance is a precondition to securing availability of adequate housing."47
On the other hand, in Thomas v. First Federal Savings Bank of Indiana, a case
in which the black homeowner plaintiffs claimed that the defendant financial
institution had redlined the plaintiffs' neighborhood by refusing the plaintiffs'
application for a second mortgage, the court held:
plaintiffs' statistical evidence is not sufficient as a matter of law
to establish a violation of section 3605. Plaintiffs' attorneys
offered no explanation of the meaning of these figures. . . .
Although section 3605's red-lining prohibition makes it illegal
to discriminate on the basis of certain characteristics of the
plaintiff's neighborhood (e.g., race, color, religion, sex or
national origin), there are numerous legitimate business factors
that go into a decision to make a loan which do not form the
basis of a violation under section 3605.48
In addition to the credit worthiness of the borrower, these legitimate business factors
include “the marketability, the salability of the security property, including the
neighborhood in which it's located which has a bearing on the salability, [and] the
diversification of the institution's assets.”49
III. Enforcement of the Fair Housing Act
Under the FHA, the Secretary of HUD, the Attorney General, and victims of
discrimination may all take action to enforce the prohibition against discrimination.
Typically, HUD has primary enforcement through agency adjudication, but the
Department of Justice and aggrieved individuals may also bring actions in federal
court under certain circumstances.
Enforcement by the Secretary
Within one year after an alleged discriminatory housing practice has occurred
or terminated, an aggrieved person may file a complaint with the Secretary, or the
46 472 F. Supp. 1106, 1107 (S.D. Ohio 1979).
47 Id. at 1109. For a more detailed description of the prohibition against discriminatory
insurance practices, see “The Fair Housing Act and Insurance” section later in this report.
48 653 F. Supp. 1330, 1340 (N.D. Ind. 1987).
49 Id.

---

CRS-8
Secretary may file a complaint on his own initiative. When a complaint is filed, the
Secretary must, within ten days, serve the respondent – the party charged with
committing a discriminatory practice – with notice. The respondent must then answer
the complaint within ten days.50
From the filing of the complaint, the Secretary has 100 days, subject to
extension, to complete an investigation of the alleged discriminatory housing
practice.51 During this time, the Secretary must, "to the extent feasible, engage in
conciliation with respect to" the complaint.52 Agreements arising out of such
conciliation are subject to the Secretary's approval. Such agreements may provide for
binding arbitration, which may award appropriate relief, including monetary relief,
to the aggrieved party.53 The Secretary may also authorize a civil action for temporary
or preliminary relief, pending final disposition of the complaint.54
At the completion of the investigation, the Secretary must determine whether
reasonable cause exists to believe that a discriminatory housing practice has occurred
or is about to occur. If he finds no reasonable cause, then he must dismiss the
complaint. If he finds reasonable cause, then he must issue a charge on behalf of the
aggrieved person, unless he has approved a conciliation agreement.55
If the Secretary issues a charge, then he, or any party to the dispute, may elect
to have the case heard in a federal district court.56 Otherwise, the case shall be heard
by an administrative law judge (ALJ). In such a hearing, each party is permitted to
50 42 U.S.C. § 3610(a)(1).
51 Id. at § 3610(a)(1)(B)(iv). If the Secretary discovers that the complaint is within the
jurisdiction of either a state or local public agency that the Secretary has certified, he must
refer the complaint to that agency before taking any action. If the agency fails to commence
the proceedings within 30 days after referral, or having commenced them fails to carry them
forward with reasonable promptness, or if the Secretary determines that the agency no
longer qualifies for certification, then the Secretary may take further action. Id. at § 3610(f).
HUD published a final rule regarding certification and funding of state and local housing
enforcement agencies at 61 Fed. Reg. 41,282 (Aug. 7, 1996).
52 Id. at § 3610(b)(1).
53 Id. at § 3610(b). If the Secretary has reasonable cause to believe that the respondent has
breached a conciliation agreement, the Secretary must refer the matter to the Attorney
General with a recommendation that a civil action be filed to enforce the agreement. Id. at
§ 3610(c).
54 Id. at § 3610(e)(1). Upon receipt of such authorization, the Attorney General must
promptly commence and maintain such an action.
55 Id. at § 3610(g)(2).
56 Id. at § 3612(a). Upon such an election the Secretary must authorize a civil action, which
the Attorney General (within thirty days) must commence and maintain on behalf of the
aggrieved person, who may intervene as of right in that civil action. Here, if the federal court
finds discriminatory practices, it may award actual and punitive damages to the extent it
would in a civil action commenced by a private person. Id. at § 3612(o).

---

CRS-9
appear in person, be represented by counsel, cross-examine witnesses, and issue
subpoenas.57
The ALJ must commence a hearing within 120 days after the issuance of the
charge, unless it is impracticable to do so. He also must make findings of fact and
conclusions of law within 60 days after termination of the hearing, unless it is
impracticable to do so. If the ALJ finds that the respondent has engaged or is about
to engage in a discriminatory housing practice, he may order relief, which may
include actual damages and injunctive or other equitable relief. The ALJ may also
impose a civil penalty of up to $11,000 for a first offense or more if it is not a first
offense.58
The Secretary may review any finding, conclusion, or order issued by an ALJ.59
Parties may appeal such orders to the federal courts.60 The Secretary may also seek
enforcement of an administrative order.61 The court of appeals may affirm, modify,
or set aside, in whole or in part, the order, or remand it to the ALJ for further
proceeding. The court can also grant any party, including intervening parties, "such
temporary relief, restraining order, or other order as the court deems just and
proper.”62
In any administrative proceeding or any civil action brought in lieu of an
administrative proceeding, the ALJ or the court, as the case may be, "may allow the
prevailing party, other than the United States, a reasonable attorney's fee and costs.”63
57 Id. at § 3612(c).
58 Id. at § 3612(g).
59 Id. at § 3612(h).
60 Id. at § 3612(i).
61 Id. at § 3612(j).
62 Id. at § 3612(k).
63 Id. at § 3612(p). See also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health
and Human Resources, 532 U.S. 598 (denying attorneys’ fees to plaintiffs who tried to claim
prevailing party status under the rejected “catalyst theory”). In addition, the United States
is liable for such fees and costs to the extent provided by the Equal Access to Justice Act
(EAJA), which makes the United States liable for the prevailing party's attorneys' fees if the
United States fails to prove that its position "was substantially justified or that special
circumstances make an award unjust." 5 U.S.C. § 504(a)(1), 28 U.S.C. § 2412(d)(1)(A). In
most cases it is to be expected that the United States, even if it loses a case, will be able to
prove that its position was "substantially justified,” i.e., "reasonable," and therefore will not
be liable for fees. If the United States is liable for fees under the EAJA, such fees may not
be "in excess of $75 per hour unless the court determines that an increase in the cost of
living or a special factor, such as the limited availability of qualified attorneys or agents for
the proceeding involved, justifies a higher fee." 5 U.S.C. § 504(b)(1), 28 U.S.C. §
2412(d)(2)(A). A court may, however, award reasonable attorneys’ fees without regard to
the $75 per hour ceiling if it finds that the United States has acted in bad faith.

---

CRS-10
Enforcement by the Attorney General
Whenever the Attorney General has reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of resistance to the full
enjoyment of any of the rights granted by the FHA, or that any group of persons has
been denied any right granted by the Act and such denial raises an issue of general
public importance, he may commence a civil action in any federal district court.64
The Attorney General may also bring an action for appropriate relief with
respect to a discriminatory housing practice or breach of a conciliation agreement
referred to him by the Secretary.65 In a civil action brought by the Attorney General,
the court may award preventive relief, such as an injunction or a restraining order,
assess civil penalties not to exceed $50,000 for the first violation and $100,000 for
the second violation, and award such other relief as the court may deem appropriate,
including monetary damages and reasonable attorneys’ fees and costs.66
Enforcement by Private Persons
An aggrieved person may commence a civil action, in a federal district court or
in a state court, within two years after the occurrence or the termination of an alleged
discriminatory housing practice or the breach of a conciliation agreement.67 If the
Secretary has filed a complaint, an aggrieved person may still bring a private suit,
unless the Secretary has obtained a conciliation agreement or an ALJ has commenced
a hearing.68 The Attorney General may intervene in a private suit if he determines that
the suit is of general public importance. If the court finds that a discriminatory
practice has occurred or is about to occur, it may award to the plaintiff actual and
punitive damages, a permanent or temporary injunction, a temporary restraining
order, or other order, including such affirmative action as may be appropriate.69 The
court may also "allow the prevailing party, other than the United States, a reasonable
attorney's fee and costs. The United States shall be liable for such fees and costs to
the same extent as a private person."70
64 42 U.S.C. § 3614(a). Upon timely application, an aggrieved person may intervene in a
civil action commenced by the Attorney General. Id. at § 3614(e).
65 Id. at § 3614(b).
66 See supra note 63.
67 42 U.S.C. § 3613(a)(1). An "aggrieved person" is defined as any person who claims to
have been injured by a discriminatory housing practice or believes that such a practice is
about to occur. 42 U.S.C. § 3602(i). The computation of the two year period does not
include any time during which an administrative proceeding was pending.
68 Id. at §§ 3613(a)(2)-(3).
69 Id. at § 3613(c).
70 Id. at § 3613(c)(2). As with other provisions authorizing awards of attorneys' fees in civil
rights actions brought by private persons, this provision has been interpreted to contain a
dual standard for plaintiffs and defendants. A successful plaintiff should ordinarily recover
an attorney's fee unless special circumstances would render an award unjust, but a
(continued...)

---

CRS-11
IV. The Fair Housing Act and Insurance
The FHA does not explicitly address the issue of housing insurance, but
language in sections 804 and 805 of the Act has been construed to apply to insurance.
Section 804 makes it unlawful --
(a) To refuse to sell or rent . . . or otherwise make unavailable or
deny, a dwelling to any person because of race [or the other
prohibited categories].
(b) To discriminate against any person in the terms, conditions,
or privileges of sale or rental of a dwelling, or in the provision
of services or facilities in connection therewith, because of race
[or the other prohibited categories].71
Section 805 makes it unlawful to discriminate on the basis of any of the
prohibited categories in --
The making or purchasing of loans or providing other financial
assistance.72
HUD regulations prohibit the refusal to provide "property or hazard insurance
for dwellings or providing such . . . insurance differently because of race, color,
religion, sex, handicap, familial status, or national origin."73 The regulations do not
elaborate upon this prohibition against insurance discrimination. Although HUD
originally announced its intent to issue regulations expanding on this prohibition in
1994,74 the agency suspended its proposed rulemaking one year later.75 No new
regulations have been issued subsequent to this suspension, although the general
prohibition against discrimination in property insurance remains in effect.
Over the years, the federal courts have addressed the question of whether the
FHA covers insurance discrimination. Several early district court precedents
established that the FHA does indeed apply to insurance discrimination.76 A majority
70 (...continued)
successful defendant should recover fees only if the court finds that the plaintiff's action was
"frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it
clearly became so." Brooks v. Center Park Associates, 33 F.3d 585, 587 (6th Cir. 1994).
71 42 U.S.C. § 3604.
72 Id. at § 3605.
73 24 C.F.R. § 100.70(d)(4).
74 Discrimination in Property Insurance Under the Fair Housing Act; Advance Notice of
Proposed Rulemaking, 59 Fed. Reg. 41,995 (Aug. 16, 1994).
75 Gregory D. Squires, Why an Insurance Regulation to Prohibit Redlining?, 31 J. Marshall
L. Rev. 489, 489 (1998).
76 See, e.g., McDiarmid v. Economy Fire & Casualty Co., 604 F. Supp. 105 (S.D. Ohio
(continued...)

---

CRS-12
of the circuit courts have upheld this result in subsequent decisions.77 For example,
in N.A.A.C.P. v. American Family Mutual Insurance Co., the Court of Appeals for
the Seventh Circuit held that §§ 804(a) and 804(b), quoted above, cover insurance.78
Specifically, the court found that, by refusing to write policies, an insurer makes a
dwelling "unavailable" under § 804(a), and that property insurance is a "service"
rendered "in connection" with the sale of a dwelling under § 804(b).
Furthermore, in American Family, the Seventh Circuit rejected the reasoning in
Mackey v. Nationwide Insurance Companies, the only circuit court decision to
conclude that the FHA did not apply to insurance discrimination. According to the
Seventh Circuit, the post-Mackey 1988 amendments to the FHA gave HUD the
authority to make rules to enforce the Act and that the regulations prohibiting
insurance discrimination that HUD promulgated pursuant to this authority are entitled
to judicial deference.79 Therefore, even if Mackey had been correct at the time it was
decided, "[e]vents have bypassed [it]."80
The most recent court of appeals case on the subject, Nationwide Mutual
Insurance Co. v. Cisneros, agreed with the Seventh Circuit that the FHA applies to
insurance.81 It also noted "that many courts have applied § 3604 to a number of
parties and practices not mentioned in §§ 3604(b) and 3605," including imposing
building height limitations, issuing zoning permits, rezoning property intended for
a low-income housing project, and denying sewer hook-ups.82
76 (...continued)
1984); Dunn v. Midwestern Indem. Mid-American Fire & Casualty Co., 472 F. Supp. 1106
(S.D. Ohio 1979).
77 See, e.g., Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351 (6th Cir. 1995), cert. denied,
516 U.S. 1140 (1996); N.A.A.C.P. v. American Family Mut. Ins. Co., 978 F.2d 287 (7th Cir.
1992), cert. denied, 508 U.S. 907 (1993). But see Mackey v. Nationwide Ins. Cos., 724 F.2d
419, 423 (4th Cir. 1984).
78 978 F.2d 287 (7th Cir. 1992), cert. denied, 508 U.S. 907 (1993).
79 Id. at 300.
80 Id. at 301.
81 52 F.3d 1351 (6th Cir. 1995), cert. denied, 516 U.S. 1140 (1996)..
82 Id. at 1357 (citations omitted). The courts of appeals in Mackey, American Family, and
Nationwide all agreed that the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015, does not
preclude application of the FHA to insurance. The McCarran Ferguson Act provides, in
pertinent part: “No Act of Congress shall be construed to invalidate, impair, or supersede
any law enacted by any State for the purpose of regulating the business of insurance . . .
unless such Act specifically relates to the business of insurance,” 15 U.S.C. § 1012(b). The
courts of appeals agreed that "No Act of Congress" includes the FHA, and that the FHA
does not "specifically relate to the business of insurance." Therefore, the FHA may not
"invalidate, impair, or supersede any law enacted by any State for the purpose of regulating
the business of insurance." However, the courts also agreed that the FHA does not
invalidate, impair, or supersede any law in the state in question in each case, noting that the
presence of a general state regulatory scheme does not show that any particular state law
would be invalidated, impaired, or superseded by application of the FHA.

---

CRS-13
In contrast, a federal district court has held that the FHA does not prohibit
discrimination in connection with mortgage disability insurance, because section 805
prohibits discrimination in the provision of housing-related "financial assistance" and
mortgage disability insurance, unlike property and hazard insurance, is not a
prerequisite to obtaining financing and thus is not a form of "financial assistance."83
V. Familial Discrimination and Housing for Older
Persons
The Fair Housing Amendments Act of 1988 added "handicap" (physical or
mental) and "familial status" (living with children under 18) to the bases upon which
discrimination in housing is prohibited.84 One exception to the 1988 law barring
familial status discrimination, however, is that housing for older persons may
discriminate against families with children. In addition, the Housing for Older
Persons Act of 1995 further amended the familial status provision of the FHA to
make it easier for housing for older persons to discriminate against families with
children.85
The committee report that accompanied the 1988 amendments states, with
respect to the familial status provision:
In many parts of the country families with children are refused
housing despite their ability to pay for it. Although 16 states
have recognized this problem and have proscribed this type of
discrimination to a certain extent, many of these state laws are
not effective. . . . The bill specifically exempts housing for older
persons. The Committee recognizes that some older Americans
have chosen to live together with fellow senior citizen[s] in
retirement type communities. The Committee appreciates the
83 Doukas v. Metropolitan Life Insurance Co., 882 F. Supp. 1197 (D.N.H. 1995).
84 The statute (42 U.S.C. § 3602(k)) and the regulation (24 C.F.R. § 100.20) both define
"familial status" as follows:
"Familial status" means one or more individuals (who have not
attained the age of 18 years) being domiciled with --
(1) a parent or another individual having legal custody of
such individual or individuals; or
(2) the designee of such parent or other person having
such custody, with the written permission of such parent
or other person.
The protections afforded against discrimination on the basis of
familial status shall apply to any person who is pregnant or is in the
process of securing legal custody of any individual who has not
attained the age of 18 years.
85 Pub. L. No. 104-76.

---

CRS-14
interest and expectation these individuals have in living in
environments tailored to their specific needs.86
The FHA provisions regarding familial status do not "apply with respect to
housing for older persons," a term that has three alternative definitions. Although
“housing for older persons” was originally defined in the 1988 amendments, a
portion of this definition proved controversial and was later amended in 1995.87 As
amended, "housing for older persons" is defined as housing that is (1) provided under
any state or federal housing program for the elderly, (2) “intended for and solely
occupied by persons 62 years of age or older,” or (3) “intended and operated for
occupancy by persons 55 years of age or older.”88
Under the last category of housing for the elderly, there are three additional
requirements that must be met in order for the housing to meet the statutory
definition of housing for older persons. First, at least 80 percent of the occupied units
must be occupied by at least one person who is 55 years of age or older. Second, the
housing facility or community must publish and adhere to policies and procedures
that demonstrate that it is intended to be housing for the elderly. Third, the housing
facility must comply with HUD rules for the verification of occupancy.89 Despite the
complexity of these requirements, an individual who believes in good faith that his
or her housing facility qualifies for the familial status exemption will not be held
liable for money damages, even if the facility does not in fact qualify as housing for
older persons.90
VI. Discrimination Based on Handicap91
In addition to prohibiting discrimination on the grounds discussed above, the
FHA also prohibits discrimination in housing on the basis of handicap. The Act
defines "handicap" as “(1) a physical or mental impairment which substantially limits
one or more of such person's major life activities, (2) a record of having such an
impairment, or (3) being regarded as having such an impairment.”92 The definition
of handicap, however, does not include the current, illegal use of or addiction to a
86 H.R. Rep. No. 100-711, 100th Cong., 2d Sess. 19, 21 (1988); reprinted in 1988
U.S.C.C.A.N. 2180, 2182.
87 Pub. L. No. 104-76 (codified as amended at 42 U.S.C. § 3607(b)(2)(C)).
88 42 U.S.C. § 3607(b)(2).
89 Id. at § 3607(b)(2)(C). The HUD rules that implement the requirements for the third
category of housing for older persons are found at 24 C.F.R. §§ 100.304-07.
90 Id. at § 3607(b)(5).
91 The generally accepted term is now “individual with a disability.” However, since the
FHA still uses the term “handicapped,” that term is retained here in the discussion of the
FHA.
92 Id. at § 3602(h).

---

CRS-15
controlled substance.93 Since this exclusion does not apply to former drug users, the
definition of handicap thus includes individuals who have drug or alcohol problems
that are severe enough to substantially impair a major life activity, but who are not
current illegal users or addicts. As a result, recovering alcoholics or addicts are
protected under the FHA.
The Americans with Disabilities Act (ADA),94 which was enacted subsequent
to the 1988 FHA amendments, does not apply to housing, although it does cover
"public accommodations," including "an inn, hotel, motel, or other place of lodging
except for an establishment located within a building that contains not more than five
rooms for rent or hire and that is actually occupied by the proprietor of such
establishment as the residence of such proprietor."95 The ADA also covers
"commercial facilities," which it defines as facilities intended for nonresidential use
whose operations affect commerce. The term excludes, however, "facilities that are
covered or expressly exempted from coverage under the Fair Housing Act." In other
words, the ADA leaves to the FHA the determination as to which statute applies to
any particular facility.
The Department of Justice's comments on its ADA rules address mixed use
facilities, such as large hotels that have separate residential apartment wings. The
comments explain that the residential wing would be covered by the FHA even
though the rest of the hotel would be covered by the ADA. However, "[i]f a hotel
allows both residential and short-term stays, but does not allocate space for these
different uses in separate, discrete units, both the ADA and the Fair Housing Act may
apply to the facility. Such determinations will need to be made on a case-by-case
basis. . . . A similar analysis would also be applied to other residential facilities that
provide social services, including homeless shelters, shelters for people seeking
refuge from domestic violence, nursing homes, residential care facilities, and other
facilities where persons may reside for varying lengths of time."96
Discrimination on the basis of handicap under the FHA includes refusal to
permit a handicapped person, at his own expense, reasonable modifications of
existing premises, if the modifications are necessary to afford the handicapped person
full enjoyment of the premises.97 Nevertheless, a landlord may condition permission
for a modification on a handicapped renter's agreeing to restore the interior of the
premises to its former condition. A landlord, however, may not increase the security
deposit of a handicapped person because of such modifications, although he may
negotiate as part of a restoration agreement a provision requiring that the
93 Id. at § 3602(h).
94 Id. at § 12101 et seq. For a more detailed discussion of the ADA, see CRS Report 98-
921A.
95 Id. at § 12181(7)(A).
96 56 Fed. Reg. 35,552 (July 26, 1991).
97 42 U.S.C. § 3604(f)(3)(A).

---

CRS-16
handicapped person pay into an escrow account a reasonable amount of money not
to exceed the cost of restorations.98
Discrimination against a handicapped person also includes "refusal to make
reasonable accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford such person equal opportunity to use
and enjoy the dwelling."99 In addition, it includes, in connection with the design and
construction of a covered multifamily dwelling for first occupancy after March 13,
1991, a failure to design and construct those dwellings in such manner that they are
readily accessible to and usable by handicapped persons.100
It is also unlawful to inquire whether an applicant for a dwelling has a handicap
or to inquire as to the severity of a handicap. However, landlords may make certain
inquiries concerning handicaps, provided the inquiries are made of all persons
regardless of whether they are handicapped.101 The FHA's protection for handicapped
persons does not require "that a dwelling be made available to an individual 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."102
Several other federal laws also protect individuals with disabilities from housing
discrimination. Under section 504 of the Rehabilitation Act of 1973, discrimination
against individuals with disabilities is prohibited in any federally funded or federally
conducted program or activity,103 and under the Architectural Barriers Act of 1968,
98 24 C.F.R. § 100.203(a).
99 42 U.S.C. § 3604(f)(3)(B)). As examples of reasonable accommodations required by the
Act, the regulations state that seeing eye dogs must be permitted even if a building otherwise
prohibits pets, and handicapped parking spaces must be made available even if spaces are
otherwise assigned on a first-come-first-served basis. 24 C.F.R. § 100.204(b).
100 42 U.S.C. § 3604(f)(3)(C). "Covered multifamily dwellings" have four or more dwelling
units. 24 C.F.R. § 100.201. In 1991, HUD published final Fair Housing Accessibility
Guidelines to provide builders and developers with technical guidance on how to comply
with the accessibility requirements of the FHA that are applicable to certain multifamily
dwellings designed and constructed for first occupancy after March 13, 1991. 56 Fed. Reg.
9,472 (Mar. 6, 1991). In 1994, HUD published a supplement to these guidelines. 59 Fed.
Reg. 33,362 (June 28, 1994).
101 24 C.F.R. § 100.202(c). Such inquiries may include: (1) an applicant's ability to meet the
requirements of ownership or tenancy, (2) whether an applicant qualifies for housing
reserved for handicapped persons, (3) whether an applicant is qualified for priority housing
available to persons who are handicapped, (4) whether an applicant is a current illegal
abuser or addict of a controlled substance, or whether an applicant has been convicted of the
illegal manufacture or distribution of a controlled substance.
102 42 U.S.C. § 3604(f)(9).
103 29 U.S.C. § 794(a).

---

CRS-17
certain publicly owned residential buildings and facilities must be accessible to
individuals with physical disabilities.104
Group Homes and Zoning Restrictions
The FHA’s prohibition against discrimination on the basis of handicap extends
to protect group homes for the disabled from discrimination via state or local zoning
laws. Nevertheless, some municipalities have attempted to restrict the location of
group homes for disabled individuals by enacting zoning ordinances that establish
occupancy limits for group homes.105 Typically established to maintain the residential
character of certain neighborhoods, such occupancy limits frequently operate to
restrict group homes for recovering drug users or other disabled individuals. As a
result, these limits continue to be the subject of controversy and legal challenges
under the FHA.106
Indeed, in 1995, the Supreme Court considered the issue of zoning restrictions
on group homes for the handicapped. In City of Edmonds v. Oxford House, Inc., a
group home for 10 to 12 adults recovering from alcoholism and drug addiction was
cited for violating a city ordinance because it was located in a neighborhood zoned
for single-family residences.107 The ordinance that it was charged with violating
defined "family" as "persons [without regard to number] related by genetics,
adoption, or marriage, or a group of five or fewer [unrelated] persons."108
The group home acknowledged that it was in violation of the ordinance, but
claimed that it was entitled to be in the neighborhood anyway because the FHA
required the city to "make reasonable accommodations in rules, policies, practices,
or services, when such accommodations may be necessary to afford [handicapped]
person[s] equal opportunity to use and enjoy a dwelling."109 The city responded that
it was not required to accommodate the group home because the FHA exempts from
104 42 U.S.C. §§ 4151-57.
105 Discrimination against group homes for the disabled is prohibited not only by the FHA,
but by the Constitution, to the extent that such discrimination is found to be irrational. In
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), the Supreme Court held
unconstitutional a zoning ordinance that allowed group homes generally but prohibited them
for mentally retarded individuals. The basis for the decision was that the ordinance was
based on irrational prejudice; i.e., the discrimination failed a "rational basis" test under the
equal protection clause of the Fourteenth Amendment.
106 Michael J. Davis, Protecting Group Homes for the Non-Handicapped: Zoning in the
Post-Edmonds Era, 46 Kan. L. Rev. 777 (1998).
107 514 U.S. 725 (1995).
108 Id. at 728.
109 42 U.S.C. § 3604(f)(3)(B).

---

CRS-18
its coverage "any reasonable local, State, or Federal restrictions regarding the
maximum number of occupants permitted to occupy a dwelling.”110
The Supreme Court held that this exemption did not permit the city's zoning
ordinance because the ordinance’s definition of family was not a “restriction
regarding the maximum number of occupants permitted to occupy a dwelling.”111
According to the Court, the FHA "does not exempt prescriptions of the family-
defining kind, i.e., provisions designed to foster the family character of a
neighborhood. Instead, § 3607(b)(1)'s absolute exemption removes from the FHA's
scope only total occupancy limits, i.e., numerical ceilings that serve to prevent
overcrowding in living quarters."112 Because the ordinance set a numerical ceiling for
unrelated occupants but not related occupants, it was clearly designed to preserve the
family character of neighborhoods, not to place overall occupancy limits on
residences. As a result, the Court held that the ordinance was not exempt from the
FHA’s prohibition against disability discrimination, thus rendering vulnerable to
legal challenge under the FHA any zoning ordinance not based on neutral, overall
occupancy limits for all types of residences. Of course, the decision does not prevent
zoning ordinances from being applied to restrict group homes occupied by student
fraternities or others who are not protected by the FHA.113
Furthermore, although the Court held that the ordinance was not exempt from
the FHA, it did not decide whether or not the ordinance actually violated the FHA.
Under the statute, a violation occurs only if (1) the ordinance unlawfully
discriminates against handicapped individuals, and (2) the city refuses to grant the
group home an exemption from the ordinance as a "reasonable accommodation"
necessary to afford handicapped persons "equal opportunity to use and enjoy a
dwelling."114 The Supreme Court sent the case back to the lower court to decide these
questions. In subsequent cases, the Courts of Appeals have reached a variety of
results when considering these issues with regard to non-uniform occupancy limits
and other non-uniform requirements imposed on group homes for the handicapped.
Under Edmonds, zoning ordinances that fail to impose uniform conditions on
all residences may be challenged under the FHA for facially discriminating against
group homes. The Courts of Appeals are split with regard to whether non-uniform
conditions such as occupancy limits discriminate on their face against handicapped
individuals. In Oxford House-C v. City of St. Louis, for example, the Eighth Circuit
held that an ordinance that limited the number of group home occupants to eight
residents did not facially discriminate against the handicapped because the ordinance
also capped other types of housing for unrelated individuals and was therefore neutral
110 Id. at § 3607(b)(1).
111 Edmonds, 514 U.S. at 731.
112 Id. at 728.
113 Joan Biskupic, Court Acts in Housing Bias Dispute: Zoning Can’t Be Used to Exclude
Group Homes for Disabled, Justices Say, Washington Post, May 16, 1995, at A3.
114 42 U.S.C. § 3604(f)(3)(B).

---

CRS-19
with regard to handicap.115 Since the ordinance was deemed neutral, the Eighth
Circuit held that the city need only provide a rational basis for enacting the
ordinance, a requirement which was satisfied by the city’s demonstration of an
interest in preserving residential neighborhoods.116 Furthermore, the Eighth Circuit
held that the city “did not fail to accommodate the Oxford House as the Act requires”
because the group home refused to apply for a variance for higher occupancy limits
and therefore never gave the city the opportunity to grant such accommodation.117
In contrast, other federal Courts of Appeals have concluded that non-uniform
conditions discriminate on their face. In Larkin v. Department of Social Services, for
example, the Sixth Circuit addressed a state licensing requirement that group homes
for the handicapped may not be spaced within a 1,500 foot radius of other such group
homes and must notify the communities in which the group homes are to be
located.118 The court ruled that these spacing and notification requirements
discriminated on their face, holding that “statutes that single out for regulation group
homes for the handicapped are facially discriminatory.”119 Once the court ruled that
these non-uniform conditions were facially discriminatory, the test shifted from a
rational basis test to a more demanding test that “requires the defendant to show that
the discriminatory statutes either (1) are justified by individualized safety concerns;
or (2) really benefit, rather than discriminate against, the handicapped, and are not
based on unsupported stereotypes.”120 Holding that the state had failed to meet either
one of these burdens, the Sixth Circuit never needed to reach the question of
reasonable accommodation.
Although group home advocates have successfully challenged certain special
conditions imposed on group homes, they have been less successful when attacking
ordinances on reasonable accommodation grounds. For example, advocates have
sued in some cases where state or local governments have refused to waive uniform
occupancy limits in order to allow larger group home facilities.121 In Gamble v. City
of Escondido, for example, the Ninth Circuit held that the city’s refusal to grant a
conditional use permit for construction of a large facility for the handicapped did not
violate the FHA’s reasonable accommodation provision.122 Other Courts of Appeals
have reached similar conclusions.123 Ultimately, these and other legal issues
115 77 F.3d 249, 251-52 (8th Cir. 1996).
116 Id. at 252.
117 Id. at 253.
118 89 F.3d 285 (6th Cir. 1996).
119 Id. at 290.
120 Id. See also Bangerter v. Orem City Corp., 46 F.3d 1491, 1503-04 (10th Cir. 1995).
121 Michael J. Davis, Protecting Group Homes for the Non-Handicapped: Zoning in the
Post-Edmonds Era, 46 Kan. L. Rev. 777, 786-87 (1998).
122 104 F.3d 300 (9th Cir. 1997).
123 See, e.g., Bryant Woods Inn v. Howard County, 124 F.3d 597 (4h Cir. 1997); Elderhaven
(continued...)

---

CRS-20
surrounding group homes for the handicapped continue to be among the most heavily
litigated areas of the Fair Housing Act.
123 (...continued)
Inc. v. City of Lubbock, 98 F.3d 175 (5th Cir. 1996). But see Hovsons, Inc. v. Township of
Brick, 89 F.3d 1096 (3rd Cir. 1996).

---