Fair Housing A housing provider violates the Fair Housing Act when the provider’s policy or practice has an unjustified discriminatory effect, even when the provider had no intent to discriminate.

Fair Housing Under this standard, a facially-neutral policy or practice that has a discriminatory effect violates the Act if it is not supported by a legally sufficient justification.

Fair Housing Thus, where a policy or practice that restricts access to housing on the basis of criminal history has a disparate impact on individuals of a particular race, national origin, or other protected class, such policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory interest of the housing provider, or if such interest could be served by another practice that has a less discriminatory effect.

Fair Housing Policies that exclude persons based on criminal history must be tailored to serve the housing provider’s substantial, legitimate, nondiscriminatory interest and take into consideration such factors as the type of the crime and the length of the time since conviction. Where a policy or practice excludes individuals with only certain types of convictions, a housing provider will still bear the burden of proving that any discriminatory effect caused by such policy or practice is justified. Such a determination must be made on a case-by-case basis.

Fair Housing Landlords may refuse a tenant if they were: “convicted … of the illegal manufacture or distribution of a controlled substance as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).”

Fair Housing Based on HUD guidance, three questions about policy and procedures (p&p) should be asked: Does policy or practice have a discriminatory effect? Is the policy or practice necessary to achieve a substantial, legitimate, nondiscriminatory interest? and Is there a less discriminatory alternative?

Fair Housing Licensees should not be making such determinations Landlords need to make a policy and/or procedure with the advice of legal counsel Licensees that assume such liability should consult with their own legal counsel NYSAR will not provide information as to what should be included in a policy and/or procedure or whether it is in compliance or if a tenant should/should not be considered

Fair Housing Gender identity is now a protected class by statute through regulation. Under NYS Human Rights Law “Sex” is a protected class. Executive Law §296 9 NYCRR §466.13: The term “sex” when used in the Human Rights Law includes gender identity and the status of being transgender.

Fair Housing Gender identity: having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth. Transgender person: an individual who has a gender identity different from the sex assigned to that individual at birth. Gender dysphoria: a medical condition related to an individual having a gender identity different from the sex assigned at birth.

Fair Housing For REALTORS, there is no change. Gender identity had been protected by the NAR Code of Ethics since 2014.

Article 10 REALTORS® shall not deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. REALTORS® shall not be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. (Amended 1/14)

Article 10 REALTORS®, in their real estate employment practices, shall not discriminate against any person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. (Amended 1/14)

Standard of Practice 10-3 REALTORS® shall not print, display or circulate any statement or advertisement with respect to selling or renting of a property that indicates any preference, limitations or discrimination based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity. (Adopted 1/94, Renumbered 1/05 and 1/06, Amended 1/14)