We are fortunate to live in a country and a state where we cannot be turned away from housing for discriminatory reasons. Federal discrimination laws and Massachusetts discrimination laws combine to give a long list of fair housing laws in Massachusetts.
Fair Housing Laws
Both the United States Federal Government and Massachusetts have a list of "protected classes," which are groups of people who cannot be turned away from housing, employment, or certain other situations because of our membership in that protected class. Members of a protected class can be turned away for other reasons.
- Presentation: Screening Tenants on Unemployment, and other Fair Housing Considerations
- Presentation: Choosing without Discriminating: Tenant Selection and Protected Classes
- Video: Discrimination Refresher
The federal government says you cannot discriminate about the following:
- National origin
- Family status
- microbiological, including HIV and COVID-19
Massachusetts agrees that all of the above are illegal. Also, you can't discriminate about:
- Sexual orientation
- Gender identity
- Marital status
- Genetic information
- Veteran status
- Membership in the armed forces
- Receiving public assistance
- Section 8
- "Welfare" or more accurately any government program
These categories apply to housing. Employers or others may have different requirements to meet.
If you are perceived to belong to a protected class, or if you are associated with a protected class, you are also protected as if you were a member of that protected class.
The Massachusetts Commission Against Discrimination is in charge of making sure these anti-discrimination laws are followed in housing and employment. They use federal funds to hire third party "testers" for landlords, in particular.
How Testing Works
Two sets of testers (actors) will be given substantially similar profiles. They will each have similar income, similar credit, and similar good chance of qualifying for your apartment. One will be a member of a protected class, the other will not be in the same class. Both sets will pretend to be prospective tenants and will call you separately to inquire about the apartment and/or to schedule tours.
The testers will pay attention to every little detail about what you say and do. They will take notes, likely without you realizing. They will compare notes back at the office. If there is any material difference between what you say and do with one person vs with another, you will be investigated more deeply and/or litigated against.
Suppose the rent is $1,500/mo and you write in the ad, "Perfect for a young husband and wife, or boyfriend and girlfriend." You think you're being clever because you have avoided discrimination about marital status! You have covered all the bases! We will see how this seemingly friendly statement will result in a discrimination citation.
Don't post discriminatory ads. Describe the apartment you have, not the people you want, and don't describe any feature that would tend to exclude someone.
Based on your ad, the MCAD will send a well qualified man and a woman trained as testers to take a tour. You shake their hands and quickly come to like them -- they remind you of yourself -- so you chat extensively and after a while offer to reduce the rent to $1,480/mo. That's good business practice, right? Try to get good tenants before someone else rents to them!
Your next tour is to two well qualified women who state that they are same-sex partners. You're fixing a mini-blind when they arrive and you don't shake their hands. You don't particularly find much in common with them and so conversation is slow. You don't mention anything about reducing the rent. They seem nice enough, though, and the rest of their tour goes the same as the first one.
After these two tours, MCAD will unfortunately have two different reports. One says you shook the hands of, chatted with, and lowered the rent for a straight couple. The other says you didn't shake the hands of, chat with, or lower the rent for an equally qualified LGBT couple. You probably didn't even realize you did this. But your ad didn't contemplate same-sex partners, and now that you have been tested there is further evidence that you have a bias in favor of straight people and against LGBT people. In this situation, you would now be in very hot water.
Treat every applicant the same. Have a standardized phone interview or tour process.
Violations of the Fair Housing Act are punishable by fines of up to $50,000 (third offense) for each offense. The MCAD litigates between 3,000 and 4,000 cases per year.
Examples of Discriminatory Statements
"This building is full of Norwegian people. Do you speak Norwegian?"
This is a real example of a Norwegian landlord who was trying to be friendly, making chit-chat on the way from the street to the apartment. The implication of their statements was that if you're not Norwegian, you're not welcome here.
Do not consider national origin during a rental screen. Do not inquire about it.
"This apartment is not deleaded. It is not safe for children."
This is commonly written into ads, but it is an unlawfully discriminatory statement. Even though they were being honest and thinking about child safety, the lead law in Massachusetts puts owners in a Catch-22: you cannot have children living in an apartment with lead hazards, but you cannot turn away applicants with children. You must delead!
You are not fully ready to list an apartment for rent unless you have a delead certificate.
"No Section 8."
This is commonly written into ads, but it is an unlawfully discriminatory statement. You cannot discriminate against someone because they receive public assistance, even if you are willing to work with some administrators but not others.
Section 8 guarantees that an applicant will pass a 3x income to rent ratio, provided your rent is reasonable for the area and the condition of the apartment.
Duty to Translate to Avoid Discrimination
Does a landlord have to provide documents in other languages in order to avoid discrimination on the basis of national origin? The answer is, "no, but maybe?"
All landlords must permit a tenant to use translation services.
English may not be a requirement for renting. We don't have case law but we can cite Jamie Williamson, former Chair of the MCAD, and a conversation with MassLandlords staff on November 10, 2016. And here's why it makes sense:
For written communication, like eviction notices, landlords can download snippets of the languages commonly spoken in MA to say, "This is an important document. Please have it translated."
For oral communication, including tenant screening and signing the rental agreement, landlords must permit and should ask the tenant to locate translation services. This way you both understand one another fully.
"Language line" is something used by the Commonwealth, the tenant may have access to this or other translation services.
Any landlord may be subjected to a "reasonableness" test when dealing with language barriers
If a landlord delays or otherwise doesn't cooperate with requests to use translation, and a claimant alleges discrimination, the landlord may liable.
It will depend on whether it would have been reasonable for the landlord, given their financial position, to accommodate delays or other expense in order to communicate fully with the tenant.
For a large landlord, it might be reasonable to provide rental applications in Spanish, a common language in Massachusetts, but not Bhutanese (Dzongkha), an uncommon one. This would help Spanish-only speakers complete applications as quickly as English speakers when applying for apartments, avoiding claims of disparate impact. It would also likely be reasonable to delay review of all applications a day so that the Bhutanese speakers can get a translator to fill out your application.
For a small landlord, it might be reasonable to provide documents only in English, and to communicate only in English, but to permit the tenant to use translation services for completing the forms and discussing the apartment.
For the purpose of emergency communications and maintenance requests, you should verify that the translation services used at startup will remain available throughout the tenancy.
Can I ask about Age?
The protections on the basis of age apply to applicants and renters over the age of 40. You cannot turn someone away for being too old. The implications for younger adults are not positive. We aren't recommending you do this, but you can turn away college students,
for instance, since they are over 18 (not children) and under 40 (not protected by the "age" protected class).
It is okay to ask for a government issued ID for the purpose of running a background check. You cannot run a background check without an ID, so the fact that it discloses date of birth is not on its face discriminatory.
It is okay to ask for everyone over the age of 18 to identify themselves for the purpose of completing applications and signing a lease.
It is okay to ask for the age of children under six for lead compliance after you have already offered to create a tenancy.
There are exceptions to the "over 40" protection for registered retirement communities operating 55+ or 62+, or for federal low-income housing tax credits or project subsidies. Consult with an attorney if you operate in one of these markets.
Applicants and Renters Living with Disabilities
A tenant or prospective tenant may request a change to the apartment or to your rules. This change is called an "accommodation". If it would be reasonable for you to grant this accommodation, you must grant it, even if it costs you money that a non-disabled tenant wouldn't cost.
- If there are ten or more units in a complex, regardless of whether they are contiguous (touching), reasonable accommodations are at the owner's expense.
- If there are fewer than ten units on a property, the renter can be asked to pay for the improvement and the restoration if the accommodation materially alters the marketability of the housing.
When someone requests an accommodation, you should not impose undue delays or bureaucracy in an effort to kill the request. This will be perceived as discrimination.
First, whether the request was verbal or in writing, create a written summary that acknowledges the request and your intent to consider it. Your written summary can be email, text message, or a letter. For instance, "Thank you for requesting handrails into your bathtub. If you don't ask, we don't know you need it! Handrails require professional installation and may need wall upgrades. We are evaluating whether we can accommodate you and intend to reply within 30 days."
Second, get quotes for the renovation, ask tenants if they're allergic to dogs, get whatever additional information you need. Try hard to find a solution.
Third, issue a decision within 30 days. Document your rationale and offer alternatives, if applicable, or set a timetable for the accommodation to take effect.
Note that some requests cannot be questioned. For instance, a blind tenant with a seeing eye dog must be taken at face value; you cannot require them to fill out a reasonable accommodation form. For emotional or other hidden disability, you can require third party verification.
It is not discriminatory to state a qualification unrelated to a protected class. Landlords are free to say "no relatives, no coworkers, no employees" even if these people are in protected categories. This prevents family and workplace awkwardness if there should be a rental disagreement.
A landlord's duty not to discriminate extends past the rental application and covers the entire tenancy. This is particularly important for tenants with disabilities who request changes to their rental unit or who want to relocate within the complex. You must engage in dialog and grant all requests that are reasonable, given your financial means.
The Mrs. Murphy Exemption: Owner Occupy Duplex
Mrs. Murphy was a hypothetical landlady invented during passage of the Fair Housing Act to describe how someone might want to discriminate. We don't recommend use of the Mrs. Murphy exemption because everyone should have equal housing opportunity, and also, because you will probably make an error that will result in a discrimination fine. Note that Mrs. Murphy's exemption is complicated and goes away entirely when she hires a realtor or broker to screen tenants.
If you are an owner-occupy landlord in a building with two units, you may be able to make decisions related to certain protected classes (but never race) so long as you never say anything about it. You can never post a discriminatory ad. You can never issue discriminatory rejection letters. Consult with an attorney if you want to learn more and/or use this exemption.
Language that is superficially benign but actually intended to dissuade a member of a protected class from making certain choices will constitute steering, which is unlawful.
Examples of unlawful steering:
"You might be happier applying elsewhere.”
As a landlord, it's not your job to decide where someone wants to apply. It's your job to review applications. Don't say this.
“This unit is not approved for Section 8.”
Section 8 has no approval process, and as we have indicated above, you cannot refuse to participate. Section 8 has unique conditions and advantages that you should learn before you start listing apartments for rent in Massachusetts.
“We typically invite families with children to apply for first-floor units.”
So you're worried about noise? Give each family the benefit of the doubt and let them tour and apply before you decide children can't live upstairs.
“We’d have to delead, that would be a long and difficult process for you to go through.”
The clear message here is that if you need a lead certificate, you're not welcome here. If you have listed an apartment without a lead certificate and the applicants before you have children, then indicate it will be no problem and evaluate their application as if lead were no issue. Then you will have to work quickly to get at least a letter of interim control.
Unless you state a reason unrelated to a protected class, you are steering.
Screening Tenants on Unemployment, and other Fair Housing Considerations
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Choosing without Discriminating: Tenant Selection and Protected Classes
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Discrimination Refresher with Doug Quattrochi
Douglas Quattrochi - Doug
Richard Merlino - Rich
Doug: There are a bunch of federal protected classes. You can’t turn someone away because of their being in one of these groups, race or color. This is like race but what they appear to be regardless of whether they actually are. Religion. Their sex – male or female. National origin – they came from Canada, they came from Russia, whatever. Their family status particularly whether they have children or not. Disability, which covers physical and intellectual impairment.
In Massachusetts, we have a host of other protections, which are all really important.
Sexual orientation—gay, straight, or bi. Marital status, whether you are married and your landlord thinks you should be or shouldn’t be. Your age – old, young, or middle. Your ancestry, whether you claim a particular ethnic heritage.
We don’t see this very often in housing, but genetic information, it applies more to insurers. You can’t turn someone away because they’re predisposed to getting a certain type of cancer or other disease.
Veteran status—comes out of the Vietnam War. You can’t turn someone away because they fought in a conflict you did not endorse or support. Then current membership in the armed forces is also protected. If a renter applies and they’re going to be on tour for the next 9 months and they won’t be in the unit. you have to find a way to make that work. You can’t tell I’m not going to rent to you because I need someone to be in the unit.
Last two categories. Receiving public assistance, which is a big one in Massachusetts. Recurrent benefits count. Supplemental Nutrition Program (SNAP), food stamps count. Section 8, a big one here. You can’t turn someone away because they have it, because you don’t think the government should do that, or because you don’t want to participate in any requirements that the program might enforce like a Section 8 inspection.
Finally, gender identity. It was up on the ballot. It was sustained. It wasn’t repelled, so whether someone is male and dresses female or has transitioned from female to being male, whatever it is, that’s protected as well.
Landlords try to be nice and get in hot water. Here are some examples of things that really happened like this landlord is being friendly and was talking to their renter during a tour and said, “This building is full of Norwegian people. I am Norwegian also. Do you speak Norwegian?” That resulted in a claim for discrimination on the base of national origin because the renter felt they weren’t welcomed if they weren’t Norwegian. Be careful what you talk about.
Similarly here, the landlord here being righteous. “You’re Russian? I’m Ukrainian. I will never forgive what the Russians did to my country and family.” Same kind of thing: you can’t hold a renter responsible for the actions of their state.
This is very common: landlords try to be caring and they say, “This apartment is not deleaded. It’s not safe for children.” Well, that’s not allowed. You have to delead your units. You can’t steer someone away from it because they got kids. Kids are protected under the family status protected class.
Finally, landlords can be fed up and they can be totally done. They don’t ever want to rent Section 8 again. When someone calls, “Do you take Section 8?” The answer is always, “Yes, I take Section 8,” because Section 8 is public assistance and that’s a protected class.
There’s also this concept called steering, which is really important to understand. You might say these things in any kind of conversation, but in a housing context, if they’re not specifically related to a business reason, you could get in trouble for discrimination. For instance, “You might be happier applying elsewhere.” That’s not really saying anything, but if the renter doesn’t perceive that you get a business justification for saying that, they might think you’re saying that because of their religion or because of their race or something protected.
Similarly, sometimes landlords say, “I’ve never done Section 8 before. This unit is not approved for Section 8.” Right, you’re not even steering, but you’re uncertain about it. Section 8 units don’t get approved. They get inspected and they get inspected to the standard that we’re all supposed to be following all the time anyways, so you don’t want to say that. It sounds like you’re saying Section 8 is not welcome.
This one just got a landlord a $25,000 fine four months ago. They said, “We typically invite families with children to apply for first-floor units.” Right? You can’t do that because kids are protected and you let the family have the benefit of the doubt. Are they really going to be noisy? Find and see. Don’t tell them over the phone. I’m not going to show you the second or third floor. Wait and see what the deal is.
Finally, the deleading thing again. “We’d have to delead this unit. That’s going to be a really and long different process for you to go through. Are you sure you want this apartment?” Don’t say that because that’s steering as well.
Unless you’re stating a specific reason unrelated to protected classes, you could get caught. How do they catch us?
Testing. They have federal and state employees who actually go and they send two people to your unit. They’ll send someone who is emotively gay and someone who is very straight acting, and they have the same income, the same type of job, the same credit score. They are both going to take a tour. They’re going to look for differences. They’re going to go to the office and they’ll compare notes.
If one of them got the A tour and all the nice features of the apartment and neighborhood was pointed out and another one got the B tour and the landlord was very down about the place and showed how this thing is broken and the neighbors are noisy, that’s a suggestion that maybe the landlord was steering one of those two people out of the apartment.
The way to avoid testing is don’t post discriminatory ads. That’s how they find you first. Don’t say no Section 8. Don’t talk about kids. Don’t talk about anything like religious institutions. Treat all your tours the same. Everybody who walks in, if they haven’t got an application yet is going to live with an application. That’s the way it’s going to work.
Always follow the numbers. There is a place for gut feel and there is no requirement if you have to rent to a jerk or liar because they’re not a protected class. Attorneys are not a protected class. Your particular family members are not protected. You don't have to rent to jerks and liars, or your family members, or attorneys if that’s not what you want.
Male Audience 1: The reason your graphic is bold.
Doug: [laughter] No. I’m just giving an example of an occupation. You don't have to rent to landlords if you don’t want to rent to other landlords, right? Maybe they will all be nitpicking everything you’re doing wrong, but the idea is keep that carefully in the context of the numbers. Credit score, their eviction record at MassCourts.org. Their public record at iCORI. The landlord references and most importantly, income. None of these eviction problems come up if someone has enough money to pay the rent or too much money, right?
That’s the idea here. There’s a lot of interaction in the real world. Remember your protected classes. Don’t trespass into that territory even if you’re trying to be nice. I don’t want to see anyone in this room getting into a situation where their trying to be open, honest communicative backfired into a discrimination lawsuit for which the maximum fine is $50,000. Okay?
Further Reading on Discrimination
- Attorney General Housing Penalties Decline (Article August 2018)
- Clark v New Bedford Housing Authority (2013), which established limits on reasonable accommodations where an emotional support ball python was concerned.