7-214 California Real Estate Law & Practice § 214.41
§ 214.41. The State Fair Housing Law
[1] Unlawful Practices
The state fair housing law makes all of the following practices illegal: 1
For the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, 2 gender identity, gender expression, 3 sexual orientation, marital status, national origin, ancestry, familial status, 4 source of income, 5 disability, 6 or genetic information 7 of that person. 8
For the owner of any housing accommodation to make or to cause to be made any written or oral inquiry concerning the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, disability, or genetic information of any person seeking to purchase, rent, or lease any housing accommodation. 9 It does not constitute discrimination based on source of income to make a written or oral inquiry concerning the level or source of income. 10
For any person to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement with respect to the sale or rental of a housing accommodation that indicates any preference, limitation, or discrimination based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information or an intention to make that preference, limitation, or discrimination. 11
For any person subject to the Unruh Civil Rights Act as it applies to housing accommodations 12 to discriminate against any person on the basis of sex, gender, gender identity, gender expression, sexual orientation, color, race, religion, ancestry, national origin, familial status, marital status, disability, genetic information, source of income, or on any other basis prohibited by the Act. 13
For any person, bank, mortgage company or other financial institution that provides financial assistance for the purchase, organization, or construction of any housing accommodation to discriminate against any person or group of persons because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information in the terms, conditions, or privileges relating to the obtaining or use of that financial assistance. 14
For any owner of housing accommodations to harass, evict, or otherwise discriminate against any person in the sale or rental of housing accommodations when the owner's dominant purpose is retaliation against a person who has opposed practices unlawful under this section, informed law enforcement agencies of practices believed unlawful under this section, has testified or assisted in any proceeding under this part, or has aided or encouraged a person to exercise or enjoy the rights secured by this part. However, this provision is not intended to cause or permit the delay of an unlawful detainer action. 15
For any person to aid, abet, incite, compel, or coerce the doing of any of the acts or practices declared unlawful in Gov. Code § 12955, or to attempt to do so. 16
For any person, for profit, to induce another to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, ancestry, disability, genetic information, source of income, familial status, or national origin. 17
For any person or other organization or entity whose business involves real estate related transactions to discriminate against any person in making available a transaction, or in the terms and conditions of a transaction, because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, source of income, familial status, disability, or genetic information. 18
To deny a person access to, or membership or participation in, a multiple listing service, real estate brokerage organization, or other service because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, ancestry, disability, genetic information, familial status, source of income, or national origin. 19
Otherwise to make unavailable or deny a dwelling based on discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, source of income, disability, genetic information, or national origin. 20
To discriminate through public or private land use practices, decisions, and authorizations because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, genetic information, national origin, source of income, or ancestry. 21 Discrimination includes, but is not limited to, restrictive covenants, 22 zoning laws, denials of use permits, and other actions authorized under the Planning and Zoning Law 23 that make housing opportunities unavailable. 24
To use a financial or income standard in the rental of housing that fails to account for the aggregate income of persons residing together or proposing to reside together on the same basis as the aggregate income of married persons residing together or proposing to reside together. 25
When there is a government rent subsidy, to use a financial or income standard in assessing eligibility for the rental of housing that is not based on the portion of the rent to be paid by the tenant. 26
[2] Proof of Violation
Proof of an intentional violation of these provisions includes, but is not limited to, an act or failure to act that otherwise is covered that demonstrates an intent to discriminate in any manner. A person intends to discriminate if one of the prohibited bases is a motivating factor in committing a discriminatory housing practice even though other factors also may have motivated the practice. An intent to discriminate may be established by direct or circumstantial evidence. 27
Proof of a violation causing a discriminatory effect is shown if an act or failure to act that otherwise is covered has the effect, regardless of intent, of unlawfully discriminating on one of the prohibited bases. A business establishment 28 whose action or inaction has an unintended discriminatory effect is not considered to have committed an unlawful housing practice if the business establishment can establish that the action or inaction is necessary to the operation of the business and effectively carries out the significant business need it is alleged to serve. In cases that do not involve businessestablishments, a person whose action or inaction has an unintended discriminatory effect is not considered to have committed an unlawful housing practice if the person can establish that the action or inaction is necessary to achieve an important purpose sufficiently compelling to override the discriminatory effect and effectively carries out the purpose to is alleged to serve. To determine whether a violation of these provisions has occurred, one must consider whether feasible alternatives exist that would equally well or better accomplish the purposes with less discriminatory effect. 29
[3] Meaning of "Discrimination"
As used above, the term "discrimination" includes the following: 30
Refusing to sell, rent, or lease housing accommodations;
Refusing to negotiate for the sale, rental, or lease of housing accommodations;
Representing that a housing accommodation is not available for inspection, sale, or rental when the accommodation is in fact so available;
Any other denial or withholding of housing accommodations;
Providing inferior terms, conditions, privileges, facilities, or services in connection with housing accommodations;
Harrassment in connection with housing accomodations;
Cancelling or terminating a sale or rental agreement;
Providing segregated or separated housing accommodations;
Refusing to permit a disabled person, at his or her own expense, to make reasonable modifications of existing premises, except that, in the case of a rental, the landlord may, when it is reasonable to do so, condition permission for a modification on the renter's agreeing to restore the interior of the premises to the condition that existed before the modification (other than for reasonable wear and tear); and
Refusing to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.
"Discrimination" does not include refusal to rent or lease a portion of an owner-occupied single-family house to a person as a roomer or boarder living within the household, provided that no more than one roomer or boarder is to live within the household and the owner complies with the prohibition in Gov. Code § 12955 against discriminatory notices, statements, and advertisements. 31 When the sharing of living areas in a single dwelling unit is involved, "discrimination" does not include the use of words stating or tending to imply that the housing being advertised is available only to persons of one sex. 32 Discrimination on the basis of marital status includes discrimination against cohabiting unmarried persons. 33 The California Supreme Court has held that the state's prohibition against discrimination based on marital status 34 extends to unmarried couples. Accordingly, a landlord who refused to rent to unmarried couples, on religious grounds, violated the state's housing antidiscrimination laws. 35 The Court rejected the landlord's claim that her free-exercise of religion rights under the U.S. Constitution, the Religious Freedom Restoration Act of 1993, 36 and Article 1, Section 4 of the California Constitution would be violated by renting to unmarried couples. 37
The terms "race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information" include a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics. 38
[4] "Housing Accommodation" and "Owner" Defined
"Housing accommodation" means any building, structure, or portion of a building or structure, that is occupied as, or intended for occupancy as, a residence by one or more families and any vacant land that is offered for sale or lease for the construction thereon of any building, structure, or portion thereof intended to be so occupied. 39 "Owner" includes the lessee, sublessee, assignee,managing agent, real estate broker or salesman, or any person having any legal or equitable right of ownership or possession or the right to rent or lease housing accommodations. The term includes the state and any of its political subdivisions and any agency thereof. 40
[5] Special Rules for Religious Organizations
The fair housing law does not prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental, or occupancy of dwellings that it owns or operates for other than a commercial purpose to persons of the same religion or from giving preference to those persons, unless membership in that religion is restricted on account of race, color, or national origin. 41
[6] Senior Citizen Housing
The prohibition against discrimination on the basis of familial status does not apply to housing for older persons, which is: 42
Housing provided under any state or federal program that the Secretary of Housing and Urban Development determines is specifically designed and operated to assist elderly persons, as defined in the state or federal program;
Housing that meets state standards for senior housing, 43 except to the extent those standards violate the prohibition of familial status discrimination in the federal Fair Housing Amendments Act of 1988 and its implementing regulations; 44 or
Mobilehome parks that meet the standards for "housing for older persons" as defined by the federal Fair Housing Amendments Act of 1988 and its implementing regulations. 45
The owner has the burden of proving that the housing qualifies as housing for older persons. 46
[7] Construction with Other Laws
The law may not be construed to afford fewer rights or remedies than those conferred by the federal Fair Housing Amendments Act of 1988 47 and its implementing regulations or prior state law. 48 Any state law that purports to require or permit any action that would be an unlawful practice under the Act is to that extent invalid. The law may be construed to give greater rights and remedies to an aggrieved person than those afforded by federal law. 49
[8] Enforcement of Violations
[a] Procedures
The Department of Fair Employment and Housing is responsible for enforcing the provisions of the fair housing law. 50 Any party seeking relief must file a verified complaint with the Department within one year after the alleged violation. 51
The Department is empowered to conduct an investigation of the allegations contained in a verified complaint. 52 Investigation may include compelling testimony and production of documents. 53 When an individual or entity fails to comply with the Department's request for documents, the Department may file a petition with the superior court for an order compelling compliance. 54 To be successful in such a petition, the Department must show that the subpoena was issued or carried out in accordance with the provisions of the Act, and that the information sought was identified with sufficient particularity to allow a response. In addition, the Department must show that the information sought was reasonably relevant to the inquiry or investigation and that the party from whom discovery was sought had failed to comply. 55
In Department of Fair Employment and Housing v. Keller, 56 the court held that an apartment manager and owner could becompelled to comply with a subpoena issued by the Department seeking information with respect to current and former rental applicants and tenants at a rental property. 57 The manager and owner refused to comply with the subpoena on the ground disclosure of the information would have violated the privacy rights of third parties, such as former and current tenants and rental applicants. The court held that the state's compelling interest in prohibiting discrimination in housing outweighed the privacy interests of applicants who had been denied housing or who were accepted as renters. 58
If a violation cannot be eliminated by conference, conciliation, or persuasion, a written accusation may be issued and a hearing will be held on the accusation. 59 Any party to the proceeding may elect to have the claims asserted in the accusation adjudicated in a civil action. 60 These civil actions are more fully discussed in Chapter 63.
If it is determined that probable cause exists for believing that the allegations of the complaint are true and constitute a violation, the Department or at its election the Attorney General, may bring an action in superior court to enjoin the landlord from taking further action with respect to the rental or lease of the property until the Department has completed its investigation and made a determination. However, a temporary restraining order may not stand for more than 20 days. 61
[b] Remedial Orders
If the landlord is found to have violated the fair housing law, the Fair Employment and Housing Commission must issue an order requiring the respondent-landlord to cease and desist from the practice and to take such actions, as in the judgment of the Commission, will effectuate the purpose of the law, including but not limited to, any of the following:
Renting the housing accommodation, if it is still available, or renting a like housing accommodation, if one is available, or providing financial assistance, terms, conditions, or privileges previously unlawfully denied. 62
Affirmative or prospective relief, including injunctive or other equitable relief. 63
Paying the complainant (1) a civil penalty not to exceed $16,000, or (2) if, in a separate accusation, the landlord was adjudged intentionally to have committed a prior violation within five years, a civil penalty of up to $37,500, or (3) if the landlord, in separate accusations, was found to have committed two or more prior violations within seven years, a civil penalty of up to $65,000. 64
Paying actual damages to the complainant. 65
The actual damages awarded may include quantifiable sums that one private party owes to another party who claims the sum was obtained in violation of the law or regulation. They include out-of-pocket expenditures incurred or economic harm, which are quantifiable amounts of money. An award of damages may include general compensatory damages, such as damages for emotional distress. 66 If several persons are aggrieved in a single transaction, each may be awarded damages if he or she has filed a complaint and has suffered some injury. 67
The Commission may award the prevailing party, other than the state, reasonable attorneys' fees and costs against any party other than the state, including expert witness fees. 68
[c] Appeal of Commission's Order
Any party aggrieved by the Commission's final order may obtain review in accordance with Code Civ. Proc. § 1094.5. A writ petition seeking review of a decision of the Fair Employment and Housing Commission is subject to the 30-day statute of limitations set forth in the Administrative Procedure Act. 69 The superior court may grant temporary relief, affirm, modify, or set aside the order, or remand for further proceedings. Any party to the proceedings before the Commission or aggrieved person may intervene as a matter of right in the superior court proceeding. 70
When the reviewing court denies a petition for writ of mandate seeking review of a Commission order or decision, it must enter judgment denying the petition and enforcing the Commission's order or decision. 71
[9] Effect of Violation on Good Faith Purchaser
It should be noted that the law will not affect the interest or title of a person who, before the granting of relief, purchases, leases, or takes an encumbrance on a housing accommodation in good faith and without either knowledge or actual notice of the filing of a complaint with the Department or of a civil action. 72 Further, although not explicit in the law, it may be inferred that an owner who is responsible for a violation of any provision may not shed that responsibility by transferring the interest to such a good faith purchaser. Nothing in the law may be construed as prohibiting selection of tenants on the basis of factors other than race, color, religion, national origin, ancestry, familial status, disability, or other basis prohibited by the Unruh Act. 73
[10] Preemption of Local Regulations
The fair housing law preempts the field of regulation of discrimination in housing. This law precludes the establishment by local governments of local agencies possessing the authority to formally investigate complaints or accusations involving discriminatory housing practices through a formal hearing process with a view toward adoption of formal orders capable of judicial review and enforcement. City and county governments are, however, authorized to establish and create local agencies with purely advisory functions, frequently known as human rights commissions. 74
