Chapter 3 - Housing
The Fair Employment and Housing Act and The Unruh Civil Rights Act
The California Legislature has declared that discrimination in housing is against the public policy of the State of California. Moreover, the Legislature has recognized that your right to seek, obtain, and hold housing without discrimination on any of the bases specified in the Fair Employment and Housing Act or on any other basis prohibited by the Unruh Civil Rights Act is a civil right.
The Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., specifically prohibits housing discrimination on the basis of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, disability, or source of income. (49) The Unruh Civil Rights Act, Civil Code section 51 (hereafter the Unruh Act or the Act) prohibits discrimination in "all business establishments of every kind whatsoever." (50) This provision has been interpreted to include businesses and persons engaged in the sale or rental of housing accommodations. (51)
While the Act specifically prohibits only discrimination on the basis of race, color, religion, sex, national origin, ancestry, or disability, its language, unlike the FEHA's, has been judicially and statutorily construed to apply to arbitrary discrimination based on personal traits, beliefs, or characteristics similar to those specifically listed. (52) The Act, for example, has been held to prohibit discrimination against families with children and against persons based upon their sexual orientation or their age. (53) Accordingly, the Act does not apply only to those bases which are specifically listed, but may also apply to other, unlisted but similar bases, as well.
In addition, the Unruh Act, like the FEHA, prohibits discrimination against persons who are perceived to be a member of a protected class or who associate with a member of, or with a person perceived to be a member of, a protected class. (54) The FEHA also prohibits harassment of persons applying for or occupying housing accommodations on any of the bases specified in the Act. (55)
The FEHA and the Unruh Civil Rights Act can be enforced against any owner, lessor, sublessor, assignor, managing agent, real estate broker, salesperson, or any person having any legal or equitable right of ownership or possession or the right to rent a housing accommodation. (56)
The provisions of the FEHA are generally applicable to any real property that is occupied or intended to be occupied as a home, residence, or sleeping place by one or more families. (57) Only two categories of housing are expressly exempted. First, the FEHA does not apply to renting a portion of a single-family, owner-occupied house to one person. (58) Second, religious organizations which own or operate housing accommodations for non-commercial purposes, either directly or through a related non-profit institution or organization, may give a preference to persons of the same religion in the sale, rental, or occupancy of such accommodations. (59)
The Unruh Act covers any form of housing which can be termed a "business establishment." This term has been liberally construed by the courts to include virtually every type of housing accommodation. For example, the Act has been held to apply to operators of motels and hotels; real estate brokers and agents and others engaged in the sale or rental of real property; owners of triplexes, duplexes, non-owner occupied single-family dwellings, and publicly-assisted housing projects; operators of mobile home parks; and condominium homeowners' associations.
The following is a partial listing of housing practices prohibited by the FEHA and the Unruh Act. (60) It is unlawful:
- to make any inquiry concerning the race, color, religion, sex, national origin, ancestry, or other protected characteristic of the person seeking to rent, purchase, or lease any housing accommodation;
- to place an advertisement regarding the rental or sale of any housing accommodation which indicates any preference or limitation based upon race, color, religion, sex, national origin, ancestry, or any other characteristic protected by the FEHA or the Unruh Act;
- to discriminate against any loan applicant for a loan to purchase or construct housing on a prohibited basis;
- to harass, evict, or otherwise discriminate against any person who has filed a complaint with the DFEH or who has testified or assisted in any action brought pursuant to the FEHA;
- to aid, abet, incite, compel, or coerce the doing of any of the foregoing illegal practices;
- to refuse to sell, rent, or lease a housing accommodation on any prohibited basis;
- to refuse to negotiate for the sale, rental, or lease of a housing accommodation on any prohibited basis;
- to misrepresent the availability of a housing accommodation because the prospective buyer or lessee is a member of a class protected by either the FEHA or Unruh Act;
- to provide inferior terms, conditions, privileges, facilities, or services in connection with the sale or lease of a housing accommodation because the buyer or lessee is a member of any class protected by the Unruh Act or the FEHA;
- to cancel or terminate a sale or rental agreement because a person is a member of a class protected by either the FEHA or Unruh Act;
- to provide segregated housing accommodations.
- to harass someone in connection with housing accommodations.
Procedures to Follow and Remedies Available
You can enforce your rights under the FEHA or Unruh Act either by filing a claim with the DFEH (61) or by filing a private lawsuit. By filing a complaint with the DFEH, you will be initiating an administrative process in essentially the same way you would when filing a complaint with that department for employment discrimination. Whether your housing claim is based upon the FEHA or the Unruh Act, you must file your complaint with the DFEH within one year after the alleged discriminatory act. (62) Therefore, you should file your complaint immediately.
Whether your claim is based upon the Unruh Act or the FEHA, the DFEH will conduct an investigation to determine its validity and attempt to settle the matter. If it is unable to reach a settlement, and there is reasonable cause to believe that a violation has occurred or is about to occur, the DFEH will issue an accusation requiring the person or entity who violated your rights to answer your charges at an administrative hearing or, if either you or the party charged so elect, at a civil trial. (63)
In order to bring your own FEHA or Unruh Act lawsuit, however, you do not have to file a complaint with the DFEH at all. (64) You should note that if you do file a private action, the DFEH will not act on any complaint you may have filed.
Remedies available from the Fair Employment and Housing Commission (FEHC) in administrative actions for housing discrimination include: orders requiring the sale or rental of the housing accommodation if it is still available; payment of actual damages; and payment of a civil penalty of up to $50,000. (65) Remedies available in private actions brought to enforce your rights depend upon whether your claim is brought pursuant to the Unruh Act or the FEHA. Remedies available in private Unruh Act suits include actual damages, a penalty of up to three times the amount of actual damages, injunctive relief, and attorney's fees. (66) Remedies available in private FEHA actions, or in a civil trial elected in lieu of an administrative hearing before the FEHC, include actual, compensatory, and punitive damages, injunctive relief, and attorney's fees if you are represented by private counsel rather than by the DFEH. (67)
Finally, it should be noted that under certain circumstances, the Attorney General, or your local district or city attorney, may bring actions to correct housing violations under the FEHA and/or the Unruh Civil Rights Act. While FEHA and Unruh Act housing violations ordinarily should be reported to the DFEH, if there is reasonable cause to believe that a person or group is engaged in a pattern or practice of violating the housing rights protected by the Unruh Act, you should report such activity to the Attorney General's Public Inquiry Unit or to your local district or city attorney. You can write the Public Inquiry Unit at the number and address provided at the beginning of this pamphlet.
To file a housing complaint with the DFEH, contact the following:
DFEH website: www.dfeh.ca.gov
DFEH Communication Center:
(800) 884-1684 (Within California)
(916) 227-0551 (Outside California)
(800) 700-2320 TTY
All housing complaints are filed in the DFEH Oakland office:
DFEH Oakland District Office:
Department of Fair Employment and Housing
Oakland Housing District Office
1515 Clay Street, Suite 701
Oakland, CA 94612-5212
Toll-free: (800) 233-3212
Miscellaneous State Statutes Prohibiting Discrimination in Housing
These additional state statutory references also concern unlawful housing discrimination.
- Civil Code sections 51.2 through 51.4, and 51.10through 51.12 recognize the need for specially designed accessible housing for senior citizens, and establish age limitations and other qualifications for permissible senior citizen housing developments.
- Civil Code section 53 prohibits discriminatory provisions in written instruments which attempt to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of real property to any person on the basis of sex, race, color, religion, ancestry, national origin, or disability or which attempt to limit the use or occupation of real property by any person on such bases.
- Civil Code section 51.9 prohibits, among other things, the sexual harassment of a tenant by a landlord or property manager.
- Civil Code section 54.1 subdivisions (a)(6)(A), (B) and (C)(i) declare that blind persons, other visually impaired persons, deaf persons, and other disabled persons are entitled to full and equal access to all housing accommodations offered for rent, lease, or compensation, for both themselves and any guide, signal, or service dog whose services they use.
- Civil Code sections 782 and 782.5 void discriminatory provisions in deeds and other written instruments relating to title to real property which purport to restrict the right of any person to sell, buy, lease, rent, use, or occupy such property on the basis of race, color, nationality, or ethnicity.
- Government Code section 12956.1 provides that a county recorder, title insurance company, escrow company, real estate broker, real estate agent, or association that provides a copy of a real estate document to any person shall place a cover page or stamp on the first page of the document stating, in specified language, in at least 14-point boldface type, that any unlawful restrictive covenant contained in the document is void and may be removed, and that lawful restrictions on age of occupants in senior housing shall not be construed as restrictions based on familial status.
- Government Code section 12956.1, subdivision (c), provides that any person who holds an ownership interest in property that he or she believes is the subject of a restrictive covenant may file an application with the DFEH requesting a determination of whether the restrictive covenant violates the fair housing laws and is void. The applicant may strike the void restrictive covenant identified by the department.
Health and Safety Code section 33050 is a legislative declaration of policy against discrimination in the undertaking of community redevelopment projects based on race, color, religion, sex, marital status, national origin, or ancestry.
- Health and Safety Code section 33769 requires that any residence constructed with funds obtained through, or with the assistance of, a redevelopment agency be made available without regard to race, color, religion, national origin, or ancestry.
- Health and Safety Code section 37923 requires that residences acquired, constructed, or rehabilitated with community development funds be open to all without discrimination on the basis of race, color, religion, national origin, or ancestry.
The Federal Fair Housing Act and 42 U.S.C. § 1982
Title VIII of the Civil Rights Act of 1968, the Federal Fair Housing Act (FFHA) (42 U.S.C. § 3601 et seq.), also reaffirms and protects your rights to fair housing. The FFHA prohibits discrimination in the selling or rental of housing accommodations on the basis of race, color, religion, sex, familial status (families with children), handicap, or national origin. (68) The FFHA applies to most dwellings, private or public, except for owner-occupied dwellings with four units or less. For example, the FFHA is applicable to all dwellings owned and operated by the federal government and dwellings financed in whole or in part through loans or grants made by the federal government or secured by the credit of the federal government. (69) Religious institutions operating non-commercial housing may limit the sale or rental of such housing to persons of the same religion, however, and housing specifically designed for older persons is also permitted. (70)
Additionally, the FFHA prohibits discrimination by financial institutions in the making of commercial real estate loans, and prohibits anyone from discriminating in the provision of real estate brokerage or appraisal services. (71)
The authority and responsibility for administering the provisions of the FFHA lies with the United States Secretary of Housing and Urban Development. For more information concerning your rights and remedies under the FFHA, you should contact your local office of the Department of Housing and Urban Development (HUD). You should note that if you believe that you have a claim under the FFHA, you must file a written complaint within one year after the alleged discriminatory act occurred or terminated, if you would like HUD's assistance in resolving the claim. HUD will investigate your complaint, attempt to resolve it by conciliation, and, if necessary, proceed to have the matter heard either in court or in an administrative hearing. After an administrative hearing, actual damages and injunctive relief may be awarded as well as a civil penalty of up to $50,000. (72)
Alternatively, you may also file an action directly in court, without first filing with HUD. Any such court action must be filed within two years after the alleged discriminatory act. If you prevail, you may recover actual and punitive damages, injunctive relief, and reasonable attorney's fees. (73)
In addition to the FFHA, 42 U.S.C. § 1982 also prohibits discrimination in the area of housing. Section 1982 states: "All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." Thus, section 1982 bars all racial discrimination, private as well as public, in the sale or rental of property. (74)
Although section 1982 and the FFHA share the same goals, the two federal remedies do differ in a few significant respects. First, section 1982 only prohibits discrimination based upon color or race, whereas the FFHA applies more broadly. Second, section 1982 is enforceable only through private action, while the FFHA establishes an administrative scheme. Lastly, while section 1982 is generally limited to discrimination in the sale or rental of property, the FFHA extends to other related areas, such as discrimination in the provision of brokerage services. A section 1982 action, like a 42 U.S.C. § 1981 claim, can be brought in either state or federal court, and you do not need to file an FFHA claim before you file a section 1982 court action. (75)
To file a housing discrimination claim with HUD, contact the following:
HUD Website: www.hud.gov/
HUD Toll-Free Number: 1-800-669-9777
HUD California Office:
U.S. Department of Housing and Urban Development
Phillip Burton Federal Building and U.S. Courthouse
450 Golden Gate Avenue
San Francisco, California 94102-3448
TTY (415) 436-6594
- Government Code section 12955. Back to link 49
- Although violations of the Unruh Act are also violations of the FEHA (see Civil Code, § 52, subd. (f), and Gov. Code, §§ 12948, 12955, subd. (d)), for ease of reference the two acts will be described separately. Back to link 50
- Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463. Back to link 51
- Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142. Back to link 52
- See Civil Code section 51.2, subdivision (a), (age); Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721 (families with children); Rolon v. Rulwitzky (1984) 153 Cal.App. 3d 289 (sexual orientation). It should be noted that it is presently unclear whether the Unruh Act prohibits discrimination on the basis of marital status. (See Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143, 1160.) Back to link 53
- Government Code section 12955, subdivision (m); Civil Code section 51; In re Cox (1970) 3 Cal.3d 205. Back to link 54
- Government Code section 12955, subdivision (a). Back to link 55
- Government Code section 12927, subdivision (e). Back to link 56
- Government Code section 12927, subdivision (d). Back to link 57
- Government Code section 12927, subdivision (c)(2)(A). Back to link 58
- Government Code section 12955.4. Back to link 59
- See, for example, Government Code sections 12955, 12927 subd. (c)(1). Back to link 60
- DFEH offices are listed in the preceding chapter on employment discrimination. Back to link 61
- Government Code section 12980, subdivision (b). Back to link 62
- Government Code sections 12981, subdivision (a), 12989, subdivision (a). Back to link 63
- Government Code section 12989.1. Back to link 64
- Government Code section 12987. The Supreme Court is reviewing the Commission's ability to award emotional distress damages in housing discrimination cases. (See Konig v. Fair Employment and Housing Commission 79 Cal.App.4th 10 (review granted on specified issues on June 28, 2000, S087843, opinion ordered partially published pending review). Back to link 65
- Civil Code section 52. Back to link 66
- Government Code section 12989.2. Back to link 67
- 42 U.S.C. § 3604. Back to link 68
- 42 U.S.C. § 3603. Back to link 69
- 42 U.S.C. § 3607. Back to link 70
- 42 U.S.C. § 3605. Back to link 71
- 42 U.S.C. §§ 3610, 3612. Back to link 72
- 42 U.S.C. § 3613. Back to link 73
- Jones v. Alfred H. Mayer Co. (1968) 392 U.S. 409. Back to link 74
- Id. Back to link 75