The Wisconsin Fair Housing Law seeks to protect people from unlawful discrimination when it comes to renting or buying housing. Under both state and federal law, it is unlawful to discriminate against a person seeking housing because of that person’s protected characteristics, otherwise known as protected classes. The federal and state protected classes are:
· A person’s race
· A person’s skin color
· A person’s household composition, including the presence of children
· A person’s physical or mental impairment or other disability
· A person’s sex
· The county of one’s birth or the nationality of one’s ancestors
· A person’s religious beliefs or denominational affiliation
· A person’s marital status
· A person’s legal means of income, including subsidized forms (Social Security, Food Stamps, etc.)
· A person’s sexual orientation
· A person’s age
· A person’s status as a victim of domestic abuse, sexual abuse, or stalking
City and county fair housing ordinances may list additional protected classes such as citizen status, physical appearance, political beliefs, student status, homelessness, etc.
As far as criminal history goes, the U.S. Department of Housing and Urban Development (the HUD) released some guidance on that a few years ago. The HUD was concerned about a racially disproportionate impact if a landlord could outright reject anyone for having a criminal conviction, so they gave some guidance as to what policies landlords could legally have relating to criminal history:
The policy can't:
· Deny all tenants with all kinds of criminal convictions.
· Deny tenants who have only been arrested, not convicted.
· Make any decisions to deny based on criminal history or make exceptions to criminal history
denials based on race, or other protected classes. (That's illegal). For example, looking at the
criminal history of only Hispanic applicants would be illegal. Or, allowing exceptions to a criminal
history policy, but only to White applicants, would be illegal.
The policy should:
· Take into account how long ago the conviction was.
· Distinguish between how severe past crimes were, and what kinds of crimes they were.
· Have some kind of evidence-based justification for existing. Why does the landlord need the policy?
What evidence contributed to establishing that need?
The policy is allowed to:
· Look at individual circumstances for each applicant, if the landlord wants to give someone an
exception to the policy (which would otherwise deny them). Note: exceptions can't be based on an
applicant's membership in a protected class.
· Deny potential tenants if they were convicted of the manufacture or distribution of drugs.
· Check other qualifications (i.e., credit scores, housing history) before addressing the criminal side
Unlawful discrimination can take on many forms, but there are several examples that are more common than others. For instance, it is unlawful for a housing provider to “steer” you to another property rather than give you information about the property they rent because they do not want to rent to you due to a protected characteristic of yours, such as your race or the fact that you wear a hijab. Fair housing laws also prohibit discrimination against families because they have children who may cause noise or wear and tear to the property. Some providers restrict families with children to certain floors or deny housing altogether in order to appease residents who would rather not live near children. Additionally, while “no pet” policies may be lawful, prohibitions on assistance animals are not.
While it is important to know what unlawful discrimination looks like, it is equally important to be aware of what lawful discrimination looks like, too. There are certain circumstances in which a person’s protected characteristics may be considered and factor into a decision not to rent or sell to someone. For example, it might not be unlawful for a housing provider to deny a prospective renter based on age if the housing is intended and operated for older persons. Additionally, while nearly all housing is covered under the law, a person who is seeking a roommate to share a dwelling is not bound by the Fair Housing laws and may discriminate based on a protected class.
A person who can prove that they were a victim of unlawful discrimination can seek various legal remedies in court, including out of pocket losses, attorney fees, compensatory damages, punitive damages, and injunctive relief. The prospective tenant or homebuyer has the burden of proving that the landlord or realtor’s conduct was discriminatory, and proving discrimination can be complicated. If you believe that you have been a victim of unlawful discrimination, our attorneys at Levine Eisberner LLC may be able to help. Call us now for a free consultation.