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Emerging Issues in Rental Housing Discrimination

Many landlords already know Washington prohibits discrimination on the basis of race, creed, color, national origin, familial status, sex, military status, sexual orientation, disability, or use of a service animal. RCW 49.60.030(1). A lesser known discrimination issue involves a tenant’s participation in subsidized or Section 8 programs.


Approximately 13 states enacted laws related to source of income discrimination. Unlike those states, Washington does not consider participation in a Section 8 program a protected class. However, a few jurisdictions in Washington have enacted local laws providing such protection. Those jurisdictions are: unincorporated King County (KCC 12.20.040), Seattle (SMC 14.08.040), Bellevue (BCC 9.20.045), Redmond (RMC 6.38.020(A)), and Kirkland (KMC 7.24.010). In those cities, and unincorporated King County, a landlord may not discriminate or employ any unfair housing practices on the basis of a tenant’s participation in a Section 8 program. A cautious landlord should keep an eye on developments in federal law and state law. It appears to be the trend for courts and legislatures to be more tenant‐ friendly and prohibit source of income discrimination.


Another emerging issue landlords face is what legal standard may be used when a tenant brings a claim for discrimination. On June 25, 2015, the United States Supreme Court ruled that a plaintiff may bring a claim based on either disparate‐treatment or disparate‐impact. Specifically, the court held in a 5‐4 decision that disparate impact claims are cognizable under the Fair Housing Act (FHA). Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., No. 13‐1371. Simply put, a disparate‐treatment claim requires a showing of a discriminatory intent or motive. A disparate‐impact claim challenges practices or procedures that have a “disproportionately adverse effect” on protected classes and are otherwise unjustified by a legitimate rationale. Ricci v. DeStefano, 557 U.S. 557, 577 (2009).


While the Texas Department of Housing and Community Affairs case did not expand the group of protected classes, it does allow a larger scope of claims into the purview of the FHA. With this decision, a landlord may be held liable for discrimination based on a practice that is not intended to be discriminatory, but, in fact, has a disproportionate effect on a protected class. Essentially, a landlord may be subjected to a lawsuit despite never knowing his or her policy had such adverse effects. The Court attempts to limit its holding by stating that a respondent in a fair housing case may have a defense when the policy is “necessary to achieve a valid interest.” As noted in Justice Alito’s dissent, this raises more questions than it answers. The Court does not identify what constitutes a “valid interest” or what is “necessary.”


In the Texas Department of Housing and Community Affairs case, the plaintiff was required to show that the defendant was responsible for causing segregated housing patterns because of its allocation of tax credits. The Department had a practice of allocating too many tax credits to housing in predominantly black, inner‐city areas and too few in white, suburban neighborhoods. The statistical evidence established the Department’s policy caused the disparate impact of continued segregation in housing. The majority opinion makes it clear that a plaintiff must produce statistical evidence showing a causal connection to the respondent’s policy. With this limitation, the Court aims to “protect defendants from being held liable...for disparities they did not create.” Wards Cove Packing Co. V. Atonio, 490 U.S. 642, 653 (1989). Whether landlords will be protected from such liability remains to be seen in light of the Court’s new ruling.


Landlords and developers should take a closer look at their policies to ensure that they are adequately protected and following legitimate, non‐discriminatory procedures. This article serves as a brief overview regarding rental housing discrimination in Washington. While this may be used as a general guideline, specific questions should always be referred to legal counsel.


If you need assistance with a tenant dispute, an eviction, a lease or other landlord-tenant situation, please call 206.628.6600 today to speak with one of our experienced attorneys.

Important: This information is provided as a courtesy without any claim as to its effectiveness or legality. Use of this information does not in any way create an attorney-client relationship.

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