Leasing Agents And The Fair Housing Act

Laura Ng

Associate Editor

Loyola University Chicago School of Law, JD 2021 

At first glance, the Fair Housing Act is fairly straightforward: one must not discriminate on the basis of race, color, national origin, religion, sex, familial status, or disability. These classes are protected by federal law and applicable universally in the United States of America. In practice, however, the fine line complying with FHA anti-discrimination laws and complying with internal leasing policies – aimed at protecting the company from high-risk renters — can be difficult to discern for apartment leasing agents.

Disclosure of sensitive information

A standard apartment application may contain sensitive information that could, potentially, muddy the waters when it comes to the FHA protected classes. For example, apartment applications frequently require applicants to list “other occupants.” If an applicant were to list young children (or an adult partner or relative), “familial status” thus becomes disclosed on the process. Some single parents have reported blatant discrimination when it comes to familial status, with landlords directly telling them that they will not rent to a single parent.

Discriminative use of sensitive information

Studies have shown that parents with children are often discriminated against with less obvious forms of limitations imposed upon them, such as “maximum limit: 1 person” conditions, even with fairly large units. This discrimination appears to disproportionately affect minority applicants with children. Such discrimination, of course, is illegal and in violation of the Fair Housing Act. Yet, it is important to most landlords and apartment companies to know how many people – and who – is living in a unit for safety reasons. In many jurisdictions, the landlord may also be required to adhere to building codes with maximum occupancy limits. Thus, leasing agent must balance this potentially sensitive information in a non-discriminatory manner.

Handling sensitive information while complying with the FHA

There are a few tried-and-true tricks to handling sensitive information while complying with the FHA, depending on the leasing agent’s individual personality and/or experience handling such matters. The first, of course, is to simply not discuss the potentially sensitive information. If the applicant brings up his or her children, for example, one can simply answer with, “Great!” or “Oh, interesting!” and move on to another topic. If the applicant brings up disability, however, it may be prudent to point out that the building is handicap-accessible, or other forms of accommodations that the leasing company or building may offer.

Questions and statements to avoid

It is critical for any apartment leasing agent to avoid certain statements that could be seen as discriminatory. For example, comments such as, “This is a very nice neighborhood” or “This is a very safe neighborhood” may seem innocent on its face, but they could potentially be construed as having racial undertones if the property is located in a highly segregated city. It is also important not to ask “leading” questions that could be construed as attempting to discern an applicant’s familial status. For example, one should never ask, “Do you have a husband/wife?” or “Are you from a certain country?” Sometimes real estate agents may feel that such questions are polite conversation, but in order to comply with FHA regulations, it is best to steer away from conversations that could lead a prospective tenant to think that discrimination was at play should the application result in a denial.

How to deliver bad news

There are times when a leasing agent may have to deliver bad news, like a denial of the rental, to the occupants. Obviously, such news will most likely not be received with welcome arms. However, the situation may be even more precarious should the applicant have disclosed potentially sensitive information beforehand. For example, what should the rental agent do if the applicant had disclosed that she had a career-ending disability, and thus, has limited income and bad credit?

Alternatives ought to be explored. Perhaps the apartment company or landlord would consider renting to the prospective tenant if he or she were willing to pay several months’ deposit upfront. Perhaps an individual would offer to co-sign for the lease. Either way, it is important to deliver the news with care and to emphasize that the apartment denial was due to a non-discriminatory reason. For example, an agent may want to say, “I’m very sorry, but your credit score check was too low and we have a policy to only rent to people with credit scores over a certain number. Would you by any chance have a co-signer?”Limiting denials to purely numeric or non-discriminatory factors greatly benefits the leasing company.

The Golden Rule

Ultimately, apartment leasing agents should stick to the “Golden Rule”: treat prospective tenants as you would like to be treated.” No one enjoys being discriminated against, or even made to feel as if there was possible discrimination at play. Thus, it is important to treat every applicant with care and respect, regardless of his or her personal circumstances.