Discrimination on the basis of sex was added as a protected class to our federal Fair Housing Act (FHA) in 1974 and is settled law. But, is discrimination against lesbian, gay, bisexual, and/or transgender (LGBT) individuals covered under the FHA? Should it be? While LGBT persons are not specifically identified in the text of the statute, that does not end the inquiry. HUD promulgated regulations which provide that discrimination against LGBT persons in HUD housing (or in home mortgages insured by the FHA) is a violation of the law. Additionally, the regulation similarly prohibits inquiries about sexual orientation and/or gender identity. And remember, even though the phrase “disparate impact” was not specifically written in the law, by a vote of 5-4, the U.S. Supreme Court concluded that disparate impact claims are indeed cognizable under the FHA.
And even if you could convince a judge that LGBT persons are not covered under the federal statute, remember to always check your state, city, or county codes as many local laws include protections for additional classes of individuals.
So, should management discriminate against LGBT individuals as they are not protected under a strict reading of the law? No. In today’s climate, that would be characterized as unnecessarily hazardous activity. HUD and various fair housing tester entities are looking to bring the right case. You (and/or your company) could be that test case. And then you would really need to speak with a lawyer like me.
Just A Thought.