Housing Discrimination Against Domestic and Sexual Violence Survivors

Domestic and sexual violence survivors have always faced the possibility of eviction from their homes due to the crimes of their perpetrators. Illinois has protections for such survivors. The Sargent Shriver National Center on Poverty Law drafted and advocated (1) a 2010 amendment to the Forcible Entry and Detainer Act, which bars eviction of survivors solely due to domestic or sexual violence, and (2) the Safe Homes Act, which allows survivors to change their locks or be released from their leases when their safety is at risk (see Safe Homes Act). Protection is also provided for survivors with an order of protection under the Illinois Human Rights Act. Now the federal government has taken a more explicit stand on this matter. The U.S. Department of Housing and Urban Development (HUD) recently issued guidance affirming, under the Fair Housing Act and the housing provisions of the Violence Against Women Act (VAWA), the illegality of evicting survivors of domestic violence from their homes for the crimes of their abusers. Referring only to domestic violence, the guidance is nonetheless a step forward in HUD’s acknowledgment of the difficulties that survivors experience in their housing.

HUD’s new guidance issued to its Office of Fair Housing and Equal Opportunity, which is responsible for enforcing fair housing rights, recognizes that the Fair Housing Act may be applied to prevent evictions or compensate survivors who are illegally evicted. The Act prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. The Act covers private housing, federally subsidized housing, and state and local government housing. VAWA’s housing provisions cover federal public and subsidized properties.

Because survivors of domestic violence are disproportionately female, evictions due to acts of domestic violence often are the basis for a Fair Housing Act claim (see Callie Marie Rennison, Office of Justice Programs, U.S. Department of Justice, Intimate Partner Violence, 1993–2001, Bureau of Justice Statistics Crime Data Brief (Feb. 2003), http://bjs.ojp.usdoj.gov/content/pub/pdf/ipv01.pdf). Advocates who consider such claims under the Fair Housing Act can have a variety of tools. Landlord practices may be challenged with direct evidence of discrimination, such as statements made by the landlord. Such practices may also be challenged under the theories of “unequal treatment” and “disparate impact.” Policies that are enforced unequally against protected categories, such as applying “one-strike” evictions (evictions for a single instance of criminal activity in the household) only to survivors of domestic violence, may qualify as unequal treatment. Even “neutral” policies that are not obviously discriminatory but have the effect of unequal impact on protected people (such as the zero-tolerance crime policies’ effect on survivors and minorities) are also prohibited under the Fair Housing Act.

The guidance acknowledges what the numerous cases brought over the last ten years have been alleging: adverse treatment against domestic violence survivors can constitute sex discrimination in violation of the Fair Housing Act. For example, in Warren v. Ypsilanti Housing Authority the housing authority attempted to evict a woman and her son after an ex-boyfriend broke into her home and physically abused her. She sued, and the housing authority agreed to cease evictions of survivors under its one-strike policy and paid her damages. In Alvera v. CBM Group a survivor successfully challenged her threatened eviction after she had given to the management company a copy of her restraining order. The management company agreed, as part of the settlement, not to “evict, or otherwise discriminate against tenants because they have been victims of violence, including domestic violence,” and paid her damages. And in Cleaves-Milan v. AIMCO Elm Creek the plaintiff challenged the management company’s “zero tolerance for violence” policy, which led to her eviction after her abuser tried to kill her and himself in their apartment.

The HUD guidance provides important tools for fair housing advocates, and it signals the Office of Fair Housing and Equal Opportunity’s understanding that domestic violence victims living in rental housing frequently encounter discrimination and other problems leading to their homelessness. HUD also has been taking active steps to ensure that its assisted housing programs work for survivors—a course of action that advocates have sought for some time. For example, in October 2010 HUD issued a Final Rule on the VAWA regulations clarifying, among other matters, how survivors can document their abuse; improving confidentiality standards; and affirming that survivors should not lose assistance in the event of a family breakup.

The new guidance does not deal with every issue raised by advocates. One shortcoming is that the guidance does not mention or otherwise make clear that cases initiated by survivors of sexual violence should be handled in the same way. Sexual violence is similarly suffered disproportionately by women, and evictions based on sexual violence cases are also likely illegal under the Fair Housing Act, but the guidance fails to cover this area.

For more information, contact Wendy Pollack, director of the Women’s Law and Policy Project, Sargent Shriver National Center on Poverty Law, wendypollack@povertylaw.org. Thanks to Eli Wade-Scott, Housing and Economic Opportunity VISTA, for this article.

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