Title 42 U.S.C. section 1982, first enacted by Congress as part of the Reconstruction legislation following the Civil War, and Title VIII of the federal 1986 Fair Housing Act, both prohibit public and private housing discrimination. Section 1982 provides that, “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property. Discrimination based on race, ancestry or ethnicity is prohibited. Title VIII protects all persons from discrimination based not only on race but also on religion, national origin, sex, handicap, and familial status.
Section 1982 is only violated by “purposeful” or intentional discrimination. Title VIII is violated by intentional discrimination but some courts find that a violation can occur based on disparate impact. Thus, zoning laws that are neutral on their face as to race may violate Title VIII if they are shown to have an exclusionary racial effect and are not justified by some legitimate interest.
The text of section 1982 does not include any exemptions or exceptions. Title VIII exempts single family homeowners who do not rely on anyone else to sell or rent their homes, and multi-family homeowners are exempt provided no more than four families live in the dwelling and one of them is the owner. Religious organizations can limit the sale or rental of property to persons of the same religion and private clubs can limit the rental of club property to its members. Finally, there is an exemption from the prohibition of family status discrimination in special housing for older persons.
While section 1982 is only enforced in the courts, Title VIII can be enforced either directly in court or by administrative hearings before the Department of Housing and Urban Development (HUD).
Remedies for section 1982 and Title VIII violations brought in court actions include actual and punitive damages, injunctive relief and attorney’s fees and costs. Damages in administrative hearings before HUD are capped at various levels, depending on the number of prior violations by the defendant.