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Can They Ask That? Spotting Discrimination in Real Estate

Jul 16 2020

“Are you married?” “Are you pregnant?”  Umm … are you allowed to ask me that?

The short answer is: No.

Coming from mortgage lenders, real estate agents, and other professionals in the housing industry, these types of questions, even if they seem well-intentioned, are illegal under the Fair Housing Act.

Passed by Congress in 1968, the Fair Housing Act is a national law that serves to prevent discriminatory practices in housing and homeownership.

The act was created on the principle that every American should have equal opportunity to find a place to live, without experiencing discrimination based on their status as a “protected class,” which is a group of people protected by law.

The protected classes under the Fair Housing Act are:

  • skin color
  • race
  • disability
  • familial status (such as being pregnant or having children)
  • national origin
  • religion

Depending on where you live, you may have additional fair housing rights (such as sexual orientation being a protected class) under state or local laws. Check with a local fair housing center to find out.

To be clear, discrimination is the unequal or unfair treatment of a person based on a personal trait — what they look like or where they’re from, for example. It’s slightly different than prejudice, which refers to someone’s personal opinion of you, as discrimination can prevent your access to necessities, such as a job or housing.

Now that you have some background on where your rights and protections come from, here are three examples of questions real estate professionals legally cannot ask you:

  1. Are you ill or disabled?

If a lender or real estate agent tries to feel you out to see if you’re suffering from any serious health problems or inquires about a possible disability, that’s a violation of your legal protections. 

The Fair Housing Act and the Americans with Disabilities Act both prohibit discrimination based on health problems.  

Note: Whether you qualify for a mortgage can’t be based on your age, either. “The only instance where a mortgage applicant’s age is relevant is when determining if they’re old enough to sign legal documents, or if they’re eligible for a reverse mortgage,” says Lisa Rice, president and CEO of the National Fair Housing Alliance (NFHA).  

Is COVID-19 a disability? Is COVID-19 a disability?

Is COVID-19 a disability?

The Coronavirus may qualify as a disability as defined by the Fair Housing Act and state or local laws, according to the NFHA.

“Many individuals who contract COVID-19 may experience impairments that limit major life activities substantially in various ways, including not being able to walk long distances, go to the grocery story, drive a car, or care for oneself,” the alliance notes in a COVID-19 report published in April. “If someone with the COVID-19 virus has limitations on their mobility or ability to care for themselves, they may have impairments that have been held to constitute a disability.”

Additionally, folks who share households or provide care for those with COVID-19 would be protected as well.  

  1. Are you single, divorced, or widowed? 

Mortgage lenders are permitted to ask your marital status — but there’s a specific way in which they’re allowed to ask.  

Lenders cannot ask whether you’re single, divorced, or widowed. They can only ask if you’re married, unmarried, or separated. If you’re paying alimony or child support, they may request a copy of your separation agreement, if you have one, or your divorce decree, as this information pertains to your finances. 

Lenders can also ask about your children based on the information reported on your income tax returns and may consider the cost of supporting dependents while assessing your financial situation. 

  1. Are you pregnant or planning to start a family?

You may be so over the moon about being pregnant that you’re sporting a shirt that says “Baby on Board,” but mortgage lenders still don’t have the right to ask about your plans to have children. 

The Equal Credit Opportunity Act prohibits lenders from using this information against you as part of the mortgage approval process. They must assume that even if a mortgage borrower or their co-borrower is pregnant, it won’t affect their future employment or income.  

Speaking up about discrimination 

If any pros in your housing journey do ask questions like these or conduct any other behavior that seems prejudicial or discriminatory, there is help available for you.

Even though discrimination in real estate is against the law, there are still 4 million instances of it per year in the United States, and most go unreported, according to the NFHA. 

While you’re going through the housing process, remember to be an advocate for yourself. Keep careful notes as you work with real estate agents and lenders on the questions they ask and the responses they give you.

If you feel you are a victim of housing discrimination, contact a fair housing center 

These non-profit organizations may investigate your complaint and/or refer you to a government agency, such as the U.S. Department of Housing and Development (HUD), which enforces the Fair Housing Act. 

You can contact HUD at 800-669-9777 or visit the agency’s website to find more information or to file a complaint. 

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