The Fair Housing Act and non-citizens: What you need to know

In light of contemporary American discourse and current events, a question regarding the scope of the Fair Housing Act was posed: Does the FHA prohibit discrimination on the basis of citizenship?

Put another way, can housing providers refuse to rent to a person because the prospective tenant is an illegal alien? As always, the starting point for this question will be the FHA itself. Under the FHA, it is unlawful to refuse to rent, sell or discriminate in the terms of a rental on the basis of “race, color, religion, sex, familial status or national origin.” The text of the FHA does not directly answer the question as it does not directly state alienage or citizenship. The closest categories relating to citizenship are the bases of race, color and national origin.

The next question is whether discrimination on the basis of citizenship constitutes discrimination on the basis of race, color or national origin. Courts that have addressed this issue have consistently held that it is not.  A U.S. Supreme Court decision, Espinoza v. Farah Mfg. Co., stated that the term “national origin” refers to the country where a person was born or the country from which his or her ancestors came. “National origin” does not refer to the dichotomy between citizen and non-citizen.  In employment contexts, the Supreme Court used a helpful example: “It would be unlawful for an employer to discriminate against aliens because of race, color, religion, sex or national origin—for example, by hiring aliens of Anglo-Saxon background but refusing to hire those of Mexican or Spanish ancestry … but nothing in the Act makes it illegal to discriminate on the basis of citizenship or alienage.”

Because the Supreme Court was construing the same phrase, “national origin,” that appears in other parts of the civil rights act, lower courts have applied that same reasoning to the question of housing.  Therefore, it may be permissible to discriminate on the basis of citizenship, and therefore against, illegal immigrants, under the FHA.

A review of the FHA, however, does not end our inquiry into this subject. As I am sure readers are aware, the Pennsylvania Human Relations Act contains many of the same protections as the FHA and in some areas, additional protection.  The relevant sections of the regulations promulgated under the Pennsylvania Human Relations Act use the terms “race, color, familial status, age, religious creed, ancestry, sex, national origin, handicap or disability of any person” to define a protected class from discrimination. I have yet to find binding Pennsylvania case law directly speaking of citizenship. Thus, for the time being, this question is left unanswered by the Pennsylvania Human Relations Act.

At the end of all of this, we are left with some mostly complete answers. Under federal law, it is permissible to discriminate on the basis of citizenship, but under state law, it may or may not be. (We venture that Pennsylvania would likely follow federal law on this point.)  In reviewing all of this, it is important to remember one last critical point. Whether you should factor in citizenship requirements is a very different question than whether you should make this determination in housing decisions.