Housing discrimination is illegal under several different federal and state laws1 . Each of the laws is slightly different in whom it protects, what type of housing it covers, and what kind of discrimination is illegal. If one law does not fit your situation, another law or possibly several laws may.2 Under these laws it is illegal to:
- Discriminate in refusing to rent or sell property,
- Discriminate in the terms or conditions of a rental or sales agreement,
- Discriminate in mortgage lending or other related practices,
- Advertise in a discriminatory manner, or
- Otherwise make housing unavailable.
In addition, under the law, people with physical and mental disabilities are entitled to reasonable accommodations in any housing transaction. For more see Discrimination Based on Disability.3
When deciding if you have been the victim of housing discrimination, you should ask yourself three questions:
- Am I protected from discrimination by the anti-discrimination laws?
- Is the property I want to rent (or buy) covered by the anti-discrimination laws?
- Is the behavior of the landlord, manager, or other person illegal under the law?
The answer to all three questions must be “yes“ for the anti-discrimination laws to apply to your situation.
Following is a chart called Federal and State Anti-Discrimination Laws Comparison that gives you basic information about federal and state discrimination laws. Another chart that describes federal and state laws that protect people who have physical and mental disabilities is at the end of the section called Discrimination Based on Disability.
|1. Federal and State Anti-Discrimination Laws Comparison|
|What Is the Discrimination Based On||What Housing Is Not Covered by the Law*||What Law Says It's Illegal||Where Can You File a Complaint|
|Race||This law applies to all properties.||Federal: 42 U.S.C. §§1981, 1982||Court|
|Race Color National Origin Sex Religion||Federal Law: Owner-occupied buildings with 4 units or fewer.
State Law: Owner-occupied buildings with 2 units or fewer.
Title VIII, 42 U.S.C. §3604 State: M.G.L. c. 151B, §4(7)
|HUD, MCAD, or Court|
Includes families with children and pregnant women and discrimination because of lead paint
|Federal and State Law:
Same as box above, plus:
|Federal: Title VIII, 42 U.S.C. §3604 State: M.G.L. c. 151B, §4(11)||HUD, MCAD, or Court|
|Physical or Mental Disability||Federal Law:
Owner-occupied buildings with 4 units or fewer
All housing not receiving federal money
Owner-occupied buildings with 2 units or fewer.
Title VIII, 42 U.S.C. §3604
MCAD, State Court
|Marital Status, Sexual Orientation,
Age (except minors), Ancestry, Military
or Veteran Status, Genetic
Information, or Gender
2-unit owner-occupied buildings.
M.G.L. c. 151B, §4(7)
|MCAD, State Court|
|Public Assistance or
This law applies to all properties.
|State Only M.G.L. c. 151B, §4(10)||MCAD, State Court|
* What housing is exempt (not covered) is complicated. For example, properties that are listed as exempt under some laws may be covered by other laws.
2. Who Is Protected
It is illegal for someone to discriminate against you based on your:
- National origin
- Sexual orientation
- Gender Identity/Transgender Status
- Marital status
- Familial status
- (which includes families with children and pregnant women)
- Age (except minors4 )
- Physical or mental disability or handicap
- Receipt of public assistance (welfare, SSI, EAEDC, etc.)
- Receipt of a housing subsidy
- Status as a veteran or member of the armed forces
Under the law, people who are discriminated against for these reasons are members of a "protected class." If you feel you have been discriminated against for one or more of the reasons on the list above, you should read the section in this chapter called Steps to Take If You Think You Have Been Discriminated Against.
3. What Housing Is
Covered by the Anti-Discrimination Laws
Many types of housing are covered under the fair housing laws.5 The laws cover houses, apartments, mobile homes, condominiums, cooperatives, and some types of temporary residences.6
In general, owner-occupied two-family buildings are not covered under most of the fair housing laws. However, no landlord or owner can discriminate based on race, receipt of public assistance, or receipt of a housing subsidy. This means, for example, that if a landlord who lives in one half of a two-unit building wants to rent only to men and not to women, the landlord can do this. But if they refuse to rent to someone because they are African American or have a Section 8 voucher, that would be illegal.
Each fair housing law is slightly different in who it does and does not cover. Landlords who are exempt (not covered) under one law may still face requirements under another. See the chart called Federal and State Anti-Discrimination Laws Comparison, which lists the housing discrimination laws and what housing is not covered under each.
4. What Behavior Is Illegal
If you are a member of one of the groups listed in the Who Is Protected Against Discrimination, it is illegal for a landlord, real estate agent, or apartment manager to discriminate against you by doing any of the following things:
- Refusing to rent to you. 7
EXAMPLE: If you are Cambodian, a landlord cannot refuse to rent to you because your income is too low if she accepts a white applicant for the same apartment whose income is the same or less than yours.
- Offering you different terms or conditions on any of the terms of your lease or tenancy.
EXAMPLE: It is illegal for a landlord to require you to pay a security deposit, but not require that other tenants pay a security deposit. Likewise, a landlord cannot offer others rent discounts or extra services, but not offer them to you.8
- Telling you the place you want is already rented when it is still available. 9
EXAMPLE: A landlord says: "Yes, it was available when you called, but I just rented it 10 minutes ago right before you came to look at it."
- Advertising in writing in a way that indicates a preference or limitation, or is discriminatory. 10
EXAMPLE: An ad in the newspaper says "not deleaded" or "mature tenants only."
- Making an oral statement that is discriminatory.
EXAMPLE: A real estate agent says: "I'm so sorry, we can't rent to you because the owner doesn't want children here."
- "Steering" you into one part of town or one part of an apartment building.11
EXAMPLE: A real estate agent directs a person of color looking for an apartment into a neighborhood that is predominantly African-American and away from neighborhoods that are predominantly white. Or, a landlord rents to families with children only on certain floors or in certain buildings in a housing complex.12
- Refusing to negotiate to rent an apartment.13
EXAMPLE: A landlord uses burdensome application procedures (such as asking for three verifications of income) or uses delay tactics that she does not impose on others in order to discourage you from renting.
- Discriminating in brokerage services. 14
EXAMPLE: A real estate agent refuses to return your phone calls or avoids taking your calls, or does not tell you about everything that is available.
- Threatening, coercing, or intimidating you when you attempt to exercise your fair housing rights.15
EXAMPLE: A landlord says: "Personally, I don't mind renting to Latinos, but the neighbors may be hard on your kids."
- Refusing to reasonably accommodate the needs of a person with a mental or physical disability in order to allow that person to occupy and fully enjoy the unit.16
EXAMPLE: A landlord evicts a blind person for having a dog when that dog serves as a seeing-eye dog. A reasonable accommodation would be to allow the blind tenant to stay with her dog.
- Using policies that fall hardest on a protected group. Even if a landlord has a policy or practice that is not itself illegal, if it impacts members of protected groups more heavily than others, it may violate fair housing laws.17
EXAMPLE: A landlord refuses to rent to anyone with a criminal record, no matter what the offense or when it took place. This across the board policy is most likely illegal, but not because people with criminal records are a protected group. It may be discriminatory because it will deny housing to people of color more than others because they have been so heavily targeted by the criminal justice system.18
When Can a Landlord Legitimately Refuse to Rent or Evict
There are many legitimate reasons a landlord can refuse to rent to you or can evict you. Some legal reasons that a landlord can refuse to rent to you or to evict you may be:
- You cannot afford the rent;
- You have been evicted from past apartments for non-payment of rent;
- You have a history of destroying property;
- You or someone in your family has a criminal record which shows that they are a threat to the health or safety of others;
- You or someone in your family has damaged the apartment you currently live in;
- You or someone in your family has disturbed the neighbors;
- You have not paid the rent.
But watch out: While landlords can set reasonable standards and may have legitimate reasons for decisions they are making, they must still treat people the same. This means they cannot use one set of standards for people who are protected against discrimination and another set of standards for people who are not protected against discrimination. For example, while a landlord can perform credit checks on all applicants, it is illegal for a landlord to only perform credit checks on certain groups of people (for example people with Section 8 or people with a disability).
5. How Can You Tell
If You Are Being
Discrimination happens in many ways. Sometimes it is very easy to know when you are being discriminated against. If a landlord or a rental agent does not want to talk to you after she sees that you are black or Latino or have a child, her behavior is highly suspect. If a landlord or rental agent says any of the following things to you when you telephone or visit, that person is breaking the law:
- "I don't rent to families with children."
- "We have lead paint and it would be too dangerous for you and your baby here."
- "The owner doesn't accept people with Section 8 subsidies or people on welfare."
- "Wheelchairs? We cannot accommodate that."
- "The owner prefers married couples."
- "I'd be glad to rent to you, but your Latino friend can't live here or visit here because the neighbors would object."19
Usually, landlords who are illegally discriminating are more subtle and it is not easy to know if you have been discriminated against. For example, you may ask a landlord or real estate agent about an apartment and be told something like:
- "I'm sorry, the place we advertised was just rented."
- "We have a very long waiting list on those apartments."
- "No, we don't have anything available in that particular neighborhood that's at your price."
- "I'd show the place to you, but I don't have the key right now."
- "I'll call you back if I get any place you might want." (But she doesn't phone back.)
A landlord or a real estate agent may say these things to you in a polite and friendly manner, and they could be true. Or, these statements could be cover-ups for illegally denying you the place you want to live in. Beware: The face of discrimination is often smiling.
For more see Steps to Take If You Think You Have Been Discriminated Against.
1 . Federal Laws
Title VIII of the Civil Rights Act of 1968 (the federal Fair Housing Act), 42 U.S.C. §3601 et seq. The Fair Housing Act was amended by the Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, § 13(a), 102 Stat. 1636 (1988), which became effective March 12, 1989. These amendments added "familial status" and disability to the nondiscrimination provisions of the Fair Housing Act and greatly expanded the enforcement sections. See H. Comm. on the Judiciary, Fair Housing Amendments Act of 1988, H. Rep. No. 100-711 (1988), reprinted in 1988 U.S.C.C.A.N. 2173; 134 Cong. Rec. H6491-6501 (daily ed. Aug. 8, 1988); 134 Cong. Rec. S10532-10569 (daily ed. Aug. 2, 1988); 134 Cong. Rec. H4898-4932 (daily ed. June 29, 1988) for a full presentation of the Congressional intent behind the amendments. The Fair Housing Act was most recently amended in 1995. Specifically, §3607 was amended by the Housing for Older Persons Act of 1995, Pub. L. No. 104-76, § 1, 109 Stat. 787 (1995). Current provisions of the Act prohibit the following discriminatory practices against the groups protected by the Fair Housing Act: refusing to sell, rent, negotiate for, "or otherwise make unavailable or deny" a dwelling; discriminating in the "terms, conditions, or privileges of a sale or rental of a dwelling or in the provision of services or facilities in connection therewith"; making or publishing any discriminatory statement in regard to a sale or rental; misrepresenting the availability of a dwelling; inducing a person to sell or rent any dwelling by representations about the presence of members of a protected class in the neighborhood; and discriminating in access to real estate services. 42 U.S.C. §§3604,3606.
The HUD regulations implementing the federal Fair Housing Act are at 24 C.F.R. §§100 et seq. Title VIII permits a complaint to be filed within two years in a U.S. district court or in state court or within one year at HUD. 42 U.S.C. §3610(a)(1)(A)(i); 42 U.S.C. §3613(a)(1)(A). If a timely complaint is filed with HUD, then the two-year court limitations period is tolled during the time that the HUD complaint is pending. 42 U.S.C. §3613(a)(1)(B). Certain single-family homes and all owner-occupied two-, three-, and four-family dwellings are exempted under 42 U.S.C. §3603(b), 24 C.F.R. §100.10(c). This exemption will not apply if any "statement or advertisement" is made, printed, or published or caused to be made printed, or published, with respect to the rental of a dwelling that indicates any preference, limitation, or discrimination on the grounds prohibited by Title VIII, 42 U.S.C. §§3603(b), 3604(c). Note that oral statements as well as written statements and advertisements are covered by this provision limiting the exemption for single-family homes and two-, three-, and four-family dwellings under Title VIII. See Mayers v. Ridley, 465 F.2d 630, 649 (D.C. Cir. 1972) (en banc) (Wilkey, J., concurring); see also id. at 633 (Skelly Wright, J., concurring) and 24 C.F.R. §§100.75(b), 100.75(c)(2). Note also that there is no exemption from Title VIII for discrimination by those engaged in the business of selling, brokering, or appraising residential real property, 42 U.S.C. §§3605(a), 3605(b)(2) and 3606. Thus, although on occasions a landlord may be exempt from the provisions of Title VIII, her broker will never be.
Civil Rights Act of 1866, 42 U.S.C. §1982. Section 1982 protects American citizens against discrimination on the basis of race or color only. However, the U.S. Supreme Court has defined racial discrimination under §1982 broadly so that it will encompass many national origin claims and some religion claims. See Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987). Section 1982 covers all housing—unlike state and federal fair housing laws, which exempt some units in small buildings. This law is not directly enforced by federal agencies, so victims of discrimination must sue in court, which may award compensatory and punitive damages as well as equitable relief and attorney's fees. This remedy is useful because the applicable statute of limitations for filing a §1982 action in federal or state court in Massachusetts is most likely three years, longer than that allowed for initial filings under the federal Fair Housing Act or G.L. c. 151B. Cf. Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991), reh'g and reh'g en banc denied (1st Cir. Oct. 9, 1991), cert. denied, 502 U.S. 1063 (1992) (relying on Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) to hold that Massachusetts' three-year personal injury statute of limitations applies to §1981 claims). But see Sims v. Order of United Commercial Travelers of America, 343 F. Supp. 112, 115 (D. Mass. 1972) (applying Massachusetts' six-year contract statute of limitations to §1982 claims, but prior to Supreme Court's decision in Goodman).
Civil Rights Act of 1866, 42 U.S.C. §1981. Section 1981 protects the rights of racial and ethnic minorities to make and enforce contracts, including leases. In contrast to §1982, the victim need not be an American citizen. The statute of limitations is three years. Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991), reh'g and reh'g en banc denied (1st Cir. Oct. 9, 1991), cert. denied, 502 U.S. 1063 (1992).
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq. (2000). "No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The HUD implementing regulations are at 24 C.F.R. §1.1 et seq. Title VI itself requires intentional discrimination, but the HUD regulations may be satisfied by a showing of "disparate impact." Alexander v. Choate, 469 U.S. 287, 293 (1985), construing Guardians Ass'n v. Civil Serv. Comm'n of New York City., 463 U.S. 582, 584 (1983).
This law is often more difficult to use than Title VIII (which also covers federally financed as well as private housing). It applies only to housing that has some federal financial assistance (such as federally financed public housing, Section 8 project-based or HUD-subsidized housing). While there is a private right of action under Title VI against state or local agencies that receive federal funds, see Guardians Association v. Civil Service Commission of New York City, 463 U.S. 582, 593-97, 624-28, 635-36 (1983), courts are not in agreement as to whether a private right of action is available against HUD or other federal agencies. See generally Clients' Council v. Pierce, 711 F.2d 1406, 1424 (8th Cir. 1983), reh'g and reh'g en banc denied (8th Cir. Sept. 15, 1983). Also, a private right of action is not available to enforce the federal regulations promulgated pursuant to Title VI. See Alexander v. Sandoval, 532 U.S. 275 (2001).
G.L. c. 151B prohibits discrimination primarily in employment, housing, and some consumer and credit transactions. Ch. 151B, §§4(3B), (3C), (6)-(8), (10)-(11), (13), and (18) concern discrimination in housing against various protected groups.
Massachusetts Equal Rights Act, G.L. c. 93, §102(a), was enacted in 1989 and prohibits discrimination on the basis of race, color, creed, national origin, or sex in the making and enforcing of contracts and the purchase and renting of property. G.L. c. 93, §103 prohibits age and handicap discrimination and was added in 1990. For a general discussion of the Massachusetts Equal Rights Act, see 45 Mass. Prac. §§10.1-10.8 (Scott C. Moriearty, et al. 2008).
Massachusetts Civil Rights Act, G.L. c. 12, §11H, protects all persons from threats, intimidation, or coercion which interfere with rights secured by state or federal laws. For a general discussion of the Massachusetts Civil Rights Act, see 45 Mass. Prac. §§9.1-9.22 (Scott C. Moriearty, et al. 2008).
Massachusetts Consumer Protection Act, G.L. c. 93A, §§1-11, protects consumers from unfair or deceptive acts in the conduct of any "trade or commerce." Due to this qualification, small landlords may be exempt. See Billings v. Wilson, 397 Mass. 614 (1986); Sayah v. Hatzipetro, 397 Mass. 1004 (1986) (rescript); Young v. Patukonis, 24 Mass. App. Ct. 907 (1987) (rescript). A complaint must be filed within four years after the cause of action accrues.
2 . In this chapter, we focus on owners (and their employees and agents) and brokers or real estate agents who illegally discriminate in renting housing. The federal and state fair housing laws and court decisions prohibit discrimination by several other entities involved in housing, such as federal, state, and local governments, newspaper advertisers, banks and mortgage companies, insurance companies, appraisers, local governments that enact discriminatory zoning laws, and public housing authorities that refuse to administer certain housing subsidies. Discrimination in housing sales, financing, advertising, insuring, and appraising is also illegal. However, space constraints compel us to concentrate on owners and agents as these are the people tenants are most likely to deal with.
Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. §794 (Supp. IV 2004), prohibits discrimination on the basis of disability in programs and activities conducted by HUD or that receive financial assistance from HUD. 29 U.S.C. §794(a) provides that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ." This law applies only to housing that receives federal financial assistance such as federally aided public housing or HUD- subsidized housing. The law also applies to state-aided or subsidized housing if the public housing agency receives any federal money for housing (which almost all do). See also HUD §504 regulations (at 24 C.F.R. §§8.1 et seq.).
Title II of the Americans with Disabilities Act of 1990, codified at 42 U.S.C. §12132, bans disability discrimination in services of state and local governments, whether or not they receive federal financial assistance.
Chapter 722 of the Acts of 1989 modifies several provisions of Massachusetts law, most importantly, G.L. c. 151B, by extending to disabled persons the right to be free from housing discrimination, enhancing enforcement proceedings for all protected groups, and conforming state law to the federal Fair Housing Act.
Amendment Article 114 to the Massachusetts Constitution provides that "[n]o otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the Commonwealth." Amendment Article 114 was approved and ratified on November 4, 1980. The language of the amendment applies to public and private conduct, thereby providing protection with respect to all types of housing regardless of any federal or state involvement and regardless of the size or type of housing.
4 . M.G.L. c. 151B, §§4(6), (7), prohibits discrimination in housing based on a tenant's "age," but the statute's protections do not apply to "minors nor to residency in state-aided or federally-aided housing developments for the elderly nor to residency in housing developments assisted under the federal low income housing tax credit and intended for use as housing for persons 55 years of age or over or 62 years of age or over, nor to residency in communities consisting of either a structure or structures constructed expressly for use as housing for persons 55 years of age or over or 62 years of age or over if the housing owner or manager register biennially with the department of housing and community development." The federal Fair Housing Act does not include "age" as a protected category.
5 . The federal Fair Housing Act applies to "dwellings," which include any building "occupied as, or designed or intended for occupancy as, a residence by one or more families . . . ." 42 U.S.C. §3602(b). The state anti-discrimination law applies to "housing accommodations," which include any building "which is used or occupied or is intended, arranged or designed to be used or occupied, as the home, residence or sleeping place of one or more human beings." G.L. c. 151B, §1(9).
6 . The federal Fair Housing Act has been interpreted to apply to various residences that were temporary in nature. See, e.g. United States v. Hughes Memorial Home, 396 F. Supp. 544 (W.D.Va. 1975) (children's home); United States v. Columbus Country Club, 915 f 2nd 877 (3d Cir 1990), reh'g and reh'g en banc denied (3d Cir. 1990), cert. denied, 501 U.S. 1205 (1991) (summer homes); Woods v. Foster, 884 F. Supp. 1169 (N.D. Ill. 1995) and Defiore v. City Rescue Mission of New Castle, 995 F. Supp. 2d 413 (W.D. Pa. 2013) (homeless shelter); Lauer Farms v. Waushara County Bd. of Adjustmen, 986 F. Supp. 544 (E.D. Wis. 1997) (temporary structures for housing migrant farm workers); Wilson v. Phoenix House, 978 N.Y.S.2d 748 (N.Y. Sup. 2013) (residential drug treatment facility).
7 . There are many examples. See, e.g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir. 1979); Crowell v. Lantzakis, 80-BPR-0009 (MCAD 1983); Gardner v. Pianka, 2006 WL 2918563 (MCAD 2006), 28 MDLR 189 (2006).
8 . Demanding higher rents or more stringent terms or prices from minority applicants is prohibited by 42 U.S.C. §3604(b). See United States v. Long, remanded on other grounds, 537 F.2d 1151 (4th Cir. 1975), cert. denied, 429 U.S. 871 (1976). Delaying minority applications also constitutes the imposition of more stringent terms. See Williamsburg Fair Housing v. N.Y.C. Housing Auth., 493 F. Supp. 1225 (S.D.N.Y. 1980), aff'd without opinion, 647 F.2d 163 (2d Cir. 1981); Luna v. Lynch, 82-BPR-0083 (MCAD 1985). HUD has rejected the argument that different security deposits should be permitted for tenants with children or a physical disability (Preamble II, 24 C.F.R. ch. 1, subch. A, app. 1 at 54 Fed. Reg. 3239 [Jan. 23, 1989]). See also 42 U.S.C. §3604(f)(2); 24 C.F.R. §§100.60(b)(3), (b)(4), 100.65 (b)(1); and U.S. Dep’t of Justice & U.S. Dep’t of Hous. & Urb. Devel., Joint Statement on Reasonable Accommodations Under the Fair Housing Act (May 17, 2004) at 9.
9 . False representation of non-availability is also prohibited. See 42 U.S.C. §3604(d); Havens Realty Corp. v. Coleman, 455 U.S. 363, 374-75 (1982); Seaton v. Sky Realty Co., 491 F.2d 634, 635-36 (7th Cir. 1974); Davis v. Mansards, 597 F. Supp. 334, 343 (N.D. Ind. 1984).
10 . A management firm that published a brochure that contained virtually no blacks as photo models showed a racial preference in violation of 42 U.S.C. §3604. See Saunders v. General Servs. Corp., 659 F. Supp. 1042 (E.D. Va. 1987). The provision is not limited to advertising. HUD regulations specifically include oral and written statements made by a person engaged in the rental of a dwelling. See 24 C.F.R. §100.75(b). See also Mayers v. Ridley, 465 F.2d 630, 649 (D.C. Cir. 1972) (en banc). Also, G.L. c. 151B, §4(7B) mirrors the language of Title VIII and thus oral or written notices or statements would also be violations under state law.
11 . Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-75 (1982); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 111-15 (1979); Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1529 (7th Cir. 1990).
12 . A landlord's policy of evicting families with children from one of her buildings had a "substantially greater adverse impact on minority tenants." See Betsey v. Turtle Creek Assocs., 736 F.2d 983, 988 (4th Cir. 1984).
13 . 42 U.S.C. §3604(a), (f)(1). Refusal to negotiate may also involve the pretense that no units are available. The courts have made clear that these avoidance techniques are condemned. See, e.g., Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 207-08 (1972) (declined to follow for different reason); United States v. Youritan Construction Co., 370 F. Supp. 643, 648 (N.D. Cal. 1973) ("laws prohibiting discrimination in housing because of race prohibit not only, for example, overt racial rejection of applicants, but subtle behavior as well."), aff'd as modified, 509 F.2d 623 (9th Cir. 1975). State law explicitly prohibits a refusal to negotiate. See G.L. c. 151B, §4(6), (7).
14 . Discrimination in the provision of access to any service relating to the renting or selling of homes is prohibited. See 42 U.S.C. §3606, 24 C.F.R. §100.90, 24 C.F.R. ch.1, subch. A, app. I at 522 (1989). Discrimination in the provision of brokerage services is also prohibited by state law. See G.L. c. 151B, §4(6), (7), (11).
15 . 42 U.S.C. §3617; G.L. c. 12, §§11H and 11I. Section 3617's protection extends to persons who have "aided or encouraged" others in the exercise of their Title VIII rights. See Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir. 1975). See, by way of analogy, Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 99-100 (1987) (acquiescence in a third party's desire to repress speech did amount to threats, intimidation, or coercion under G.L. c. 12, §§11H and 11I).
16 . See HUD regulations implementing the disability provisions of Title VIII at 24 C.F.R. §100.204; G.L. c. 151B, §4(7A); Whittier Terrace Assocs. v. Hampshire, 26 Mass. App. Ct. 1020 (1989) (rescript); City Wide Assocs. v. Penfield, 409 Mass. 140 (1991); Peabody Properties Inc. v. Jeffries, Hampden Housing Court, 88-SP-7613-S (Abrashkin, J., Jan. 6, 1989); Lawrence Housing Authority v. Baez, Northeast Housing Court, 92-SP-00025 (Kerman, J., Oct. 28, 1992).
17 . The theory of this type of fair housing violation is a “disparate impact” theory and is where a policy or practice which may appear to be neutral, adversely or disparately affects one group of people of a protected class more than another. In 2015, the Supreme Court held that a policy or practice that was neutral on its face, but disproportionately harmed protected groups in practice could be discriminatory under the federal Fair Housing Act. Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S.Ct. 2507 (June 25, 2015).
18 . April 4, 2016 HUD Guidance on Use of Criminal Records by Housing Providers https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf
19 . See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 207-08 (1972).