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1.4.2 History

The FHA was originally passed in 1968 as Title VIII of the Civil Rights Act of 1964.73 The Civil Rights Act was enacted pursuant to the Thirteenth Amendment’s grant of power to Congress to implement laws eliminating the badges and incidents of slavery74 and declares that “it is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”75

The Fair Housing Amendments of 1988 significantly amended the Act.76 While the FHA has always included a prohibition against discrimination in the financing of housing, the 1988 amendments significantly extended the reach of the statute in this area. The amendments also expanded the Act to cover discrimination based on disability and familial status. The limit on the amount of punitive damages was also removed, meaning FHA claims—whether brought on an individual or class basis—have no statutory cap as to the amount of punitive damages that may be awarded.

In addition, the amendments also provide for liberal recovery of attorney fees, an expansive definition of an “aggrieved” party, and a two-year statute of limitations for private actions. Taken together, these amendments make the FHA a powerful tool in credit discrimination cases as a companion, or an alternative, to the ECOA.77

In January, 1989, the Department of Housing and Urban Development (HUD) issued regulations interpreting the Act, as amended by the 1988 amendments.78 Accompanying those regulations as initially proposed was an important preamble, indicating the conduct made unlawful by the Act with examples based on then-existing case law.79 However, the preamble was subsequently withdrawn.80

On September 30, 1996, the FHA was amended as part of the Omnibus Consolidated Appropriations Act of 1996.81 Incentives for self-testing and self-correcting were added, providing that reports or results of self-tests are privileged information under specified conditions. HUD (in cooperation with the Federal Reserve Board) promulgated regulations dealing with these issues effective January 1998.82

HUD issued regulations, effective March 18, 2013, regarding the implementation of the FHA’s discriminatory effects standard.83 The rule explains the applicability of the FHA to practices with an unjustified discriminatory effect, regardless of whether there was an intent to discriminate.

Footnotes

  • 73 42 U.S.C. §§ 3601–3619.

  • 74 Williams v. Matthews Co., 499 F.2d 819, 825 (8th Cir. 1974); United States v. Hunter, 459 F.2d 205, 214 (4th Cir. 1972).

  • 75 42 U.S.C. § 3601.

  • 76 Pub. L. No. 100-430, 102 Stat. 1636.

  • 77 For a detailed discussion of the amendments, see Joseph G. Cook & John L. Sobieski, 3 Civil Rights Actions Ch. 19 (1992); James A. Kushner, Fair Housing: Discrimination in Real Estate, Community Development, and Revitalization § 1.05 (2d ed. 1995).

  • 78 24 C.F.R. pt. 100.

  • 79 53 Fed. Reg. 44,992 (Nov. 7, 1988).

  • 80 54 Fed. Reg. 3232 (Jan. 23, 1989).

  • 81 Pub. L. No. 104-208, 110 Stat. 3009 (1996).

  • 82 62 Fed. Reg. 66,423 (Dec. 18, 1997).

  • 83 24 C.F.R pt. 100.