At a DPOR sponsored Fair Housing Seminar years ago I listened to DPOR's Fair Housing instructor Mally Mason make a comment that has stuck with me over the years.  In that seminar she stated that “everyone is a member of a protected class”.  Whether we are talking race, color or an individual’s religion; everyone is a member of a protected class.

That same holds true for source of funds under the Virginia statute.  Whether the funds for your rental come from an employer paycheck, a gift letter or a voucher you are equally protected under the under Virginia’s Fair Housing Act.  Very simply that means anytime the basis for a decision or differential treatment is one's membership in a protected class then that constitutes a discriminatory action in violation of the Virginia Fair Housing Act.  This guidance document as drafted likewise makes that same determination.  As stated in the first paragraph on page 2:

“The new law adds “source of funds” to all of the unlawful discriminatory practices that appear in Virginia Code § 36-96.3, including prohibitions on, for example: . . .  (2) imposing terms, conditions, or privileges of the sale or rental of a dwelling based on one’s source of funds”

While leading the document with that statement, the document as drafted then goes on to direct landlords to screen individuals differently based specifically on the source of funds using the rational that “rent” is really only the tenant’s portion even though legally, rent is the required payment listed in the rental agreement.  Afterall, the rental agreement is between the tenant and the housing provider; not the housing provider and the Public Housing Authority.

Further, the document purports that by redefining rent as the tenant’s portion; this meets the goal of the legislation which was to protect voucher holders from discrimination.  The VA code definition of Source of Funds does not match that claimed “intent”.  Had the intent of the legislation been to carve out a protection for Voucher holders then it should have been written as such.  Utah did just that in creating their protection by crafting their definition as:

"Source of income" means the verifiable condition of being a recipient of federal, state, or local assistance, including medical assistance, or of being a tenant receiving federal, state, or local subsidies, including rental assistance or rent supplements.

Utah Fair Housing Act 57-21-2 (24)

Virginia did not do this, nor did Virginia write into the code any specific screening criteria/calculations/restrictions for Voucher recipients as other states have done. (see footnotes 7 & 11).   Instead, Virginia chose to protect ALL sources of funds equally.  This means everyone should be treated the same regardless of their source of funds.  This means screened exactly the same way no matter where your funding comes from.  Fair Housing is after all, about treating people equally regardless of their membership in a protected class.

This guidance document as drafted is contrary to state law and in violation of the VA Fair Housing Act as it advocates discriminatory treatment on the basis of source of funds. (§ 2.2-4002.1.)

Had this guidance been drafted to address possible disparate impacts related to source of funds the claimed legislative “intent” could be accomplished without the need for Virginia’s Fair Housing Office to endorse discriminatory treatment on the basis of source of funds.  Instead of endorsing discriminatory treatment, this guidance should advocate for all prospects to be screened the same and then suggest the use of an individualized assessment in the event a prospect fails to meet a rent to funds ratio which was applied equally to all residents.  This process would avoid potential disparate impacts and be in line with the US Supreme Court’s disparate impact ruling in the Texas Department of Housing and Community Affairs v The Inclusive Communities Project case.

I ask for the VA Fair Housing Office to redraft this guidance so it; does not violate the VA Fair Housing act, complies with the Supreme Court decision, is based on the actual definition of source of funds, and matches the “intent” as stated by Delegate Jeff Bourne himself during his testimony before the General Assembly on January 30, 2020:

“What we are simply doing is saying that you cannot deny someone applying for a rental unit simply because they’re paying with a voucher.  That’s all we’re doing.  That is it!  -  You still get to check their credit, you still get to verify employment, you still get to get references – all those other things that, that are being done now.”

Virginia had the chance to carve out special protections for Housing Choice Voucher holders.  This however was not done and, as evidenced by the comment above, the bill's patron chose to draft the code language so it protected ALL sources of income EQUALLY.  Simply put, everyone should be treated the same regardless of their source of funds.

This is a credibility moment for the Virginia Fair Housing Office.  I request the Fair Housing Office redraft this guidance so it; acknowledges potential disparate impacts, interprets the code language as written and applies the protections afforded under this code equally regardless of one’s source of funds.

Thank you.