The Equal Rights Center (ERC) is a civil rights organization that identifies and seeks to eliminate unlawful and unfair discrimination in housing, employment, and public accommodations in its home community of Greater Washington, D.C. (including Northern Virginia) and nationwide. The ERC is this only private fair housing organization dedicated to serving the entire Greater Washington, D.C. region: we conduct complaint intake, investigations, education and outreach, assist individuals with filing fair housing complaints, and if necessary, pursue enforcement actions. We have decades of experience with ensuring that D.C.’s prohibition on source of income discrimination is meaningful and were pleased to see source of funds discrimination outlawed statewide in Virginia in 2020. We encourage the Real Estate Board to immediately adopt the proposed guidance document, “Housing Discrimination on the Basis of Source of Funds”, as drafted.

Since the enactment of the source of funds protection in Virginia’s fair housing law, the ERC has fielded multiple calls from both voucher holders and housing providers asking for clarification of what would constitute source of funds discrimination. The guidance serves as an extremely helpful tool for educating voucher holders, housing providers, and the public about the new protections and provides clear, easy to understand answers to some of the most common questions the ERC has heard.

The guidance as drafted is carefully rooted in the primary impetus for House Bill 6, which was “to protect renters and buyers from discrimination if they intend to pay for housing using a Housing Choice Voucher[.]” It provides a set of clear examples regarding how housing providers can ensure they are complying with the new law. Given that the protection is new in Virginia, there are some aspects of the Housing Choice Voucher Program that many housing providers who have not previously rented to voucher holders are likely unfamiliar with. Many housing assistance programs have specific requirements, and as a result, landlords cannot take a “one size fits all” approach to screening housing applicants while remaining in compliance with the source of funds protection—doing so will ensure a disparate impact on voucher holders that will lead to their automatic disqualification from housing. Thus, it is necessary and appropriate that the Real Estate Board provide clarity in order to promote compliance and assist housing providers to avoid unnecessary litigation.

In the absence of such guidance, litigation is sometimes the only way to clarify the extent of certain protections necessary to prevent discrimination against voucher holders and other groups who tend to experience discrimination. For example, in May 2017, more than a decade after D.C. outlawed source of income discrimination, the ERC filed suit against a housing provider who refused to accept temporary subsidies. The case settled after a D.C. Superior Court ruling that Defendants’ refusal to rent housing units to applicants who wished to pay for all or a portion of their housing costs using short-term subsidies constituted source of income discrimination under the D.C. Human Rights Act (see https://equalrightscenter.org/belmont-crossing-subsidies-settlement-press-release/).

In addition to the cases and statutes from other places cited in the guidance, it is also important to note that other jurisdictions have issued similar guidance documents (see, for example, https://ohr.dc.gov/sites/default/files/dc/sites/ohr/publication/attachments/OHRGuidance16-01_SourceofIncome_FINAL%202_17.pdf and https://ohr.dc.gov/sites/default/files/dc/sites/ohr/publication/attachments/OHR%20Enforcement%20Guidance%20-%20HousingGuidance_091820_FINAL.pdf). This guidance document is therefore in line with how other jurisdictions have issued guidance on similar topics. 

There are a large number of comments, obviously based on one template, that purport to be concerned about whether tenants can afford the cost of living, and not just the cost of rent.  These comments appear to be made in relation to how the guidance directs housing providers to screen income eligibility for voucher holders. We posit that housing providers are not well equipped to decide whether their tenants can afford the total cost of living. Many housing assistance programs already take factors like utility costs under consideration in determining a tenant’s rent requirements. There are also multiple ways in which tenants can meet their other needs, including utility assistance programs and SNAP. Housing providers should not be the arbiters of whether a tenant can meet all of their needs; rather, as suggested in the guidance, housing providers have “a legitimate business interest in assuring tenants can pay rent[.]”  The income verification allowed for by the guidance, based on the tenant’s portion of the rent, sufficiently allows housing providers to do so.

A few other comments raise concerns about guidance that’s missing from this particular document; for example, guidance about gift letters, saving accounts and temporary subsidies. Although it may be advisable for the Real Estate Board to also issue guidance about these topics, there is no reason to delay finalizing the current guidance document as it is drafted. When it comes to ensuring that the newly adopted protections have a meaningful impact on people’s lives, let’s not make perfect the enemy of the good.

Thank you for the opportunity to offer comments on the guidance document. Please feel free to contact us with any questions or concerns.