Fair Housing Education

Fair Housing Laws

 

General Overview

Title VIII of the Civil Rights Act of 1968 is otherwise known as the Fair Housing Act. It states that you cannot be discriminated against in any type of housing related transaction because of your Race, Gender, Religion, National Origin or Color. This Act was amended in 1988 to include Familial Status (i.e. the presence of children under the age of 18 in a family) and Handicap.

In the State of Pennsylvania, the Human Relations Act also includes the protected class of Age (for those over 40). In this area, the City of Lancaster also has local coverage and includes sexual orientation. It is wise to determine if your state or locality has its own Human Relations Act that includes different protected classes.

What Housing is covered?

All single family homes are covered by the act when they are owned by private persons and a real estate broker is used, and all single family homes owned by corporations or partnerships regardless of whether a broker is used. All Multifamily dwellings are covered by the Act, including townhouse and condominium communities. There are two exceptions to this rule.

The first is called the “Mrs. Murphy’s exemption.” This exemption states that if the dwelling has four or less units and the owner lives in one of the units, it is exempt from the Fair Housing Act.

The second is for qualified senior housing which is exempt only from the Familial Status provision of the act. To be a qualified senior community you must meet the following standards: Either 100% of the community is 62 or older, or 80% of the households have at least one resident 55 or older. None of this housing is exempt from section 804(c) of the Act which states that you cannot make, print or publish a discriminatory statement. Any exempt housing that violates 804(c) has lost that exemption and can be held liable under the Act.

Under the Fair Housing Act, it is against the law to:

  • Refuse to rent or sell housing
  • Refuse to negotiate for housing
  • Make housing unavailable or deny that housing is available
  • Set different terms, conditions or privileges for the sale or rental of housing
  • Advertise in a discriminatory way
  • Blockbust — persuade owners to sell or rent by telling them that minority groups are moving into the neighborhood
  • Deny or make different terms or conditions for a mortgage, home loan, home insurance, or other real estate related transaction
  • Threaten, coerce or intimidate anyone exercising a fair housing right or assisting others in exercising those rights

Fair Housing Act

Advertising Guidelines

There has been much confusion in the past few years regarding what is legal and what is illegal to use in real estate advertising. There have also been many arguments about who can be held responsible for illegal advertising and whether or not the advertising constitutes first amendment protections or not. The following information should be helpful in sorting out these issues.

Firstly, both the publisher and the advertiser can be held liable for discriminatory housing advertising. Discriminatory housing advertising is not protected under the first amendment of the constitution for freedom of speech, because housing advertising is considered commercial speech and therefore not covered. If the publisher of a newspaper accepts an advertisement from a housing provider that states “no children,” both the newspaper and the housing provider can be held liable. However, it is not the publishers responsibility to make sure the housing provider’s statements are accurate for advertising not discriminatory on its face. For example, if the owner of an apartment complex wants to advertise the complex as “housing for older persons,” the publisher cannot be held liable if the complex is found not to be a qualified senior facility, but the owner of the complex can be held liable for the discriminatory advertising.

Secondly, what does constitute discriminatory advertising? Housing advertisements should state no discriminatory preference or limitation on account of any of the protected classes. Let’s start with race, color or National Origin.

Use of words describing the housing, the current or potential residents or the neighbors or neighborhood in racial or ethnic terms (i.e., white family home, no Irish) will create liability for discriminatory advertising. However, advertisements which are facially neutral will not create liability. For example, the use of phrases such as master bedroom, rare find, or desirable neighborhood are not considered discriminatory.

Advertisements should contain no explicit preference, limitation or discrimination on account of religion (i.e. no Jews, Christian home). Advertisements which use the legal name of an entity which contains a religious reference (for example, Roselawn Catholic Home), or those which contain a religious symbol (such as a cross), standing alone, may indicate religious preference. However, if such an advertisement includes a disclaimer (such as the statement “This Home does not discriminate on the basis of race, color, religion, national origin, sex, handicap or familial status”) it will not be considered discriminatory advertising. Advertisements containing descriptions of properties (apartment complex with chapel), or services (kosher meals available) do not on their face state a preference for persons likely to make use of those facilities, and are not considered discriminatory. The use of secularized terms or symbols relating to religious holidays such as Santa Claus, the Easter Bunny, or St.Valentine’s Day, or phrases such as Merry Christmas, Happy Easter or the like are not considered discriminatory advertising.

Advertisements for single family dwellings or separate units in a multi-family dwellings should contain no explicit preference, limitation or discrimination based on gender. Use of the term master bedroom does not constitute a violation of either the gender discrimination provisions or the race discrimination provisions. Terms such as “mother-in-law suite” and “bachelor apartment” are commonly used as physical descriptions of housing units and are not considered discriminatory advertising.

Real estate advertisements should not contain explicit exclusions, limitations or other indications of discrimination based on handicap (i.e., no wheelchairs). Advertisements containing descriptions of the property (great view, fourth-floor walk-up, walk-in closets), services or facilities (jogging trails), or neighborhoods (walk to bus-stop) are not considered discriminatory advertising. Advertisements describing the conduct required of residents (“non-smoking,” “sober”) are not considered discriminatory advertising. Advertisements containing descriptions of accessible features are lawful (wheelchair ramp).

Advertisements may not state an explicit preference, limitation or discrimination based on familial status. Advertisements may not contain limitations on the number or ages of children, or state a preference for adults, couples or singles. Advertisements describing the property (two bedroom, cozy, family room), services and facilities (no bicycles allowed) or neighborhoods (quiet streets) are not facially discriminatory and are not considered discriminatory advertising.

Hopefully the above information will help guide you through the mire of confusing information available from various sources today regarding real estate advertising. The information in this article was taken directly from the HUD guidance memo on advertising and is standard practice on how to deal with advertising issues.

You can read the Achtenberg memo in its entirety online.

Internet Advertising Guidelines

Section 804(c) of the Fair Housing Act makes it illegal “to make, print, or publish, or cause to be made, printed, or published, any notice or statement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, or familial status.” This prohibition applies to all advertising media, including newspapers, magazines, television, radio, and the Internet. Just as the Department has found newspapers in violation of the Fair Housing Act for publishing discriminatory classifieds, the Department also has concluded that it is illegal for Web sites to publish discriminatory advertisements.

Some Web sites assert that they are exempt from liability under Section 804(c) of the Fair Housing Act because of a provision in the Communications Decency Act (“CDA”), 47 US. C. $ 230, which limits the liability of interactive computer services for content originating with a third party user of the service. Although the CDA does not state an intent to limit liability under the Fair Housing Act or other civil rights statutes, some believe that Section 230 of the CDA gives Internet publishers immunity from lawsuits brought under federal and state civil rights statutes. However, HUD has concluded that the CDA does not make Web sites immune from liability under the Fair Housing Act or from liability under state and local laws that HUD has certified as substantially equivalent to the Fair Housing Act.

In order to ensure that Web sites do not provide an open market for unlawful discriminatory conduct, HUD will continue to investigate allegations that Web sites have published discriminatory advertisements on the Internet and, where there is cause to believe discrimination has occurred, will issue a Determination of Reasonable Cause. As required by the Fair Housing Act, HUD will attempt conciliation in each case. I recommend that proposed conciliation agreements include provisions designed to prevent discriminatory advertisements from being posted to the Web site; this may include the Web site agreeing to practices such as screening, filtering, pop-up warnings, or user self-certification.

This guidance does not change the established procedures for processing these cases. Regional Directors should continue to process these cases in accordance with current guidelines.

Occupants in a Household

The U.S. Department of Housing & Urban Development (HUD) issued a statement of policy describing the guidelines it will use in evaluating occupancy limits to determine whether they comply with the Fair Housing Act’s prohibition on familial status discrimination. The guidelines effective date was December 18, 1998 and places as standard a March 29, 1991 memo that is referred to as “The Keating Memo.”

This memo states that HUD believes that an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act. However, the memo also states that the reasonableness of any occupancy policy is rebuttable, and should not imply that they will evaluate compliance solely on the number of people permitted in each bedroom. Rather, it believes that in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit.

The following example is used in the memo. Consider two theoretical situations in which a housing provider refused to permit a family of five to rent a two-bedroom dwelling based on a “two people per bedroom” policy. In the first, the complainants are a family of five who applied to rent an apartment with two large bedrooms and spacious living areas. In the second, the complainants are a family of five who applied to rent a mobile home space on which they planned to live in a small two bedroom mobile home. Depending on the other facts, issuance of a charge of discrimination might be warranted in the first situation, but not in the second.

Another example involves the age of the children. The following hypotheticals involve two housing providers who refused to permit three people to share a bedroom . In the first, the complainants are two adult parents who applied to rent a one-bedroom apartment with their infant child, and both the bedroom and the apartment were large. In the second, the complainants are a family of two adult parents and one teenager who applied to rent a one-bedroom apartment. Depending on the other facts, issuance of a charge might be warranted in the first, but not in the second instance.

Other factors HUD will consider include the size of the bedrooms, the configuration of the unit (for example the presence of a den or small extra room), the overall size of the dwelling, capacity of septic, sewer or other building systems, existence of state or local laws, and any pretextual evidence of discrimination by the housing provider. It also states that an occupancy policy that limits the number of children in a unit is less reasonable than one which limits the number of people in a unit.

The information in this article was taken directly from the HUD guidance memo on occupancy standards and is now standard practice on how to deal with occupancy issues.

You can read The Keating Memo in its entirety online.

New Construction Accessibility Guidelines

In regards to accessibility for persons with disabilities, the Fair Housing Act (FHA) should not be confused with the Americans with Disabilities Act (ADA).

The ADA covers public accommodations, for example: movie theaters, hotels, government buildings and restaurants. However, the FHA covers private housing. Many builders and developers believe that if they are meeting the guidelines of the ADA than they have fulfilled all their responsibilities. This is not necessarily true. The following information should help guide you in all the areas you must consider and research.

Under the FHA, the accessibility provisions apply to the following types of housing:

  • New buildings designed for first occupancy after March 13, 1991
  • All housing, including privately financed housing
  • Buildings with four or more units
  • All units in elevator buildings; ground floor units in non-elevator buildings
  • Single-story townhouses/patio homes
  • Timeshares; dormitories; homeless shelters
  • Existing buildings with additions of four or more units

Buildings covered by the law must comply with the following requirements:

  • The building entrance must be on an accessible route.
  • All public and common use areas of the building must be accessible.
  • All the doors must be designed sufficiently wide to allow passage by wheelchair users into and within the premises.
  • There must be an accessible route into and through the dwelling unit.
  • Light switches and other environmental controls must be located in accessible locations.
  • Reinforcements in bathroom walls are required to allow later installation of grab bars.
  • Kitchen and bathrooms must be designed so that an individual in a wheelchair can maneuver about the space.

Generally, the ADA does not apply to residential housing. However, certain ADA issues arise with the accessibility of common use areas in residential developments if the facilities are open to persons other than owners, residents, and their guests. Examples include: sales and rental offices, sales areas in model homes, pools and clubs open to the general public, and reception rooms that can be rented to non-residents.

When determining what laws apply to your building, it is important to remember that many codes, federal, state and local, may cover your building. In order to avoid confusion regarding which accessibility standards apply to multi-family and other residential projects, architects, builders and developers should remember the following:

  • Don’t count on having just one code or law apply.
  • If there is a conflict between codes and laws, the most stringent design and technical requirements generally apply.
  • Local governments are not responsible for interpreting or enforcing the ADA, FHA or other federal accessibility requirements. Their building departments and inspectors only enforce state and local accessibility codes or laws.
  • Architects and builders are still responsible for following all applicable federal and state laws.
  • A building permit or certificate of occupancy from a local government does not shield a builder from enforcement action under federal laws.

For more information on the Pennsylvania state building accessibility requirements, contact Jim Varhola a member of the PA Accessibility Advisory Board with the PA Department of Labor & Industry Affairs at (717) 787-3329.

For a copy of The Fair Housing Act Design Manual

A Manual to Assist Designers and Builders in Meeting the Accessibility Requirements of the Fair Housing Act, published by the U.S. Department of Housing and Urban Development (HUD) Office of Fair Housing and Equal Opportunity, contact the HUD Distribution Center at (800) 767-7468. Request a copy of publication HUD-1733-FHEO Revised April 1998.

You can read the guidelines for accessibility as published in the federal register online.

For more information about design and construction requirements under the Fair Housing Act, please visit Fair Housing Accessibility First

Rental Housing & Lead Based Paint

Children under the age of six are particularly vulnerable to lead poisoning both because they are more likely to ingest lead in housing situations and because ingested lead can adversely affect the development of children’s brains, central nervous systems, and other organ systems. Recent studies have shown that simply breathing dust particles that are in the air because of the opening and closing of lead-based painted windows can be just as hazardous as the “ingestion” of lead paint. The importance of this issue has raised questions concerning lead-based paint and the requirements of the Fair Housing Act to rent to families with children.

So what is a housing provider’s responsibility regarding this issue?

First, it is illegal under the Fair Housing Act to not rent to families with children, unless the landlord is otherwise exempt for instance, as housing for older persons. Case law has stated that a landlord cannot discourage a potential tenant or determine for them that a property is safe or unsafe for their children. Examples include: steep stairways, steep balconies, busy streets and the presence of dangerous equipment. Case law has determined that it is up to the parent to determine if a situation is appropriate for their children, not for the landlord to make that determination for them. The presence of lead based paint is a similar situation.

If a unit has not undergone lead hazard control treatments, the housing provider must advise the family of the condition of the unit (see section 1018 of the Residential Lead-Based Paint Hazard Reduction Act of 1992), but may not decline to allow the family to occupy the unit because the family has children. It would also violate the Fair Housing Act for a housing provider to seek to terminate the tenancy of a family residing in a unit where lead-based paint hazards have not been controlled against the family’s wishes because of the presence of children in the household.

A housing provider may affirmatively market units where lead-based paint hazards have been removed to families with children. In addition, if a landlord has removed the lead-based paint hazards from certain apartments, those apartments can be set-aside specifically for families with children. It is recommended that if the housing provider plans to use this method, that the units chosen for lead-based paint removal be distributed throughout the complex and not segregated to one building or area of the complex.

You can read the HUD guidance memo regarding lead based paint online.

The Housing for Older Persons Act

The Fair Housing Act exempts “housing for older persons” from the Act’s prohibition of discrimination against families with children in two categories: 100% of the occupants must be 62 years of age or older or 80% of the occupied units must be occupied by at least one person who is 55 or older. The new requirements under HOPA are equivalent to the original provisions of the Fair Housing Act regarding the age categories. HOPA also requires that a facility or community seeking to claim the 55 and older exemption show the following two factors: (1) that the housing be intended and operated for persons 55 years of age or older; and (2) the housing facility or community publish and adhere to policies and procedures that demonstrate its intent to qualify for the exemption. The housing facility or community must also comply with rules issued by HUD for the verification of occupancy.

One major change made by HOPA was the elimination of “significant facilities and services” previously required by the Act to meet the 55 and older exemption. The Act originally required that housing designed for persons 55 years of age or older provide “significant facilities and services specifically designed to meet the physical or social needs of older persons.” This requirement has now been eliminated from the law.

HOPA also added the new requirement that a housing facility or community seeking the 55 and older exemption comply with HUD regulations on verification of occupancy. This should be performed through reliable survey, affidavit or other documentation of the individual’s choosing, a copy of which should be retained for record keeping purposes, which confirms that the 80% threshold is being met. A self-certification of his or her age by an individual will be adequate to meet this standard. Copies of information gathered in support of the occupancy verification may be kept in a separate file with limited access, created for the sole purpose of complying with HOPA and should be reviewed and updated every 2 years.

In regards to the housing facility or community publishing and adhering to policies and procedures that demonstrate its intent to qualify for the 55 and older exemption, the regulations state that simply publishing that this is an “adult community” is not sufficient to meet this standard. Clear policies and procedures must be published and adhered to. When advertising, the guidelines state that the best practice is to refer to such housing as “Senior Housing” or “A 55 and older community” or “retirement community” and discourages the use of the term “adult housing” or similar language. While the use of adult housing or similar phrases, standing alone, do not destroy the intent requirement of HOPA, they regulations state that they send a clear message which is inconsistent with the intent to be housing for older persons. If a community or facility has clearly shown its intent in other ways, and clearly meets the 80% requirement, then the intent requirement has been met even if the phrase “adult” or similar terminology is occasionally used. However, a community that describes itself as “adult”, leaves itself vulnerable to complaints about its eligibility for the exemption, which could result in an investigation or litigation to determine whether the community in fact qualifies for the exemption.

You can read the HOPA guidelines in their entirety online.

Conversion to Housing for Older Persons Under the Fair Housing Act

The Fair Housing Act exempts “housing for older persons” from the Act’s prohibition of discrimination against families with children in two categories: 100% of the occupants must be 62 years of age or older or 80% of the occupied units must be occupied by at least one person who is 55 or older. The Fair Housing Council occasionally receives questions from housing providers concerning whether it is legal to convert an existing community to housing for older persons under the Fair Housing Act. Recently, the U. S. Department of Housing and Urban Development (HUD) issued a memo clarifying this issue. According to the memo:

The Fair Housing Act (the Act) and the Housing for Older Persons Act of 1995 (HOPA) amending it, excludes from the Act’s prohibitions against familial status discrimination communities and facilities that have met certain conditions demonstrating an affirmative intent to provide housing for older persons.

A question has arisen regarding whether an existing community or facility can become housing for older persons after May 3,2000, the expiration date of the transition period provided for in HIID’S HOPA regulations, 24 CFR § 100.305(e).

The Department’s HOPA regulations established a transition period to provide a mechanism for communities or facilities to become housing for older persons, if they had abandoned or did not achieve such status before HOPA. The transition period allowed a community or facility that did not yet meet all of the HOPA requirements to deny housing to families with children in order to get 80 percent of its units filled by at least one person 55 or older. During the transition period, if a housing facility or community demonstrated an intent to be housing for older persons and adopted age verification procedures, it could reserve all unoccupied units for occupancy by at least one person 55 or older. If an eligible family with children wanted to occupy a vacant unit during the transition period, a community or facility that had not yet met the 80 percent threshold could have legally refused to admit the family. However, at the end of the transition period, any community that failed to have 80 percent of its units occupied by at least one person at least 55 years of age had to cease reserving unoccupied units for persons over 55 years of age and could no longer discriminate against families with children.

This memorandum provides clarification on how communities that did not convert to “housing for older persons” by May 3, 2000, can become housing for older persons. There are two ways to establish housing for older persons after the transition period: conversion and new construction.

First, an existing community or facility can convert to “housing for older persons” if 80 percent of its occupied units become occupied by at least one person 55 years of age or older. Unlike during the transition period, housing providers cannot discriminate against families with children in order to achieve 80 percent occupancy by persons 55 or older. In other words, a community or facility cannot reserve unoccupied units for persons 55 or older, advertise itself as housing for older persons, or evict families with children in order to reach the 80 percent threshold. If a family with children seeks to occupy a vacant unit in an existing facility before it has met all of the requirements necessary to become housing for older persons, the community or facility must permit the family to live there. Additionally, the facility may not make existing families with children feel unwelcome or otherwise encourage those families to move. While the facility or community may not take any measures deliberately designed to discourage families with children from continuing to reside in the community, nothing prevents the offering of positive incentives that might lead some families to seek housing elsewhere. If the community or facility achieves the 80 percent threshold, without discriminating against families with children, it may then publish and adhere to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older and comply with verification of occupancy rules. The facility or community cannot publish such policies or procedures in advance of meeting the 80 percent threshold (without discrimination) as such policies and procedures would have a chilling impact upon potential applicants or current occupants who are families with children.

A second way to establish housing for older persons is to construct a new housing community or facility and meet the three requirements set forth in HOPA: (1) 80 percent of the occupied units are occupied by at least one person 55 years of age or older; (2) the housing community or facility publishes and adheres to policies and procedures that demonstrate an intent to provide housing for persons 55 years or older; and (3) the community or facility complies with rules issued by the Secretary for verification of occupancy through reliable surveys and affidavits. Newly-constructed housing includes a facility or community that has been entirely unoccupied for at least 90 days prior to re-occupancy, due to renovation or rehabilitation. Newly-constructed housing is permitted to discriminate against families with children until 25 percent of its units are occupied. If, at that time, the housing community or facility does not have a resident 55 years or older in at least 80 percent of occupied units, then the community or facility may not discriminate against families with children.

The information in this article was taken directly from the HUD memo on conversion to housing for older persons under the Fair Housing Act. You can read the original memo here (PDF).

HUD and DOJ Issue Joint Statement Clarifying Reasonable Accommodations Under the Fair Housing Act

The portion of the Fair Housing Act that protects persons with disabilities often causes the most confusion for both consumers and housing providers. The Fair Housing Council of Suburban Philadelphia receives numerous phone calls from disabled home seekers wanting to know about their rights and from housing providers unsure about their responsibilities under the law. While most people understand the basics of the Fair Housing Act, such as the fact that housing providers cannot deny housing to members of protected classes, the issue of reasonable accommodations for people with disabilities is much more complicated. Due to confusion surrounding this issue, the Department of Housing and Urban Development and the Department of Justice have issued a joint statement clarifying reasonable accommodations under the Fair Housing Act.

The joint statement clarifies housing providers’ responsibilities under the Fair Housing Act as it relates to people with disabilities, provides examples of situations that housing providers may face in dealing with disabled consumers, and answers the following questions:

  • What types of discrimination against persons with disabilities does the Act prohibit?
  • Who must comply with the Fair Housing Act’s reasonable accommodation requirements?
  • Who qualifies as a person with a disability under the Act?
  • Does the Act protect juvenile offenders, sex offenders, persons who illegally use controlled substances, and persons with disabilities who pose a significant danger to others?
  • How can a housing provider determine if an individual poses a direct threat?
  • What is a “reasonable accommodation” for purposes of the Act?
  • Are there any instances when a housing provider can deny a request for a reasonable accommodation without violating the Act?
  • What is a “fundamental alteration”?
  • What happens if providing a reasonable accommodation involves some costs on the part of the housing provider?
  • What happens if no agreement can be reached through interactive process?
  • May a housing provider charge an extra fee or require an extra deposit from applicants or residents with disabilities as a condition of granting a reasonable accommodation?
  • When and how should an individual request and accommodation?
  • Must a housing provider adopt formal procedures for processing requests for a reasonable accommodation?
  • Is a housing provider obligated to provide a reasonable accommodation to a resident or applicant if an accommodation has not been requested?
  • What if a housing provider fails to act promptly on a reasonable accommodation request?
  • What inquiries, if any, may a housing provider make of current or potential residents regarding the existence of a disability when they have not asked for an accommodation?
  • What kinds of information, if any, may a housing provider request from a person with an obvious or known disability who is requesting a reasonable accommodation?
  • If a disability is not obvious, what kinds of information may a housing provider request from the person with a disability in support of a requested accommodation?

The Reasonable Accommodation: HUD and DOJ Joint Statement is available in PDF format here.

Filing a Complaint

How do I file a complaint alleging housing discrimination?

If you believe your Fair Housing rights have been violated, you can:

  • Contact the Fair Housing Center of Lancaster at (717) 291-9945 as soon as possible to investigate your complaint and assist you in determining what action should be taken.
  • You may file a complaint with the U.S. Department of Housing and Urban Development (HUD) within one year of the discriminatory incident. You can file a complaint online with HUD.
  • You may hire a private attorney and file an action in federal court within two years of the discriminatory incident.

Note: If you are able to prove that you have been a victim of discrimination you may be entitled to receive compensation for actual damages, including humiliation, pain and suffering, and other relief. In federal court you may also receive punitive damages. If you are successful, the person who discriminated against you must pay your attorney’s fees.

Insurance

This memorandum responds to requests for guidance on how HUD investigators should examine Fair Housing Act “reasonable accommodation” cases where a housing provider cites an insurance policy restriction in denying a request from a person with a disability to reside in a dwelling with an assistance animal that is of a breed of dog that the landlord’s insurance carrier considers dangerous.

Read the full memo in PDF format here.

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Contact Information

Street Address:
123 East King Street
Lancaster, PA 17602

Phone/Fax:
(717) 291-9945
(717) 299-7840 for Fair Housing Center
(717) 291-9850 Fax

LHOP is a proud member of:
The Building Industry Association of Lancaster County
The Housing Alliance of Pennsylvania
The Lancaster Chamber of Commerce and Industry
National Fair Housing Alliance