Fair Housing Implications of Nuisance and Crime-Free Ordinances:

State of Illinois

Illinois Department of Human Rights

Fair Housing Implications of Nuisance

and Crime-Free Ordinances:

A Guide for Units of Local Government

The Illinois Department of Human Rights

(IDHR) enforces the Illinois Human Rights

Act, which prohibits discrimination in

Illinois. IDHR’s mission is to secure for

all individuals within the State of Illinois

freedom from unlawful discrimination,

and to establish and promote equal

opportunity and afrmative action for all

its residents.

dhr.illinois.gov

The UIC Law School Fair Housing Legal

Support Center and Clinic is dedicated to

educating the public about fair housing

law. It provides legal assistance to

organizations seeking to eliminate

discriminatory housing practices and

trains students in fair housing law to

represent victims of discrimination in

court and before administrative agencies.

Law.uic.edu

This Guidebook provides general information to units of local government in Illinois

concerning the fair housing implications of nuisance and crime-free ordinances as well as

other practices that penalize housing providers and tenants for alleged criminal activity.

This Guidebook may not be appropriate in all situations and is not a substitute for legal

advice. This area of law is in development, so it is recommended that local governments

consult their attorneys for further information on the issues discussed in this Guidebook.

While written for local government ofcials, this Guidebook may be helpful to property

owners, housing managers, condominium associations, and other homeowner

associations.

Funding under a Cooperative Agreement with HUD supported the work that provided

the basis for this publication and, as such, the substance and ndings of the work are for

public use. This Guidebook was developed by the Illinois Department of Human Rights in

partnership with the UIC Fair Housing Legal Support Center and Clinic.

The authors and publishers are solely responsible for the accuracy of the statements

and interpretations contained in this publication. Such interpretations do not necessarily

reect the views of the government or bind the government or agency in any proceeding.

Contributors:

Steven Monroy, Director of Fair Housing, Illinois Department of Human Rights

Oral R. Bennett, Chief Litigation Attorney for Housing, Illinois Department of Human Rights

Michael A. Vernon, Staff Attorney, Illinois Department of Human Rights

Michael P. Seng, Professor and Director, UIC Fair Housing Legal Support Center

Allison K. Bethel, Clinical Professor and Director, UIC Fair Housing Legal Clinic

Additional Contributors: Farizma Ali, Patrick Hogan, and Jacquelin Nunez, UIC law students

Contents

Section 1 – Introduction ....................................................................................................... 4

Section 2 – Nuisance and Crime-Free Ordinances .......................................................................... 6

A. Nuisance Ordinances .......................................................................................................... 6

B. Crime-Free Housing Ordinances ...................................................................................... 7

Section 3 – Fair Housing and Anti-Discrimination Laws ................................................................. 9

A. Illinois Human Rights Act .................................................................................................. 9

B. Illinois Civil Rights Act ..................................................................................................... 10

C. Illinois Counties Code and Illinois Municipal Code ......................................................... 10

D. Local Human Rights Ordinances .................................................................................... 11

E. Federal Fair Housing Act ..................................................................................................... 12

Section 4 – Legal Theories of Discrimination Under

the Illinois Human Rights Act and Fair Housing Act ..................................................................... 13

A. Disparate Treatment (Purposeful Discrimination) ................................................................ 13

B. Disparate Impact (Neutral Policy, Discriminates When Applied) .......................................... 14

Section 5 – Civil Rights Concerns Regarding the Application of

Nuisance and Crime-Free Housing Ordinances ................................................................................ 15

A. Civil Rights Protections for Those with Arrest or Conviction Records .................................. 16

B. Civil Rights Protections for Victims of Domestic Violence ................................................... 17

1. Illinois Public Act 99-441 .................................................................................................. 19

2. Sex and Order of Protection Status Discrimination ....................................................... 20

C. Civil Rights Protections for People with Disabilities .............................................................. 21

Section 6 – Best Practices for Local Government Leaders ............................................................... 23

Section 7 – Legal Remedies for Unlawful Discrimination ............................................................... 25

Section 8 – Appendices ...................................................................................................................... 27

Resources ........................................................................................................................................... 28

Section 1

Introduction

We must all work together to create and protect safe and fair housing for all people in

Illinois. Accordingly, local governments should ensure that public safety policies do not

discriminate against or deter individuals from seeking police services. Ensuring both public

safety and fair housing can be difcult and requires thoughtful consideration of the impacts

of policies, practices, and laws.

Beginning in the 1990’s, numerous local governments enacted nuisance and crime-free

ordinances with the stated goal of responding to concerns about criminal activity in rental

housing, particularly drug activity.

These policies effectively forced housing providers to

partner with law enforcement by requiring them to take adverse housing actions against

tenants, up to and including eviction, for alleged criminal activity or risk having the property

classied as a nuisance, with associated penalties.

This Guidebook uses the following words interchangeably for ease of

reading:

In reference to local government: policy, ordinance, regulation, and rule.

In reference to housing providers: housing providers, landlords,

property managers, owners, homeowners’ associations, condominium

associations, real estate brokers, and agents.

Deborah N. Archer, ‘Crime-Free’ Housing Ordinances, Explained, The Appeal, Feb. 17, 2021,

https://theappeal.org/the-lab/explainers/crime-free-housing-ordinances-explained/.

Section 1-Introduction

Federal, state, and local fair housing laws prohibit discrimination in both private and public

residential housing based on race, color, religion, national origin, sex (including sexual

orientation and gender identity), disability, and familial status.

State and local fair housing

laws include additional protected factors.

Nuisance and crime-free ordinances are unlawful if they discriminate based on characteristics

protected under fair housing laws or if they are applied unequally. Even when the policies

are neutral and evenly applied, they may still disproportionately impact protected groups.

The purpose of this Guidebook is to assist local ofcials in navigating the challenges of

distinguishing between legitimate efforts to protect the public from crime and efforts that

perpetuate unlawful discrimination and unfairly prevent individuals from securing one of

the most basic of human needs, shelter. Discernment is important not only to protect local

governments, public ofcials, and housing providers from liability but also to safeguard

compliance with fair housing civil rights laws.

See Fair Housing Act, 42 U.S.C. §§ 3601 – 3619.

Section 2

Nuisance and Crime-Free Ordinances

A. Nuisance Ordinances

Many municipalities and some counties have enacted general nuisance ordinances to

address a variety of disruptive conduct including, but not limited to, criminal activity at rental

properties.

Nuisance was traditionally recognized under common law as an unreasonable interference

with the use and enjoyment of property.

Common law nuisance and general nuisance laws

are still used today to address a variety of disturbances. Also, many leases and governing

documents for condominiums, homeowner associations, and co-ops contain express or

implied general nuisance provisions that may be used to address offensive conduct.

Examples of Nuisance Ordinances

• Ordinances that penalize housing providers and/or tenants for an excessive

number of calls for police service from a property or about a property.

• Ordinances that use a point system for proscribed conduct and provide

that if a property accumulates a certain number of points within a 12-month

period, the property is considered a public nuisance.

• Ordinances that penalize property owners when two or more perceived

violations of any laws occur near the property or involve a tenant of the

property within a one-year period.

Nuisance, Black’s Law Dictionary (11th ed. 2019).

Enforcement of nuisance ordinances, leases, contracts, and/or common law claims has

been problematic because they are often overbroad, vague, and impact the most vulnerable

residents. They have been used to stop people, especially people of color, from soliciting,

proselytizing, or congregating. Advocates charge that such policies criminalize poverty as

people cannot pay the associated nes and end up with criminal records that follow them for

life for being unable to pay the nes.

As shown throughout this Guidebook, not only can nuisance ordinances conict with basic

constitutional rights, but they can also have a serious and unlawful impact on fair housing

rights.

B. Crime-Free Housing Ordinances

Crime-free housing ordinances are a recently developed type of nuisance ordinance. In the

early 1990s, the rst crime-free ordinances emerged as a law enforcement tool to police crime

in rental housing. Early models were created by the International Crime Free Association

(“ICFA”), an organization founded in 1992 by the Mesa Arizona Police Department.

Crime-free housing programs are formal partnerships between cities and housing providers.

The programs’ stated goal is to reduce crime rates around residential rental properties. These

programs often require housing providers to evict tenants that are deemed connected to

crimes. Property owners may be required to incorporate an addendum into a tenant’s lease

stating that the tenant will refrain from engaging in any form of criminal activity. Housing

providers are also required to attend seminars held by the local police on crime-free housing.

At these seminars, housing providers are introduced to crime-prevention techniques as well

as information on how to screen and evict tenants that the police believe may be engaged in

criminal activity.

Section 2-Nuisance and Crime-Free Ordinances

Examples of Crime-free Housing Ordinances

• Ordinances that require landlords to secure a rental license and threaten

the loss of that license if the landlord does not conduct background checks

on all tenants.

• Ordinances that require landlords to evict any tenant that is alleged to

have engaged in criminal activity on or near the premises.

• Ordinances that require landlords to incorporate an addendum to leases

that prohibits a resident, household member, or guest from engaging in acts

of violence or threats of violence, such as the unlawful discharge of rearms

on the premises.

Int’l Crime Free Ass’n, “Crime Free Programs,” available at www.crime-free-association.org/index.html (Crime Free Multi-

Housing Program started in 1992 in Mesa AZ, when Tim Zehring of the Mesa Police Department was tasked to design a safety

program that would work in rental housing).

Section 2-Nuisance and Crime-Free Ordinances

Crime-free ordinances require housing providers to deny housing, evict, ne, or penalize

tenants for their connection to specic crimes or “criminal activity” in general. They are often

broadly written to prohibit activities such as arrests or calls for police service.

These ordinances may conict with federal, state, and even local anti-discrimination laws.

By using police contact as a trigger, these ordinances can introduce the biases of the

criminal justice system into the housing market and run the risk of furthering segregation

and undermining fair housing responsibilities. Segregated housing patterns often facilitate

over-policing so that communities of color are more likely to have repeated interactions with

police. Additionally, because a higher percentage of racial minorities in Illinois are renters

compared to white residents, nuisance and crime-free ordinances may have an unlawful

disparate impact.

Section 3

Fair Housing and Anti-Discrimination Laws

A. Illinois Human Rights Act

The Illinois Human Rights Act (“IHRA”)

prohibits discrimination in real estate transactions.

Real estate transactions include, but are not limited to, housing sales, rentals, broker services,

appraisals, mortgage loans, and other nancial assistance related to housing. The IHRA is

enforceable against individuals, businesses, government entities, and other groups.

The IHRA prohibits unlawful discrimination in real estate transactions based on:

• Race

• Color

• Ancestry

• National Origin

• Religion

• Disability

• Sex

• Sexual Orientation

• Marital Status

• Pregnancy

• Familial Status (families

with children under 18

years old)

• Order of Protection

Status

• Age

• Arrest Record

• Military Status

• Unfavorable

Discharge from

Military Service

• Source of Income

The IHRA provides broader protected characteristics than the federal Fair Housing Act (“FHA”).

The IHRA can be enforced both administratively through the Illinois Department of Human

Rights (“IDHR”) and in the courts. The IHRA also gives the Illinois Attorney General the

authority to enforce the IHRA where a covered entity engages in a pattern or practice of

discrimination. The Illinois Attorney General can independently initiate an investigation into

housing civil rights violations and le a lawsuit on behalf of the People of the State of Illinois.

Remedies for IHRA violations can include injunctions forbidding future violations, other

afrmative relief to remove the effects of the unlawful actions or policies, compensatory and

punitive damages, and payment for the complainant’s attorneys’ fees.

Notably, the IHRA provides that a housing provider is prohibited from considering a person’s

arrest record when engaging in a real estate transaction. The IHRA denes “arrest record” as

an arrest not leading to a conviction, a juvenile record, or criminal history record information

ordered expunged, sealed, or impounded.

A unit of government that enacts a nuisance or crime-free ordinance that subjects or has

the effect of subjecting a person to discrimination in a real estate transaction based on the

person’s protected characteristics may be found in violation of the Illinois Human Rights Act.

Illinois Human Rights Act, 775 ILCS 5/1-101 et seq.

Illinois Human Rights Act, 775 ILCS 5/3-1-103 (B-5).

Section 3-Fair Housing and Anti-Discrimination Laws

B. Illinois Civil Rights Act

The Illinois Civil Rights Act prohibits the State or a local government from discriminating

against an individual based on race, color, national origin, or gender and from using “criteria

or methods of administration that have the effect of subjecting [the person to discrimination]

because of their race, color, national origin, or gender.”

An aggrieved individual may bring a civil lawsuit in federal or state court against the offending

unit of government. The Illinois Attorney General can independently investigate civil rights

violations and le a lawsuit on behalf of the People of the State of Illinois.

A unit of government that enacts a nuisance or crime-free ordinance that subjects or has the

effect of subjecting a person to discrimination based on the person’s race, color, national

origin, or gender in housing may be found in violation of the Illinois Civil Rights Act.

C. Illinois Counties Code and Illinois Municipal Code

The Illinois Counties Code

and the Illinois Municipal Code

prohibit county and municipal

governments from enacting or enforcing ordinances or regulations that penalize tenants

or housing providers for contacting emergency services concerning incidents related to

domestic or sexual violence or for calls related to an individual’s disability.

A unit of government that enacts a nuisance or crime-free ordinance that penalizes or has the

effect of penalizing tenants or housing providers for contacting emergency services concerning

incidents related to domestic or sexual violence or for calls related to an individual’s disability

may be found in violation of the Illinois Counties Code and the Illinois Municipal Code.

Illinois Civil Rights Act, 740 ILCS 23/5(a).

Counties Code, 55 ILCS 5/5-1005.10.

Illinois Municipal Code, 65 ILCS 5/1-2-1.5.

Section 3-Fair Housing and Anti-Discrimination Laws

D. Local Human Rights Ordinances

Many counties and municipalities in Illinois have their own human rights ordinances and

human rights agencies to investigate and enforce those ordinances. Some of these local

ordinances provide protections broader than the IHRA and FHA.

Example of local human rights ordinances include:

• The Cook County Human Rights Ordinance generally prohibits housing providers from

considering a criminal conviction that is more than three years old. It also requires an

individualized assessment before housing is denied based on a criminal conviction that is

less than three years old, to determine whether the denial is necessary to protect against

a demonstrable risk to personal safety or property.

• The City of Champaign Human Rights Ordinance specically includes persons with

“prior arrest or conviction records” as a protected class. A landlord is permitted to deny

housing to persons who have been convicted of a forcible felony or a felony for the sale,

manufacture, or distribution of illegal drugs, but only if the convicted person has not been

out of prison for at least the last two consecutive years without further convictions for

those felonies.

• The City of Urbana Human Rights Ordinance specically includes persons with “prior

arrest or conviction records” as a protected class.

Local governments should be aware that in enforcing nuisance or crime-free housing

ordinances they may be in violation of their own human rights ordinances. Additionally,

municipal nuisance or crime-free housing ordinances may have unlawful effects under

the parent county’s ordinances.

Cook County, Ill., Ord. No. 19-2394 (April 2021).

City of Champaign, Ill., Municipal Code, Ch. 17 § 4.5 (2022).

City of Urbana, Ill., City Code, Ch. 12 § 39 (2022).

Section 3-Fair Housing and Anti-Discrimination Laws

E. Federal Fair Housing Act

The Fair Housing Act (“FHA”) was passed by Congress in 1968 and

generally prohibits discrimination in residential housing, including vacant

land intended for residential housing.

The FHA has exceptions: excluded

entities include owner-occupied buildings of four or fewer units and

single-family homes sold by the owner without the assistance of a broker

or agent.

Even if a property is mostly exempt from the FHA, the housing provider is still

prohibited from making any statement or advertisement that discriminates based on

protected traits.

The FHA prohibits discrimination in housing based on:

• Race • Color • Religion • National Origin

• Sex (including sexual harassment, sexual orientation, and gender identity)

• Disability (a physical or mental impairment that substantially limits a major life

activity, a history of such an impairment, or a perception that one is impaired)

• Familial Status (a family with children under the age of 18)

The FHA is enforceable against both public and private entities or a person. Municipalities,

local ofcials, management companies, property owners, leasing agents, brokers, and even

neighbors can be named as a party in a fair housing complaint.

The FHA can be enforced both administratively through the U.S. Department of Housing and

Urban Development (“HUD”) and in the courts. The FHA also gives the U.S. Department of

Justice (“DOJ”) authority to enforce the FHA where a covered entity engages in a pattern or

practice of discrimination. The DOJ can independently le a lawsuit.

Remedies for FHA violations can include injunctions forbidding future violations, other

afrmative relief to remove the effects of the unlawful actions or policies, compensatory and

punitive damages, and payment for the complainant’s attorneys’ fees.

Afrmatively Furthering Fair Housing

Recipients of HUD funding must afrmatively further the policies and purposes

of the FHA by assessing their practices and taking meaningful actions to

remedy fair housing issues such as racially segregated neighborhoods, lack

of housing choice, and unequal access to housing.

Local governments are encouraged to review their ordinances for

discriminatory effects as part of their efforts to fulll their duty to afrmatively

further fair housing.

Fair Housing Act, 42 U.S.C. §3601 et seq.

Fair Housing Act, 42 U.S.C. §3603(b).

U.S. Dep’t of Hous. & Urb. Dev., Afrmatively Furthering Fair Housing, https://www.hud.gov/AFFH.

Section 4

Legal Theories of Discrimination

Under the Illinois Human Rights Act and Fair Housing Act

A. Disparate Treatment (Purposeful Discrimination)

The IHRA and FHA both prohibit housing discrimination based on race, color, religion, sex

(including sexual orientation and gender identity), familial status, national origin, or disability.

The IHRA additionally prohibits discrimination based on arrest records, order of protection

status, and several other protected categories.

An ordinance that explicitly applies only to persons with protected characteristics, or that is

applied in a discriminatory manner, violates the IHRA and/or the FHA.

Examples of ordinances that only apply to persons with protected characteristic may include:

• An ordinance stating that families with children under the age of eighteen who are found

delinquent by a juvenile court are ineligible for housing (familial status discrimination

and arrest record discrimination);

• An ordinance stating that a person with a disability who calls emergency services or the

police for aid more than two times in a six-month period when having an incident relating

to their disability shall be evicted (disability discrimination);

• An ordinance stating that, upon arrest or allegation of criminal activity by a guest or

household member, the entire household must be evicted (arrest record discrimination).

Purposeful discrimination may be shown through legislative or administrative history,

historical context, the sequence of events, departures from normal procedures, and other

circumstances leading to the enactment of the ordinance.

Examples of ordinances that are enacted for a discriminatory purpose may include:

• A city council rushes to pass a nuisance or crime-free ordinance in reaction to an incident

that created fears that people of color may stage protests that could result in disorder or

possible violence;

• A town that has traditionally enforced a sunset policy against African Americans enacts a

nuisance or crime-free ordinance when Black residents from Chicago who hold subsidized

housing vouchers start moving to the area.

Section 4-Legal Theories of Discrimination

Under the Illinois Human Rights Act and Fair Housing Act

B. Disparate Impact (Neutral Policy, Discriminates When Applied)

Disparate impact on a group with protected characteristics is another way to show

discrimination under the IHRA and FHA.

Disparate impact occurs when a regulation,

ordinance, or law is neutral on its face but in practice has a discriminatory effect upon a

protected group. It is generally shown through statistical analysis.

Examples of disparate impact discrimination may include:

• An ordinance that states that victims of domestic violence who call the police more than

three times in any one year shall be evicted.

• A predominately white village enacts a crime-free ordinance stating that no one with a

criminal record can live in the village. If a disproportionately large percentage of persons

with criminal records are persons of color, then the crime-free ordinance could have a

disparate impact on persons of color by preventing them from living in the village.

• Zoning and land use regulations that exclude low or moderate-income housing and that

have a disparate effect on persons of color, women with children, or people with disabilities.

• Zoning against multifamily dwellings that exclude group homes or treatment centers

designed to assist people with disabilities.

• A no parking policy that prevents persons who are mobility impaired from accessing their

housing units.

A defense to an allegation of disparate impact is that the challenged practice is necessary to

achieve one or more substantial, legitimate, nondiscriminatory interests of the municipality

or locality and there is no other practice that has a less discriminatory effect.

Facially neutral nuisance and crime-free housing laws require caution during

enforcement due to a potential for disparate impact on people with disabilities.

For some individuals with disabilities, manifestations of their disabilities may

greatly affect their ability to comply with nuisance laws. This generates a risk

of bringing these individuals into more frequent contact with law enforcement

agencies executing these laws, leading to the laws disproportionately affecting

groups of individuals with certain disabilities.

Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015); 86

FR 33590 (Implementation of the Fair Housing Act’s Discriminatory Effects Standard).

Section 5

Civil Rights Concerns Regarding the Application of

Nuisance and Crime-Free Housing Ordinances

Nuisance and crime-free housing ordinances generally require housing providers to evict

or take other action against tenants based on alleged criminal activity at the property. Such

ordinances may also require housing providers to conduct a criminal background investigation

of applicants or tenants. These ordinances generally allow or require the housing provider to

terminate the lease and evict tenants after one incident of alleged criminal activity. Following

multiple incidents of criminal activity, the housing provider may be subject to nes, loss of

rental permits, and other penalties.

Nuisance and crime-free housing ordinances may place housing providers in situations

where they are at risk of violating state and federal laws that prohibit discrimination against

individuals with arrest or conviction records, survivors of domestic violence, individuals with

disabilities, and other members of protected classes. Housing providers should be mindful

that generally, compliance with local ordinances is not a defense against violations of state

and federal law.

Arrests Without Convictions Do Not Prove Criminal Activity

A housing provider is prohibited from discriminating against a person for

having an arrest on their record without proof that the person was convicted.

Nuisance ordinances may violate fair housing laws if they require housing

providers to evict tenants for mere alleged criminal activity. Crime-free housing

ordinances may cause discrimination if they require housing providers to

conduct criminal background checks without providing safeguards to ensure

that housing providers do not discriminate based on mere allegations or

arrests.

Constitutional Issues

Some nuisance and crime-free housing ordinances may also violate rights

guaranteed by the Illinois and United States Constitutions. Ordinances may

violate due process rights if they fail to provide adequate notice of what

will be considered “criminal activity” or if they do not provide procedural

safeguards (like notice and a hearing) before penalizing housing providers or

tenants.

Ordinances that penalize individuals for calling the police may

violate the First Amendment right to petition the government for a redress

of grievances.

See Ill. Const. art. II.; U.S. Const. amend. XIV, § 1.

See U.S. Const. amend. I.

Section 5-Civil Rights Concerns Regarding the Application of

Nuisance and Crime-Free Housing Ordinances

A. Civil Rights Protections for Those with Arrest Records

The IHRA prohibits discrimination based on arrest records if the arrest did not result in a

conviction, was considered a juvenile record, or if the arrest record was ordered expunged,

sealed, or impounded under Illinois law.

For example, a housing provider would violate the

IHRA by refusing to rent, or offering unequal terms, to a person because they had a juvenile

record. Ordinances that require criminal background checks or crime-free lease addenda to

lease agreements may force housing providers to unlawfully discriminate against persons

with arrest records protected under the IHRA.

Ordinances that do not require a criminal conviction present a heightened risk of enabling

IHRA violations. HUD recognizes that arrests, unlike convictions, do not prove that a person

engaged in criminal activity – merely that “someone probably suspected the person

apprehended of an offense.”

Arrest records are often incomplete and do not indicate whether

the person was charged, prosecuted, or convicted.

Illinois courts have similarly recognized

that arrests alone do not establish criminal activity.

775 ILCS 5/3-102; See also 775 ILCS 5/1-103 (dening the term Arrest Record).

U.S. Dep’t of Hous. & Urb. Dev., Ofce of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of

Criminal Records by Providers of Housing and Real Estate-Related Transactions 5 (Apr. 4, 2016), https://www.hud.gov/sites/docu-

ments/HUD_OGCGUIDAPPFHASTANDCR.PDF.

Id. See, e.g., U.S. Dep’t of Justice, The Attorney General’s Report on Criminal History Background Checks at 3, 17 (June 2006),

available at http://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf (the FBI’s Interstate Identication Index system is miss-

ing nal disposition information for approximately 50 percent of its records”).

See Landers v. Chicago Housing Authority, 404 Ill. App. 3d 568, 936 N.E.2d 735 (1st Dist. 2010).

Section 5-Civil Rights Concerns Regarding the Application of

Nuisance and Crime-Free Housing Ordinances

Ordinances that penalize housing providers and tenants for alleged criminal activity prior to

conviction may cause premature and irreparable harm – particularly if the alleged violation

never results in a criminal conviction.

The prohibition on discrimination based on arrest records does not preclude a housing

provider from prohibiting tenants or guests from engaging in unlawful activity on the

premises.

In complying with local ordinances, housing providers must ensure they do not unlawfully

discriminate based on arrests that did not result in a conviction, were juvenile records, or

were expunged, sealed, or impounded.

Illinois Human Rights Act, 775 ILCS 5/3-102.5.

Section 5-Civil Rights Concerns Regarding the Application of

Nuisance and Crime-Free Housing Ordinances

B. Civil Rights Protections for Victims of Domestic Violence

Domestic violence may constitute the single greatest category of calls for service received by

police, at times accounting for more than 50% of all calls.

Nevertheless, victims are often

reluctant to report incidents of domestic violence before suffering frequent or severe abuse.

Victims may delay calling the police because they believe the abuse was a private matter,

fear retaliation, wish to protect the abuser, or believe that the police would not help them.

Nuisance and crime-free housing ordinances run the risk of further discouraging victims of

domestic violence from contacting the police because placing the call could lead to losing

their housing.

HUD warns that nuisance and crime-free housing ordinances may penalize tenants for

incidents of domestic violence “without regard to whether the resident is the victim

or the perpetrator of the domestic violence.”

For example, a property may be labeled a

nuisance after ‘excessive’ calls for police or emergency services. As discussed below, local

governments should be aware that such ordinances may violate civil rights protections for

victims of domestic violence, including specic protections under state law and protections

against discrimination based on sex and order of protection status.

Andrew R. Klein, National Inst. Of Justice, U.S. Dep’t. Of Justice, Practical Implications of Current Domestic Violence Research

1 (2009), https://www.ncjrs.gov/pdfles1/nij/225722.pdf.

U.S. Dep’t of Hous. & Urb. Dev., Ofce of General Counsel Guidance on Application of Fair Housing Act Standards to the Enforce-

ment of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence, Other Crime Victims, and Others

Who Require Police or Emergency Services 4 (September 2016) https://www.hud.gov/sites/documents/FINALNUISANCEORDGD-

NCE.PDF.

Andrew R. Klein, supra note 25, at 14.

U.S. Dep’t of Hous. & Urb. Dev., supra note 26, at 3.

Section 5-Civil Rights Concerns Regarding the Application of

Nuisance and Crime-Free Housing Ordinances

1. Illinois Public Act 99-441 (Illinois Counties and Municipal

Codes)

In 2015, Illinois enacted legislation to limit the effect of nuisance and crime-free housing

ordinances on victims of domestic violence and people with disabilities.

No municipality

or county may enact or enforce an ordinance that penalizes tenants or housing providers for:

• Police calls made to prevent or respond to domestic or sexual violence;

• Police calls made by, or on behalf of an individual with a disability when the purpose of

the call was related to that individual’s disability;

• Criminal activity on the premises directly relating to domestic violence or sexual violence

against a resident, household member, guest, or another party.

This law applies to all counties and municipalities as it expressly limits home rule authority.

If a county or municipality enacts or enforces an ordinance in the manner described above,

an affected resident or housing provider may bring a civil action for a court order invalidating

the ordinance, compensatory damages, attorneys’ fees, and other equitable relief.

Act of August 21, 2015, Pub. Act 99-0441.

55 ILCS 5/5-1005.10 (on county ordinances); 65 ILCS 5/1-2-1.5 (on municipal ordinances).

55 ILCS 5/5-1005.10(d); 65 ILCS 5/1-2-1.59(d).

55 ILCS 5/5-1005.10(c); 65 ILCS 5/1-2-1.59(c).

Section 5-Civil Rights Concerns Regarding the Application of

Nuisance and Crime-Free Housing Ordinances

2. Sex and Order of Protection Status Discrimination

Enforcement of nuisance and crime-free housing ordinances may cause unlawful

discrimination based on sex given that such ordinances often have a disparate impact on

women. Discrimination based on a person’s sex is prohibited under both the IHRA

and the

FHA,

as well as ICRA.

The adverse effects of nuisance ordinances often fall more heavily on

women, particularly in the context of domestic violence. A study of intimate partner violence

from 1994 to 2010 found that about 80% of victims were female.

A local government may nd itself in violation of the IHRA and FHA if it enacts or enforces a

nuisance or crime-free housing ordinance in a manner that results in discrimination based on

sex. Discrimination may be proved by evidence of the impact, historical background, or by

evidence of selective enforcement – for example, evidence that the ordinance causes housing

providers to evict female tenants shortly after incidents of domestic violence.

If the ordinance

or its enforcement is found to have a discriminatory effect, the local government has the

burden to prove that it is necessary to achieve a substantial, legitimate, nondiscriminatory

interest.

Nuisance and crime-free ordinances may also cause unlawful discrimination based on order

of protection status, which is prohibited under the IHRA.

This covers individuals protected

under an order of protection issued by a court in Illinois or another state.

Although not

explicitly protected under federal law, discrimination based on orders of protection may also

constitute unlawful sex discrimination.

Illinois Human Rights Act, 775 ILCS 5/3-102; See also 775 ILCS 5/3-101 (dening the term Sex).

Fair Housing Act, 42 U.S.C. §§ 3601-19.

740 ILCS 23/5.

See Susan Castalano, Bureau of Justice Statistics, U.S. Dep’t. Of Justice, Intimate Partner Violence, 1993–2010 1 (2015),

http://www.bjs.gov/content/pub/pdf/ipv9310.pdf.

Id. at 10 to 12.

U.S. Dep’t of Hous. & Urb. Dev., supra note 25, at 7 to 10.

Illinois Human Rights Act, 775 ILCS 5/3-102; 775 ILCS 5/3-101 (dening the Order of Protection Status).

Illinois Human Rights Act, 775 ILCS 5/3-101.

Violence Against Women Act, 34 U.S.C § 12491.

The Violence Against Women Act prohibits federally funded housing

providers from denying “assistance, tenancy, or occupancy rights

to housing” to tenants who were subjected to, or threatened with,

domestic violence, dating violence, sexual assault, or stalking by a

household member, guest, or any other person under the control of

the tenant.

Section 5-Civil Rights Concerns Regarding the Application of

Nuisance and Crime-Free Housing Ordinances

C. Civil Rights Protections for People with Disabilities

Nuisance and crime-free housing ordinances may pose civil rights concerns for people with

disabilities. Disability is a protected characteristic under both the IHRA

and the FHA.

Disability

comprises the single largest basis for IHRA complaints lled in Illinois.

Housing providers

are prohibited from refusing to rent or offering unequal terms to an individual based on the

individual’s disability or association with a person with a disability.

Housing providers must

make reasonable accommodations to their policies when such accommodation is necessary

to afford an individual with a disability full enjoyment of the property.

Reasonable accommodations to the requirements of nuisance or crime-free housing

ordinances may be necessary to allow a person with a disability the full enjoyment of the

property. Requests for accommodations are highly fact specic. Housing providers or local

governments receiving an accommodation request must engage in an interactive process

with the resident so that their interests can be balanced with the needs of the resident to

determine the reasonableness of the request.

Illinois Human Rights Act, 775 ILCS 5/3-101 et. seq.

Fair Housing Act, 42 U.S.C. §§ 3601-19.

In Fiscal Year 2021, the Illinois Department of Human Rights lled 278 charges, 80 related to mental disability

and 67 related to physical disability. Illinois Department of Human Rights, Annual Report Fiscal Year 2021,

available at https://dhr.illinois.gov/publications/annual-reports.html.

Illinois Human Rights Act, 775 ILCS 5/3-101 et. seq.

See Illinois Department of Human Rights, Reasonable Accommodations and Modications: A Guide for Housing Professionals,

available at https://dhr.illinois.gov/publications/ra-rmguidebook.html.

Section 5-Civil Rights Concerns Regarding the Application of

Nuisance and Crime-Free Housing Ordinances

Instances where a reasonable accommodation may be necessary include:

• A person with a mental disability and a criminal record for violent episodes associated

with his disability now consistently takes medication to prevent those episodes but is

denied housing due to safety concerns.

• A person who suffers from extreme anxiety attacks frequently telephones the police for

assistance and violates an ordinance restricting tenants to three calls per year.

• A residential treatment center for persons with mental disabilities seeks a permit to

operate in a residential neighborhood but the city denies the permit, citing a concern that

many of the likely tenants will have criminal histories.

Local governments must ensure that nuisance and crime-free ordinances do not

intentionally discriminate against, or have a disparate impact on, people with

disabilities.

Section 6

Best Practices for Local Government Leaders

• Understand the federal, state, and local fair housing laws that apply to your jurisdiction.

• Review all housing-related ordinances, regulations, policies, and practices to determine if

your jurisdiction has a nuisance and/or crime-free ordinance.

• Avoid enacting or enforcing ordinances that penalize alleged or suspected criminal

activity.

• Avoid references to criminal activity that are overly broad or provide undue enforcement

discretion.

• Avoid enacting or enforcing ordinances that require housing providers to use criminal

history to screen tenants. Mandatory background checks create the risk that housing

providers will unlawfully consider arrest records that did not lead to a conviction.

• Avoid penalizing a housing provider or a resident merely because the tenant, a household

member, or a guest calls the police or has an arrest record that did not result in a conviction.

• If your jurisdiction has or enacts a nuisance or crime-free housing ordinance, the ordinance

should be narrowly tailored to apply only to criminal activity that impacts public safety.

Crime-free ordinances should only pertain to recent criminal convictions. If a criminal

offense happened far in the past, it is likely that the person may not pose a substantial risk

of reoffending.

Section 6-Best Practices for Local Government Leaders

• If your jurisdiction has a nuisance or crime-free housing ordinance, carefully assess

whether the ordinance discriminates, or could discriminate against a protected group.

Ask:

• Does the ordinance intentionally discriminate against or single out a protected group?

• Is or could the ordinance be applied in a discriminatory manner?

• Does the ordinance have a disparate effect or impact on a protected group?

• If your jurisdiction receives HUD funding, assess the impact of the nuisance and/

or crimefree housing ordinance as part of your Afrmatively Furthering Fair Housing

obligations and take meaningful actions to remedy any risk of discrimination.

• Create a data collection and tracking system to assess nuisance and crime-free

housing enforcement by address, neighborhood, alleged criminal activity, and resident

demographics.

• Conduct an annual data-driven review to assess if the ordinance has discriminatory

effects.

• Provide periodic training to government leaders, staff, police, housing providers, and

community members on fair housing laws, issues of housing discrimination, and the

risks of enforcing crime-free housing and nuisance ordinances.

Section 7

Legal Remedies for Unlawful Discrimination

A person wishing to le a discrimination complaint with HUD or IDHR can do so within one

year of the violation.

A person wishing to le a discrimination complaint in federal or state

court can do so within two years of the violation.

In a fair housing complaint, there are several types of relief available to an injured party.

• Actual damages are money damages awarded to a person discriminated against to

compensate for actual loss suffered because of the housing provider’s discrimination,

such as compensation for lost housing opportunities, rent differentials, out-of-pocket

expenses, emotional suffering, moving expenses, and other costs.

• Injunctive and equitable relief requires a housing provider to do or not do a specied

act. Its purpose is to correct the effects of the fair housing violation and prevent future

violations. It may require a housing provider to: attend a fair housing training; grant an

accommodation or modication; or prohibit further discrimination.

• Under fair housing laws, an injured party who successfully brings an action against the

housing provider can recover the costs of an attorney to handle the case.

Illinois Human Rights Act, 775 ILCS 5/7B-102(a); Fair Housing Act, 42 U.S.C. § 3610(a)(1)(A).

Illinois Human Rights Act, 775 ILCS 5/10-102(A); Fair Housing Act, 42 U.S.C. § 3613(a)(1)(A).

Illinois Human Rights Act, 775 ILCS 5/8B-104; Fair Housing Act, 42 U.S.C. §3613(c)

Section 7-Legal Remedies for Unlawful Discrimination

• In fair housing actions brought by IDHR, HUD, the Illinois Attorney General or the U.S.

Department of Justice, housing providers can be required to pay civil penalties or nes.

• Punitive damages are money damages awarded to the injured party to punish the housing

provider for particularly bad acts and to deter others from similar misconduct.

• HUD may require housing providers and local governments that receive federal funds to

return those funds for violating federal fair housing laws. Projects receiving Low Income

Housing Tax Credits can have their credits recaptured by the Internal Revenue Service.

• Under Illinois Public Act 99-441, a municipality or county which enacts or enforces an

ordinance that penalizes people with disabilities for calling the police for reasons related

to their disability, or that penalizes victims of domestic violence, may be liable for money

damages, injunctive relief, and the costs of the injured party attorney.

Krueger v. Cuomo, 115 F.3d 487, 493 (7th Cir. 1997).

Illinois County Code, 55 ILCS 5/5-1005.10; Illinois Municipal Code, 65 ILCS 5/1-2-1.5.

Section 8

Appendices

Legal Guidance

1. U.S. Department of Housing and Urban Development

Guidance for Public Housing Agencies (PHAs) and Owners of Federally Assisted

Housing on Excluding the Use of Arrest Records in Housing Decisions.

https://www.hud.gov/sites/documents/PIH2015-19.PDF

2. U.S. Department of Housing and Urban Development

Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records

by Providers of Housing and Real Estate-Related Transaction

https://www.hud.gov/sites/documents/HUD_OGCGUIDAPPFHASTANDCR.PDF

3. U.S. Department of Housing and Urban Development

Guidance on Application of Fair Housing Act Standards to the Enforcement of Local

Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence,

Other Crime Victims, and Others Who Require Police or Emergency Services.

https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF

Statutes

a) Illinois Human Rights Act (775 ILCS 5)

http://www.ilga.gov/legislation/ilcs/ilcs2.asp?ChapterID=64

b) Illinois Civil Rights Act (740 ILCS 23)

https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2492&ChapterID=57

c) Illinois Public Act 99-441 (codied at 55 ILCS 5/5-1005.10; 65 ILCS 5/1-2-1.5)

https://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=099-0441

d) Fair Housing Act (42 U.S.C. 3601)

https://www.justice.gov/crt/fair-housing-act-2

Municipal Ordinances

Units of local governments, such as municipalities and counties, may also have their own

civil rights ordinances. Housing providers should check with their units of local government

to learn whether they have an ordinance that may apply.

Section 8

Resources

Government Resources

Illinois Department of Human Rights

(IDHR) Fair Housing Division

555 West Monroe Street, 7th Floor

Chicago, Illinois 60661

(Tel) (312) 814-6229

(TTY) (866) 740-3953

(Fax) (312) 814-6251

[email protected]v

Ofce of the Illinois Attorney General

Civil Rights Bureau

James R. Thompson Center

100 West Randolph St., 11th Floor

Chicago, Illinois 60601

(Tel) (312) 814-5684

(TTY) (800) 864-3013

(Fax) (312) 814-3212

[email protected]

U. S. Department of Housing and Urban

Development (HUD)

Chicago FHEO Center

77 W. Jackson Blvd., Suite 2101

Chicago, Illinois 60604

(Tel) (800) 765-9372

(Fax) (312) 886-2837

U. S. Department of Justice (DOJ)

Civil Rights Division

950 Pennsylvania Ave., NW

Washington, DC 20530-0001

(Tel) (202) 514-4609

(TTY) (202) 514-0716

Other Resources

UIC Law School

Fair Housing Legal Support Center

300 South State Street

Chicago, IL 60604

(Tel) 312-987-2397

Shriver Center on Poverty Law

67 E. Madison St., Suite 2000

Chicago, IL 60603

(Tel) (312) 263-3830

The Shriver Center on Poverty Law,

“The Cost of Being “Crime Free”: Legal

and Practical Consequences of Crime

Free Rental Housing and Nuisance

Property Ordinances” (2013)

The Shriver Center on Poverty Law,

“Reducing the Cost of Crime Free:

Alternative Strategies to Crime

Free/Nuisance Property Ordinances in

Illinois” (2015)

Chicago:

555 West Monroe Street, 7th Floor

Chicago, Illinois 60661

(312) 814-6200 or (800) 662-3942 (Voice)

(866) 740-3953 (TTY)

Springeld:

524 S. 2nd Street, Suite 300

Springeld, Illinois 62701

(217) 785-5100 (Voice)

(866) 740-3953 (TTY)

Marion:

2309 West Main Street

Marion, Illinois 62959

(618) 993-7463 (Voice)

(866) 740-3953 (TTY)

Website: dhr.illinois.gov

Printed by the Authority of the State of Illinois

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