Is it legal to lie about an illegal requirement?

Question

As an example, its not legal to discriminate against a person of a certain race while renting out your house. So lets say an Asian person sees a house rented out with a "no Asians" condition. Would it be legal for them to "mask" themselves as a White person, tell the landlord they're White, sign a paper saying they're White and then proceed to rent the place?

Now... they'd be outright lying but at the same time what they're lying about is not supposed to have been asked in the first place. So does one wrong (discrimination) trump another (lying) in a court of law?

Update: since it’s not clear, I’m talking about a scenario where the “Asian” person is willing to admit they lied in a court of law. This isn’t a question on how race is legally defined.

Answer 1

Lying may be wrong, but it in the United States, it is generally not illegal. United States v. Alvarez, 132 S. Ct. 2537 (2012).

For a lie to be illegal, it generally needs to fall into one of a few specific categories, usually involving either fraud or the frustration of legitimate government activities (as in perjury, falsification of records, or lying to a federal agent).

In any of these cases, the First Amendment is generally going to prohibit any penalties unless the false statement is material, i.e., it had the potential to change the outcome of the event in which it was uttered. As you noted, it is generally illegal to discriminate against Asians, so I would expect a court to treat the tenant's ethnicity as immaterial and require the landlord to honor the rental contract.

Of course, this assumes that the landlord is prohibited from disciminating against Asians, which is not always true. The Fair Housing Act has exemptions for (a) private clubs; (b) for buildings with four or fewer units, one of which the landlord occupies; (c) for single-family homes that the landlord is renting without the help of an agent; and (d) for religious organizations.

In such a case, the landlord may be actually be permitted to disciminate against Asians, so the tenant's false statement about their ethnicity would become material the transaction, and a court may therefore permit the landlord to rescind the contract.

(Note, though, that even though the FHA permits discrimination in those limited situations, it forbids advertising discriminatory preferences. The landlord's "No Asians" language is therefore illegal, whether it is communicated on a sign in the window or in a classified ad or by word of mouth.)

Answer 2

In general, a contract term that is illegal is, at a minimum, not enforceable (it may make the contract entirely void, depends on jurisdiction). A legal term, such as "pay $1500 per month" is enforceable, and you can be evicted if you don't abide by the term. An illegal term cannot be enforced, and you cannot be evicted for being Asian.

Lying is not per se actionable, except insofar as it may be an element of a fraud lawsuit. But such a lawsuit would fail on numerous grounds. Race is – by law – not a material fact in subletting. It is also highly improbable that a plaintiff could prove that the statement was knowingly false (we don't have race-identifiers issued at birth).

Answer 3

TL;DR Hard to show someone lied if they told a variant of the truth

Race is not black and white - it is many shades of gray. There are a lot of scenarios where I may call myself, by one definition, "Asian", and you may call me "white". Or vice versa. In OP's example, someone might have facial features and hair that are commonly characteristic of "Asian" and a typical "Asian" last name. Yet that same person might have been born outside of Asia and therefore arguably not be Asian. Not a "lie". Just a different definition of the truth.

To put it another way: If the defendant goes into court, I would suggest that rather than say they lied, they instead say "I don't call myself a real Asian." Then under cross-examination it will come out how the plaintiff is defining "Asian" - e.g., at least 50% Asian ancestry (making that up, but plausible) - and the defendant would then be asked if they fit that definition: "Yes, my parents were born in Asia." "Then you are Asian! You lied!" "No, I was not born in Asia. I consider myself an American. The sign didn't say 'Asian ancestry', it said 'Asian', and the way I understand 'Asian', I am not one."

In the US at least, "race" is an extremely controversial term, for a lot of reasons. It is also an extremely vague term. Consider how many different places we are asked, typically on government forms, political and other surveys (yes, that includes StackExchange), applications for all kinds things. Sometimes that is for marketing reasons, sometimes for pseudo-legal reasons (to show that a particular "thing" is non-discriminatory by showing a (self-identified) distribution across various races/ethnicities/eages/etc., sometimes for no apparent reason at all except "all the other surveys ask it". But as it is commonly self-identified, consider the possibilities. I'll use "Asian" as an example. Which of the following are included:

• Born in Asia
• Born outside of Asia from two "Asian" parents
• Born outside of Asia from one "Asian" parent and one non-Asian parent
• Born outside of Asia but of Asian ancestry and grew up in Asia
• Born outside of Asia but of Asian ancestry and grew up in an Asian community - e.g., Chinatown in many US cities.
• Born outside of Asia but of Asian ancestry and grew up outside Asian in a non-Asian community (and if so, when does Asian ancestry cease to be a factor)

Arguably in the example case, unless someone was born in Asia they could argue, if it came to a legal battle, that they do not consider themselves "Asian" and therefore were not misrepresenting themselves when signing the contract.

In addition, what is Asia? I think the term as stated in this question likely refers to China, Japan, India and nearby areas. But according to Wikipedia it includes the Arabian peninsula (Israel, Saudia Arabia, Iraq, Iran, etc.), Russia (not clear how much of Russia - but definitely a lot of it) and many other places that may not fit the common "Asian" reference.

As another example, "African American" is a common term used in similar situations. There are other terms. But using "African American", if a "white" person from Egypt or South Africa immigrates to the US, are they "African American"? Clearly not the intent of the categorization (which is based on very real both historical and ongoing discrimination against specific groups of people) yet linguistically and biologically correct.

Answer 4

The question states

its not legal to discriminate against a person of a certain race while renting out your house.

But at least under US Federal lw, this may not be accurate. This HUD page reads:

In very limited circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family houses sold or rented by the owner without the use of an agent, ...

"Your house" is apt to be a single family house, so if no agent or broker is used (including a listing service) then the transaction may not be covered by the US Fair Housing Act. Many US states have state-level fair housing laws as well, but these are likely to have similar exemptions.

If the transaction is not covered by a fair-housing law, the restriction is not illegal, and a lie would not be excused by its illegality. Whether it would in such a case amount to fraud, and be actionable as such, would I think depend on the exact jurisdiction.