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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.

Rodrigo de Azevedo
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JonathanReez
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    Similar situation: Asking in job interviews: Are you pregnant? Do you plan to have children in the next few years? etc is illegal in various jurisdictions. Deliberately lying if you are asked questions like this anyway is permitted. – quarague Aug 17 '21 at 09:20
  • People investigating housing discrimination do this regularly, though usually they unmask themselves before signing the lease so they can expose the discrimination. – phoog Aug 17 '21 at 15:37
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    "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?" What landlord (or agent) signs a lease agreement without first meeting the prospective lessee? – RonJohn Aug 18 '21 at 06:06
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    @RonJohn not an Asian person but Rachel Dolezal comes to mind when I think of people masking their race. But honestly it could be anything - a woman lying about not being pregnant, a trans person lying about being cis, a gay person lying about being straight, etc. – JonathanReez Aug 19 '21 at 17:30

4 Answers4

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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.)

bdb484
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    There was a case in Australia, where an advert with "no asians" was spotted in a newspaper, and it turned out the landlord wanted no enquiries from estate(asians)agents. – gnasher729 Aug 17 '21 at 00:10
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    @gnasher729 Can you elaborate on that? Is "asian" slang for estate agent in Australia? – gerrit Aug 17 '21 at 08:30
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    @gerrit spelling error, I believe? Like "eggcorn" (acorn), "asian" in place of "agent" would be my guess. – user45266 Aug 17 '21 at 08:49
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    @gerrit Most likely it was misheard, presumably the ad was placed over the phone. – Bob Aug 17 '21 at 14:22
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    @gerrit It was an accent thing... In a thick Australian accent, "agent" is pronounced with a soft "g" and an almost absent "t", so it sounds like aie-j-un(t). It's on Youtube - search for australian, no asians. – Oscar Bravo Aug 17 '21 at 14:49
  • @gerrit, when I say it it's something like estate ayedjents. This gentleman was much closer to estate ajians. – gnasher729 Aug 17 '21 at 14:56
  • Lying by a police officer is illegal when people ask questions about there rights – Neil Meyer Aug 17 '21 at 19:33
  • @gerrit sounds almost like a "homonym" but not, so would be a "mondegreen" but not in a song lyric. – Criggie Aug 18 '21 at 09:51
  • It's not just Australian accents. See, for example, the song "Secret Asian Man." – Karl Bielefeldt Aug 18 '21 at 13:03
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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).

user6726
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  • What if the landlord gives you a discount for being "White", thus making it profitable to lie, rather than outright banning Asian people? And lets assume that the person lying is willing to openly state that they're Asian in a court of law, just not to the landlord. – JonathanReez Aug 16 '21 at 20:09
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    I'd only quibble with the last sentence. You don't need to have a race identifier issued at birth to clear a "knowingly" standard, which basically never requires that level of certainty, and in fact often includes cases where the defendant actually doesn't know the facts in question. – bdb484 Aug 16 '21 at 20:11
  • it may make the contract entirely void, depends on jurisdiction The Roman wording is nemo auditur propriam turpitudinem allegans. It’s useful to sound classy at dinners but less useful in court (its applicability is rather limited - the general preference across jurisdictions is to sever the offending clause, and keep the rest of the contract alive if possible). – KFK May 02 '23 at 10:39
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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.

manassehkatz-Moving 2 Codidact
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    A lady or gentleman from India could likely consider themselves ten times more "Indian" than "Asian", just like I don't think of myself as "European". And I've seen a very well-known TV actor getting very annoyed when he was referred to as "Asian" instead of "Pakistani". – gnasher729 Aug 17 '21 at 15:00
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    The legal element of this answer, the part that actually addresses the question, is buried in the middle. You might consider leading with that paragraph. – phoog Aug 17 '21 at 15:44
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    I know White people born in Asia, so I think your point needs more refinement. – Azor Ahai -him- Aug 17 '21 at 16:25
  • It’s a good explanation of what “race” is but I’m more interested in a scenario where the “Asian” person openly says “yeah I lied to his face. I do not and never have considered myself Asian. It’s was all fraud designed to get the apartment”. – JonathanReez Aug 17 '21 at 16:28
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    "Race" is like pornography: you know it when you see it (although a few generations of interracial children make that harder to "know"). For example, the first "black" mayor of New Orleans was so light skinned that he easily "passed" as being an "ethnic" white in the 1940s South. – RonJohn Aug 18 '21 at 06:02
  • there are legal definitions and precedents for race in the US, so i don't think this would work all that well – Famous Jameis Aug 18 '21 at 15:43
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    @FamousJameis Maybe it would, maybe it wouldn't. I'm not 100% sure. But while I do suspect a "white" South African who comes to the US and applies for government funds set aside for "minorities" would not fare well, if it comes to the OP's example - denial of being in a discriminated category for a (possibly illegal) private housing situation based on different definitions of a single vague word, it might well work. – manassehkatz-Moving 2 Codidact Aug 18 '21 at 16:26
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    Don't forget born in Asia, but to non-Asian parents. Or born in Asia, to Asian parents, but now a citizen of another country (dual or renounced) ;) – NPSF3000 Aug 19 '21 at 16:38
  • Imagine being born in Istanbul and be called “European” or “Asian” depending on which side of the Bosporus. And most likely thinking of yourself as Turkish. More extreme: Your parents lived on one side of the Bosporus, but visited a friend on the other side, had to go to a hospital and now you are supposedly different from your siblings. – gnasher729 May 03 '23 at 13:55
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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.

David Siegel
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