Antidiscrimination Law

Conflicting rulings on whether testers have standing under the Americans with Disabilities Act (ADA)

/ Antidiscrimination Law

The First Circuit has held that a tester may bring a lawsuit against a hotel for an inaccessible website even if the tester never had an intention of booking a room at the hotel. Laufer v. Acheson Hotels, LLC., 50 F.4th 259 (1st Cir. 2022). The Eleventh Circuit agrees, Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022), but the Second, Fifth, and Tenth Circuits disagree, Harty v. W. Point Realty, Inc., 28 F.4th 435 (2d Cir. 2022); Laufer v. Mann Hospitality, Inc., 996 F.3d 269 (5th Cir. 2021); Laufer v. Looper, 22 F.4th 871 (10th Cir. 2022). The issue is likely to be one the Supreme Court will need to resolve.

Broker remarks to prospective tenant that landlord might object to housing voucher approval process violate state law that prohibits statements that indicate a preference to refuse to rent to such tenants

/ Antidiscrimination Law

The Supreme Court of Connecticut has held that it violates state statutes that prohibit discrimination against housing voucher recipients to indicate a preference not to rent to tenants whose rental payments are subsidized by government. Lopez v. William Raveis Real Est. Inc., 272 A.3d 150 (Conn. 2022). While there was no statement of an intent to discriminate, the state law does not require proof of intent; rather it prohibits making any statement that indicates a preference not to rent to someone because of their “source of income.” Conn. Stat. §46a-64c(a)(3).

Fair Housing Act claim available for racial harassment by one owner against another but no claim against the homeowners association itself even though the harassers were president of the HOA

/ Antidiscrimination Law, Fair Housing Act

When an African American couple bought property and were subject to taunts and told they were unwelcome by other owners, they had claims against those owners under the Fair Housing Act both by “making housing unavailable” under 42 U.S.C. §3604(a), and “interfering” with others in the “enjoyment of… right[s] granted by [the Fair Housing Act].” Watters v. Homeowners’ Ass’n at the Preserve at Bridgewater, 48 F.4th779 (7th Cir. 2022). However, even though the harassers were the president and former president of the homeowners’ association, the association itself was not liable despite its failure to intervene to stop the harassment.

Disparate impact claim unavailable against public water utility for increasing the security deposit required of public housing tenants

/ Antidiscrimination Law, Fair Housing Act

The Ninth Circuit held, in Southwest Fair Housing Council, Inc. v. Maricopa Domestic Water Improvement Dist., 17 F.4 950 (5th Cir. 2021), that no violation of the Fair Housing Act occurred under a disparate impact theory when public housing tenants were required to pay a new higher security deposit to obtain water services from a public water utility. The court found a disparate impact against Black and Native American customers, as well as unmarried women with children and found that the plaintiffs had shown the utility’s actions caused the impact. However, the utility had a legitimate business justification for its actions that outweighed the disparate impact. Its justification was the public housing tenants tended to have unpaid utility bills in excess of its prior security deposit amount and that they had higher unpaid bills than tenants in private housing. Plaintiffs lost on the disparate impact issue because they could not prove that …

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Washington Supreme Court holds racial covenants in public records must be retained but can be marked void

/ Antidiscrimination Law, Servitudes

Construing a state statute, Wash. Stat. §49.60.227, the Washington Supreme Court held that racial covenants cannot be completely excised from public records. The court determined that the statute allowed a court order to be filed with the recorded title voiding the covenant but did not authorize excising the covenant from the public records entirely. This result occurred despite the fact that the statute provided that courts should “strik[e] the void provisions from the public records.” Wash. Stat. §49.60.227(1)(b). The statute did provide that the original record “shall be separately maintained in the county’s records.” This meant that the public title would note the illegality of the limitation but public records would continue to document the historical existence of the covenant. The court explained that “future generations [should] have access to these documents because, although the covenants are morally repugnant, they are part of a documented history of disenfranchisement of a …

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Probation on discriminating against Section 8 recipients does not violate due process

/ Antidiscrimination Law, Due Process, Leaseholds, Real Estate Transactions

The Minnesota Supreme Court has held that a state statute that prohibits landlords from refusing to rent to housing voucher (Section 8) recipients does not violate the due process or equal protection clauses of the Minnesota Constitution. Fletcher Properties, Inc. v. City of Minneapolis, 947 N.W.2d 1 (Minn. 2020). While federal law does not require landlords to rent to tenants whose rent is subsidized by housing vouchers, some states do impose this obligation on landlords. Some landlords object to the Section 8 program because it imposes procedures and costs on such landlords and some substantive terms such as prohibiting eviction without good cause. The court held that the law did not deprive landlords of due process of law because the legislature could reasonably believe that it served the public purpose of enabling voucher holders to find housing. And the fact that some landlords were exempt from the statutory obligations did not violate …

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Federal court rejects claim for religious or speech exemption from state public accommodations law for wedding photographer

/ Antidiscrimination Law, Consumer Protection, Free Speech, Religious Freedom, Sexual Orientation

A federal judge for the Western District of New York has ruled that the state public accommodations statute can be applied to a wedding photographer who refused to provide services for same-sex couples. Carpenter v. James, 2021 WL 5879090 (W.D.N.Y. 2021). On the speech claim, the court assumed that the law compelled speech on the part of the photographer but held that the law only affected speech incidentally in connection with regulation of economic activity and that the law was narrowly tailored to achieve its purposes. The court also held that the provision of photography services did not require the photographer to participate in a religious ceremony. Note that an Eighth Circuit decision disagrees. Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019).

Sexual harassment of tenant by property manager violates Fair Housing Act

/ Antidiscrimination Law, Fair Housing Act, Leaseholds

The Eleventh Circuit joins other courts that have held that sexual harassment by a landlord (or an agent of the landlord) can constitute sex discrimination in violation of the Fair Housing Act, 42 U.S.C. §3601 to §3613 if the behavior would not have occurred but for the tenant’s sex. This formulation has been adopted by other courts, see United States v. Hurt, 676 F.3d 649 (9th Cir. 2012), Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010), and suggests that a landlord that sexually harasses both men and women would not be liable for engaging in sex discrimination — a result that would enable landlords to insulate themselves from liability by choosing to harass tenants indiscriminately.

Websites held not to be public accommodations under the Americans with Disabilities Act

/ Antidiscrimination Law

The Eleventh Circuit held that the public accommodation provisions of the Americans with Disabilities Act, Title III, do not apply to websites but only to physical stores. Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021). The court found the language in the statute to be unambiguous. The court explained that the statutory definition “describes twelve types of locations that are public accommodations. All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, we conclude that, pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places. Necessarily then, we hold that websites are not a place of public accommodation under Title III of the ADA. Therefore, Gil’s inability to access and communicate with the website itself is not a violation of Title III.” The court noted disagreement among the …

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A third case granting a wedding provider a free speech exemption from an antidiscrimination law

/ Antidiscrimination Law, Religious Freedom, Sexual Orientation

For the third time, a court has held that a public accommodations law cannot be enforced against a service provider who objects, for religious reasons, to same sex marriage. Chelsey Nelson Photography, LLC v. Louisville/Jefferson County Metro Gov’t, 2020 U.S. Dist. LEXIS 146246 (W.D. Ky. 2020). The other two times were: Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019); Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019). Cases going the other way and finding it constitutional to enforce public accommodations laws to service providers who oppose same-sex marriage include: Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)’ State v. Arlene’s Flowers, Inc., 441 P.3d 1203 (Wash. 2019). The judge in the Chelsey Nelson case found a free speech violation because “photography is art,” “art is speech,” and the “government can’t compel speech when it violates the speaker’s religious or political principles.” In …

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