Antidiscrimination Law

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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Both sexual orientation and gender identity discrimination are forms of sex discrimination

/ Antidiscrimination Law, Gender Identity, Religious Freedom, Sexual Orientation

Although decided under Title VII (employment discrimination) rather than the Fair Housing Act, the Supreme Court’s 5-4 ruling in Bostock v. Clayton County, 140 S.Ct. 1731 (2020) that both sexual orientation and gender identity discrimination are forms of sex discrimination is quite likely to be extended to the housing context. Justice Gorsuch’s majority opinion focused on a textual reading of the statute and the so-called comparative or but for theory to the effect that an employer who fires a man for being attracted to other men but would not do so if he were a woman has necessarily discriminated against that men just because of his sex. It does not matter if his motives were related to his views of homosexuality or same-sex marriage or religion or anything else. While this argument is likely to extend to claims under the Fair Housing Act, 42 USC §3601 et seq., it will not …

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Resolving conflicts between tenant with allergies and those needing support animals

/ Antidiscrimination Law, Fair Housing Act

In a case typical of a property law class, the Supreme Court of Iowa confronted a conflict between one tenant who needed an emotional support animal and another who was allergic to dogs. Cohen v. Clark, 945 N.W.2d 792 (Iowa 2020). The lease for both tenants contained a “no pets” clause. The question was whether the landlord had a duty under fair housing laws to make an exception to that policy as a “reasonable accommodation” for a tenant with a disability. In this case, however, two tenants arguably had disabilities and the means of enabling one to enjoy housing would have deprived the other of housing. The court resolved the conflict by using the time-honored property law doctrine of “first in time, first in right.” Since the tenant with pet allergies moved into the building first, and did so because of its no-pets policy, the court held that the landlord had no …

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City can enforce ban on pit bulls against resident who needs emotional support animal when he had other dogs that might serve that purpose

/ Antidiscrimination Law, Fair Housing Act

The Nebraska Supreme Court faced a claim by a resident that he had a right under fair housing laws to a reasonable accommodation of a city law that prohibited residents from owning pit bulls due to their perceived dangerousness. Wilkison v. City of Arapahoe, 926 N.W.2d 441 (Neb. 2019). Because the resident had other dogs, and he could not prove that they could not serve the same purpose, the court found that he did not have a right to an exemption from the ordinance.

Trump administration withdraws Obama era rules on “affirmatively furthering fair housing” (AFFH)

/ Antidiscrimination Law, Fair Housing Act

Although the Fair Housing Act (FHA) requires any government entity managing or receiving federal funds “affirmatively to further fair housing,” (AFFH), 42 U.S.C. §3608(e)(5), enforcement of this provision has been remarkably lax since the passage of the FHA in 1968. The Obama Administration tried to change that with a new regulation that provided detailed guidance about steps local governments needed to take to determine whether they were complying with their AFFH obligations. They were required to report to HUD their efforts to comply with the obligation, including reporting on the ways their laws contributed to racial segregation. Importantly, that rule also required HUD to review those plans and approve them. Final Rule, Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272, 42,273, 42,278 (July 16, 2015). The rule did not mandate specific outcomes but That regulation would have helped prompt local governments to determine how their local land use laws affected the availability …

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Virginia prohibits sexual orientation and gender identity discrimination in housing and public accommodations

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation

By passage of the Virginia Values Act, Virginia joins 22 other states and the District of Columbia in prohibiting discrimination on the basis of sexual orientation and gender identity in public accommodations and housing (as well as employment). Va. Stat. §2.2-3904 and §36–96.3 (as amended by 2020 Va. H.B. 1663 (Feb. 27, 2020)).

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