Fair Housing Act – Joseph William Singer

9th Circuit rejects “equal opportunity harasser” defense

June 10, 2023 / Fair Housing Act

When accused of sexual harassment, an employer or landlord sometimes tries to defend the claim by arguing that he treated male and female employees or tenants alike so no discrimination was involved, i.e., no one was treated differently “because of sex.” If this defense is a good one, then people could avoid liability under antidiscrimination laws by attempting to treat men in the same way they treat women and then argue that their sexual harassment of women was not “discriminatory.” This defense poses a puzzle for antidiscrimination law. Some courts suggest that any difference in treatment of men and women is sufficient to show discrimination because of sex while others suggest that each case be considered on its own and the fact that one discriminates against one person does not mean they did not also discriminate against another person because of sex. A third approach is to reject the defense …

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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

November 17, 2022 / 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

August 5, 2022 / 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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Sexual harassment of tenant by property manager violates Fair Housing Act

August 22, 2021 / 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.

Resolving conflicts between tenant with allergies and those needing support animals

August 18, 2020 / 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

August 18, 2020 / 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)

August 18, 2020 / 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

May 10, 2020 / 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)).

Landlord may be liable for fair housing violation if no response to one tenant’s racial harassment of another

December 7, 2019 / Antidiscrimination Law, Fair Housing Act, Real Estate Transactions

In the case of Francis v. King’s Park Manor, Inc., 2019 WL 6646495 (2d Cir. 2019), a tenant engaged in a vicious campaign of abuse and intimidation of another tenant, coming to his door and threatening to kill him and repeatedly yelling at him and calling him the “n-word” and “fucking Jews.” The victim called the police several times and notified the landlord of the harasser’s behavior, which persisted. The victim sued the landlord, claiming that it failed to investigate or attempt to resolve the problem and allowed the harasser to continue to live in his unit without reprisal. The harasser was convicted of the crime of harassment in violation of New York Penal Law §240.26(1). The Second Circuit agreed with other Circuits that have addressed the question that post-acquisition claims are cognizable under the federal Fair Housing Act (FHA), 42 U.S.C. §§3601 et seq.. Section §3604(b) prohibits discrimination in the “terms, …

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Condominium’s policy of segregating pool hours by gender violates fair housing laws

May 15, 2019 / Antidiscrimination Law, Condominiums and Homeowners Associations, Fair Housing Act

The Third Circuit held that a condo association that adopted sex-segregated pool hours to accommodate its Orthodox Jewish residents in an “over-55” age-restricted condominum violated the Fair Housing Act both by denying access to the common area based on sex and by giving women only 3.5 hours to swim on weeknights compared to 16.5 hours given to men. Curto v. Country Place Condominium Ass’n, 921 F.3d 405 (3d Cir. 2019). It did not matter that the motive was benign; what mattered was the denial of access to common areas on the basis of sex on unequal “terms, conditions, or privileges of sale or rental of a dwelling,” 42 U.S.C. §3604(b). The Court did not reach the question of whether sex-segregated hours might be lawful if equal time was provided to men and women but a concurring Judge Julio Fuentes did, arguing that any limit on access would be discriminatory.