Fair Housing Act

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

/ 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.

To avoid engaging in discrimination, Facebook changes its policy that had allowed advertisers for housing, employment, and credit to select which users could see their ads

/ Antidiscrimination Law, Fair Housing Act, Leaseholds, Mortgages, Real Estate Transactions

Responding to a lawsuit filed by the National Fair Housing Alliance and others that alleged discrimination against families with children, women, persons with disabilities, and on the basis of national origin, Facebook announced changes in its policies to avoid engaging in discriminatory advertisements. Brakkton Booker, After Lawsuits, Facebook Announces Changes to Alleged Discriminatory Ad Targeting, Mar. 19, 2019. See also Tracy Jan & Elizabeth Dwoskin, HUD is reviewing Twitter’s and Google’s ad practices as part of housing discrimination probe, Wash. Post, Mar. 28, 2019.

City of Miami has standing to challenge discriminatory mortgage lending policies of banks

/ Antidiscrimination Law, Fair Housing Act

On remand from a Supreme Court ruling that cities can be “aggrieved persons” injured by discriminatory housing practices, Bank of America Corp. v. City of Miami, 137 S.Ct. 1296 (U.S. 2017), the Eleventh Circuit held that the City of Miami had alleged sufficient injury to have standing to bring a Fair Housing Act claim against banks that steered black and Latino borrowers into unaffordable subprime loans that resulted in a wave of foreclosures that affected city finances by decreasing property values and then tax revenues. City of Miami v. Wells Fargo & Co., 2019 WL 1966943 (11th Cir. 2019). The opinion did not find that Miami had proven its claim, just that it had alleged sufficient injury to be able to bring the claim in federal court.

Supreme Court to decide whether discrimination on the basis of sexual orientation and gender identity are forms of “sex” discrimination under federal laws

/ Antidiscrimination Law, Fair Housing Act, Religious Freedom

The Supreme Court accepted certiorari in three cases (Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC) and will determine whether federal employment discrimination laws that ban “sex” discrimination cover discrimination based on sexual orientation and/or gender identity. The rulings in these cases are very likely to apply to the Fair Housing Act. Zarda v. Altitude Express, Inc.,883 F.3d 100 (2d Cir. 2018), cert. granted sub. nom Altitude Express, Inc., v. Zarda, 2019 WL 1756678 (U.S. 2019), held that discrimination based on sexual orientation is a form of sex discrimination both because it is either the sex of the employee or that their potential or actual partners that defines sexual orientation. Bostock v. Clayton County Bd. of Commissioners,723 Fed. Appx. 964 (11th Cir. 2018), cert. granted, 2019 WL 1756677 (U.S. 2019) came to the opposite conclusion. EEOC v. R.G. & G.R. Harris Funeral …

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Fifth Circuit rules that landlord rejection of Section 8 housing voucher recipients does not violate the Fair Housing Act by imposing a disparate impact on the basis of race

/ Antidiscrimination Law, Fair Housing Act, Leaseholds

Persons in need of financial assistance to afford housing are in a variety of categories of persons protected by the Fair Housing Act. African Americans are more likely than white persons to be poor; women of all races are more likely to be poor than men; persons with disabilities are more likely to need government assistance than those who are temporarily abled; and children are much more likely to be poor than adults. It would seem easy to show that refusing to rent to persons who are eligible for and who receive housing vouchers from the federal government (so-called Section 8 certificates) causes a disparate impact based on race, disability, sex, and familial status that may be unlawful under the Fair Housing Act unless the impact can be justified by a sufficient strong business objective that cannot be achieved in a less discriminatory way. However, the 5th Circuit rejected a …

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Seventh Circuit holds that the Fair Housing Act prohibits discrimination based on sexual orientation

/ Antidiscrimination Law, Concurrent or Common Ownership, Fair Housing Act, Gender Identity, Sexual Orientation

Extending a former precedent concerning employment discrimination, Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), a three judge panel of the Seventh Circuit has held that discrimination based on sexual orientation in housing is a form of sex discrimination prohibited by the Fair Housing Act. Wetzel v. Glen St. Andrew Living Community, LLC, 2018 U.S. App. LEXIS 24193 (7th Cir. 2018). The case involves a continuing care retirement community which failed to protect one of its residents from harassment by other residents directed at her because she is a lesbian. The court held that a landlord is liable for tenant-on-tenant harassment when it has actual notice of it but chooses not to take any reasonable steps to stop that harassment. Harassment is outlawed if it is severe or pervasive and that is the case where the harassment objectively interferes with teh enjoyment of the premises …

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Landlord does not commit disability discrimination when refusing to allow a tenant to keep an aggressive dog

/ Antidiscrimination Law, Fair Housing Act, Leaseholds

The Fair Housing Act requires landlords to avoid discrimination because of disability and to reasonably accommodate the needs of tenants by changing policies or practices to enable access to housing by persons with disabilities. However, accommodation is not required if it will pose a “direct threat” to the health or safety of others. This means that a landlord with a “no pets” policy must allow a tenant to keep an assistance animal unless doing so would impose an undue financial burden on the landlord or would fundamentally alter the nature of the housing services. In this case, the court found that the tenant was not entitled to a reasonable accommodation when the dog exhibited aggressive tendencies, that some residents stayed inside because they were afraid of the dog, and that the tenant might not be able to control the dog. Gill Terrace Retirement Apts., Inc. v. Johnson,177 A.3d 1087 (Vt. 2017).

First Amendment protects right to federal registration of offensive trademarks that disparage a person or group

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act, Free Speech, Intellectual Property, Religious Freedom, Sexual Orientation, Trademarks

The Supreme Court held that the First Amendment prohibits enforcement of a provision of the Lanham Act that purports to deny the benefits of trademark registration to names or marks that “disparage” a person or “bring [them] into contempt or disrepute.” Matal v. Tam,2017 WL 2621315 (U.S. 2017); 15 U.S.C. §1502(a) (Lanham Act). The Court held that “this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” The case involved a band called “The Slants” who sought to reclaim an offensive term for persons of Asian descent. Because the Court’s analysis focused on the idea that speech cannot be regulated because of its offensive content, it would appear that this ruling would equally apply to those who use a term about themselves (the members of the Slants are Asian-Americans) …

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Seventh Circuit holds that transgender discrimination is a form of sex discrimination

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation, Trespass

Applying Title IX of the Education Amendments Act of 1972, 20 U.S.C. §1681, as well as the Equal Protection Clause of the Fourteenth Amendment, a three judge panel of the Seventh Circuit has ruled that a school must allow a transgender boy to use the boy’s bathroom, holding that discrimination on the basis of gender idenitty is a form of sex discrimination. Whitaker v. Kenosha Sch. Dist. No. 1 Bd. of Educ., 2017 U.S. App. LEXIS 9362 (7th Cir. 2017). The court affirmed a preliminary injunction granted by the District Court requiring the school to allow plaintiff access to the restroom that conforms to his gender identity. The court rested on the gender conformity argument because “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth” and a “policy that requires an individual to use a bathroom that …

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Sexual orientation discrimination as a form of sex discrimination

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act, Sexual Orientation

While the West Virginia Supreme Court adopted the traditional view that discrimination because of sexual orientation is not a form of sex discrimination, State v. Butler, 2017 W. Va. LEXIS 333 (W.Va. 2017) (hate crime against two gay men did not constitute criminal civil rights violation willfully injuring a person “because of such other person’s … sex”), the Seventh Circuit came to the opposite view in Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 2017). See also Christiansen v. Omnicom Group, Inc., 2017 U.S. App. LEXIS 5278 (2d Cir. 2017) (although bound by precedent to hold the opposite, the court argued that sexual orientation discrimination is a form of sex discrimination); Smith v. Avanti, 2017 U.S. Dist. LEXIS 54777 (D.Colo. 2017) (refusal to rent to same-sex couple when one of the two was a transgender woman is a form of sex discrimination because it is based on gender stereotyping). The West Virginia Supreme …

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