Fair Housing Act

Another court holds that sexual orientation discrimination is a form of sex discrimination

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation

A federal district court has held that discrimination because of sexual orientation is a form of sex discrimination. EEOC v. Scott Med. Health Ctr., P.C., 2016 U.S. DIst. LEXIS 153744 (W.D. Pa. 2016). Plaintiff complained of a sexually hostile work environment by deriding his sexual orientation. The court noted that “[t]here is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.” The Supreme Court has never held that sexual orientation discrimination is a form of sex discrimination and a determination on this issue will have to wait until choice of the next Supreme Court Justice and an appropriate case.

Courts wrestle with sexual orientation discrimination

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation

The law of sex discrimination has long suffered under the problem of distinguishing between discrimination based on sex and discrimination based on sexual orientation. Twenty-two states and the District of Columbia, as well as over one hundred municipalities, have laws prohibiting discrimination in the housing market on the basis of sexual orientation. Those jurisdictions include California, Colorado, Connecticut, Delaware, the District of Columbia, Hawai‘i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin. Congress has so far refused to pass a statute prohibiting sexual orientation discrimination in housing, employment, and public accommodations.  Federal fair housing law does not facially prohibit sexual orientation discrimination but it does prohibit discrimination on the basis of sex. So far courts have not accepted the argument that sexual orientation discrimination is a form of sex discrimination. Christiansen v. Omnicom Group, Inc., 2016 …

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HUD Guidance on discriminatory refusals to rent to tenants with criminal records

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

Now that the Supreme Court has definitively found that the federal Fair Housing Act, 42 U.S.C. §§3601-3631, prohibits practices that have a disparate impact on protected groups, see Tex. Dept of Hous. & Comty. Affairs v. Inclusive Comtys. Project, Inc., 135 S. Ct. 2507 (U.S. 2015), consequences of that decision are becoming more clear. On April 4, 2016, the Office of General Counsel for the U.S. Department of Housing and Urban Development (HUD) issued a Guidance on the application of the Fair Housing Act to decisions by landlords and sellers related to tenants and buyers with criminal records. Office of General Counsel on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real-Estate Related Transactions (Apr. 4, 2016). The Guidance notes that a greater percentage of African Americans and Latinos than whites have criminal records. The refusal to rent or sell to persons with criminal records may …

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Second Circuit follows HUD regulation requiring plaintiffs in disparate impact cases to prove a less discriminatory way to achieve the defendant’s legitimate interest

/ Antidiscrimination Law, Fair Housing Act, Transactions, Zoning

In MHANY Mgmt., Inc. v. County of Nassau, 2016 U.S. App. LEXIS 5441 (2d Cir. 2016), the Second Circuit adopted the burdens of proof for disparate impact claims under the Fair Housing Act spelled in the regulations of the U.S. Department of Housing and Urban Development. Those rules place the burden on the plaintiff to prove a discriminatory effect either by showing a disparate impact on a protected group or a segregative effect. If that can be shown, the burden shifts to the defendant to show a “substantial, legitimate, nondiscriminatory interest” that justifies the discriminatory effect. At that point, the HUD regulations, now adopted and approved by the Second Circuit, put the burden of proof on the plaintiff to show that the “substantial, legitimate, nondiscriminatory interest” of the defendant “could be served by another practice that has a less discriminatory effect.” 24 C.F.R. § 100.500(c)(3). The Second Circuit, and some other Circuits, …

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Supreme Courts affirms disparate impact claims under the Fair Housing Act (with a caveat)

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act, Real Estate Transactions

The United States Supreme Court announced its decision in Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 2015 WL 2473449, — U.S. — (2015), upholding disparate impact claims under the Fair Housing Act (FHA), 42 U.S.C. §3601 et seq. The case involved a challenge to criteria used by a state agency on where to give tax credits that subsidize construction of low-income housing. Plaintiff is a nonprofit organization that promotes housing for low-income families. It claimed that the agency’s formula steered housing to poorer areas and thus perpetuated or aggravated racial segregation in housing. The specific question taken by the Supreme Court was whether disparate impact claims are at all available under the Fair Housing Act. The Court decided that they are but limited them because of constitutional principles. The Court noted that earlier cases had upheld disparate impact claims in employment discrimination when the statutes focused on consequences of …

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Fair Housing Act’s Disparate Impact Claims at Issue

/ Antidiscrimination Law, Fair Housing Act, Real Estate Transactions

The Supreme Court has taken certiorari in a Fifth Circuit case to address the question of whether disparate impact claims are available under the Fair Housing Act (FHA), 42 U.S.C. §§3601 et seq. Tex. Dep’t of Hous. & Comty. Affairs v. The Inclusive Communities Project, Inc., 135 S.Ct. 46 (2014), on appeal from The Inclusive Communities Project, Inc. v. Tex. Dep’t of Hous. & Comty. Affairs, 747 F.3d 275 (5th Cir. 2014). All federal Circuit Courts to address the issue have found such claims to be available and the Department of Housing and Urban Affairs has fairly recently promulgated a regulation defining the test for disparate impact claims under the FHA. 24 Code Fed. Reg. Part 100, §§100.5 to 100.500.

Housing discrimination by town officials still a problem

/ Antidiscrimination Law, Consumer Protection, Due Process, Fair Housing Act, Leaseholds, Real Estate Transactions

A number of recent cases has revealed the persistence of racial discrimination affecting municipal decisions about housing. The Sixth Circuit found, for example, in Hidden Village, LLC v. City of Lakewood, Ohio, 734 F.3d 519 (6th Cir. 2013), that town officials may have engaged in a campaign of harassment designed to induce African American residents to move out of town. The case involved a Lutheran religious organization that helped young people released from foster care or juvenile detention to enter society. The organization found a helpful landlord willing to rent apartments to the organization’s clients. At first the town officials argued that this amounted to an institutional use in violation of the zoning law but the town planning commission found otherwise. At that point, the complaint alleges that town officials began a campaign of police harassment that involved citations for minor offenses and unreasonable searches of apartments. The Sixth Circuit concluded that …

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Municipal attempt to induce residents to move because of race violates Fair Housing Act even if they do not move

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act

The Sixth Circuit has held that §3617 of the Fair Housing Act, 42 U.S.C. §3601 et seq., prohibits conduct intended to encourage residents to move even if they are not denied housing or induced to move. Hidden Village, LLC v. City of Lakewood, 2013 WL 5811642 (6th Cir. 2013). The basic provisions of the FHA (embodied in §3604) prohibit denying housing for discriminatory reasons, providing unequal and discriminatory terms and conditions for housing, and expressing an invidious preference for buyers or renters of a particular race, sex, etc. Section 3617 prohibits coercion, intimidation, threats, or any interference with any person’s right to exercise the fair housing rights protected by 3604. Federal courts have been confused and divided over whether §3617 provides a remedy when there is no underlying §3604 violation. In Hidden Village, municipal officials were unhappy with a religious youth service that helps young people released from foster care or juvenile detention enter …

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Settlement of Mount Holly case prevents Supreme Court from addressing disparate impact claims under the Fair Housing Act

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act

The Supreme Court has twice in recent years accepted certiorari in cases to decide whether disparate impact claims are available under the Fair Housing Act. Both cases settled before the Supreme Court could determine the issue. The most recent was Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d 375 (3d Cir. 2011). The prior case was Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010). Another lawsuit is in process called Am. Ins. Ass’n v. U.S. Dep’t of Hous. & Urban Dev. (D.D.C., filed 06.26.13),  brought by the insurance industry to challenge the disparate impact regulations promulgated this year by the Department of Housing and Urban Development (HUD). read article Those regulations define when disparate impact claims are available and are consistent with the general outlines of the doctrine as it been developed by all the Circuit courts.  24 C.F.R. § 100.500(a)–(b).

City ordinance intended to exclude a group home can constitute intentional discrimination even if there is no evidence of an impact on the group home

/ Antidiscrimination Law, Fair Housing Act

The Ninth Circuit affirmed that an action intended to discriminate in violation of the Fair Housing Act (FHA) creates a claim for which relief can be granted even if it has not had any other impact on the plaintiff. Pac. Shores Props., LLC v. City of Newport Beach, 2013 WL 5289100 (9th Cir. 2013). In this case, a city passed an ordinance intended to exclude group homes for recovering alcohol and drug users; it had terms that had the practical effect of prohibiting group homes from opening in most residential areas. The court held that a claim could be brought even if the plaintiff could not prove that the ordinance actually prevented it from acquiring property and operating. The ruling tracks prior case law which allow a damages claim for a prospective tenant denied housing because of her race even if she finds an apartment across the street five minutes later that is …

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