New York Law School

Art Leonard Observations

Posts Tagged ‘Housing Discrimination’

Federal Court Rules for “Unique” Family in Fair Housing Act Case

Posted on: April 12th, 2017 by Art Leonard No Comments

A federal district judge in Colorado granted summary judgment under the Federal Fair Housing Act (FHA) on April 5 to a couple in a “unique relationship” who were turned down by a landlord who had two residential properties available for rent that would have met the needs of the couple and their family. Judge Raymond P. Moore found that in turning down two woman (one of whom is transgender) who are married to each other and their two children as tenants, the landlord had discriminated against them because of their sex, as well as their familial status, both of which are forbidden grounds of discrimination under the federal law.

The court also granted judgment to the plaintiffs under Colorado’s Anti-Discrimination Act, which explicitly bans discrimination because of sexual orientation or transgender status as well as familial status.

The landlord, Deepika Avanti, owns three rental properties close to each other in Gold Hill, Colorado. Two are single family houses, and the third is a building subdivided into two separate living spaces, referred to as “townhouses.”  As of April 24, 2015, one of the townhouses was rented to a heterosexual couple, Matthew and Chiara, and the other was being advertised for rent on Craigslist.

The plaintiffs are Rachel Smith, a transgender woman, and Tonya Smith. They had been married for five years and were living with their two children in rental housing that they had to vacate because the building was being sold and withdrawn from the rental market.  They responded to the Craigslist advertisement by emailing Avanti.  “In the email, among other things, Tonya discussed her family, including mentioning that Rachel is transgender,” wrote Judge Moore.  Avanti responded to the email, mentioning that both the townhouse and one of the single family houses, which had three bedrooms, were available for rent. She also asked Tonya to send photos of her family.  Replying by email, Tonya agreed to meet Avanti that evening and attached a photo of the Smith family.

Tonya and Rachel and their children met with Avanti that evening and got to view the townhouse and the single-family house that were available for rent. They also got to meet Matthew and Chiara, the tenants of the other townhouse.  After she returned to her home, Avanti emailed Tonya Smith twice that night.  In the first email, she told Tonya that they were “not welcome to rent the Townhouse because of Matt and Chiara’s concerns regarding their children and ‘noise.’”  In the second email, Avanti said she had talked to her husband and “they have ‘kept a low profile’ and ‘want to continue it’ that way,” so they would not rent either residence to the Smiths.

The next morning, Tonya emailed Avanti, asking what she meant by “low profile.” Avanti replied “that the Smith’s ‘unique relationship and ‘uniqueness’ would become the town focus and would jeopardize [Avanti’s] low profile in the community.”

It took the Smiths months to find a suitable place to rent. Because they had to vacate their existing residence, they moved in with Rachel’s mother for a week and had to shed possessions to fit into a small space.  The new apartment they found did not meet their needs as well as Avanti’s property would have done, due to the location.  Their new apartment placed them in a less desirable school district for the children and required a longer daily commute to her job for Rachel, although she subsequently switched to a job closer to their new apartment.

They sued in federal court, asserting claims under the Fair Housing Act and the Colorado Anti-Discrimination Act. The basis for the federal court having jurisdiction to hear the case was the federal statutory claim, which was divided into a sex discrimination claim and a familial status claim.

The more significant part of the ruling for purposes of LGBT law is the federal sex discrimination claim. Federal discrimination statutes do not at present expressly forbid sexual orientation or gender identity discrimination, but courts are increasingly willing to apply bans on sex discrimination to claims brought by GLBT plaintiffs.  Although the Department of Housing during the Obama Administration took the position that the FHA should be construed to apply to sexual orientation and gender identity discrimination, the Trump Administration has not announced a position on this.  Judge Moore’s opinion thus may be breaking new ground by granting summary judgment in favor of the Smiths on their sex discrimination claim.

Because Colorado is within the 10th Circuit, Judge Moore had to follow 10th Circuit precedent in determining whether the Smiths could sue for sex discrimination under the Fair Housing Act.  The Smiths had argued that discrimination based on “sex stereotypes” is “discrimination based on sex” under the FHA.  Moore pointed out that the 10th Circuit has followed court rulings under Title VII of the Civil Rights Act when interpreting the FHA discrimination ban, and that the 10th Circuit has an employment discrimination ruling on a claim by a transgender plaintiff, Etsitty v. Utah Transit Authority, 502 F.3d 1215 (2007).  In that case, the court ruled that “discrimination against a transsexual based on the person’s status as a transsexual is not discrimination because of sex under Title VII,” and that “Title VII protections” do not extend to “discrimination based on a person’s sexual orientation.”  However, the Etsitty opinion did recognize the possibility that a gay or transgender plaintiff might claim sex discrimination because of gender stereotyping, relying on the Supreme Court’s 1989 Title VII ruling, Price Waterhouse v. Hopkins, 490 U.S. 228, where the court held that discriminating against a woman for her failure to conform to the employer’s stereotyped views of how women should act and present themselves in a business setting could violate the statute.

Judge Moore noted that in the Etsitty opinion the 10th Circuit had “cited with approval” to Smith v. City of Salem, 378 F.3d 566 (6th Circuit 2004), a decision upholding a Title VII claim by a transgender woman who was being pressured to quit by the City’s Fire Department after confiding in a supervisor that she was transitioning.  The court held that the fact that the plaintiff is a “transsexual” was “not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”  In a 2014 decision, McBride v. Peak Wellness Center, 688 F.3d 698, the 10th Circuit has, according to Judge Moore, “implicitly recognized that claims based on failure to conform to stereotypical gender norms may be viable.”

This was enough for Moore. “In this case,” he wrote, “the Smiths contend that discrimination against women (like them) for failure to conform to stereotype norms concerning to or with whom a woman should be attracted, should marry, and/or should have children is discrimination on the basis of sex under the FHA.  The Court agrees,” he continued, finding that “such stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act (e.g., that a woman should not be overly aggressive, or should not act macho), and are products of sex stereotyping.”

Moore also stated agreement with the Smiths’ argument that “discrimination against a transgender (here, Rachel) because of her gender-nonconformity is sex discrimination. In other words,” he explained, “that discrimination based on applying gender stereotypes to someone who was assigned a certain sex (here, male) at birth, constitutes discrimination because of sex.”  So long as the argument was phrased in terms of stereotyping, Moore believed that he could rule on the claim under the FHA.  However, he cautioned, “To the extent the Smiths argue something more – that the FHA has been violated based on sex stereotyping as they have been discriminated against solely because of Rachel’s status as transgender, and that the Smiths were discriminated against because of their sexual orientation or identity – the Court declines to do so.”  Thus, the court did not hold, as such, that discrimination because sexual orientation or gender violate the FHA’s ban on sex discrimination, but embraced such a broad view of sex stereotyping that the opinion appears to have much the same effect.

As to the motion for summary judgment, Moore concluded that the “undisputed material facts” show that Avanti violated the FHA, as her reference to the Smiths’ “unique relationship” and their family’s “uniqueness” showed reliance on stereotypes “of to or with whom a woman (or a man) should be attracted, should marry, or should have a family.”

As to the “familial status” discrimination claim, there is clear precedent that it violates the FHA for a landlord to have an “adults only” policy or to discriminate against prospective tenants because they have children, so that was a clear winner. Judge Moore also found it relatively simple to rule in the Smiths’ favor on their state law claims, since Colorado explicitly forbids housing discrimination because of sexual orientation (which is defined to include “transgender status”) as well as familial status.  The next stage of the lawsuit will be to determine the damages or relief that the court might order.

The Smiths are represented by Karen Lee Loewy and Omar Francisco Gonzalez-Pagan, from Lambda Legal’s New York office, and cooperating attorneys from Holland & Hart LLP’s Denver office: Matthew Paul Castelli and Benjamin Nichols Simler.

Federal Housing Discrimination Law May Cover Some Sexual Orientation Discrimination Claims

Posted on: June 23rd, 2015 by Art Leonard No Comments

A federal judge in Alabama has ruled that some sexual orientation discrimination claims may be made under the federal Fair Housing Act (FHA), a statute that forbids sex discrimination by owners and operators of residential housing facilities.  District Judge William M. Acker, Jr., ruling June 16 in Thomas v. Osegueda, 2015 U.S. Dist. LEXIS 77627, 2015 WL 3751994 (N.D. Alabama), rejected the argument that the court would not have jurisdiction of any sexual orientation discrimination claim under the FHA.

James Earl Thomas filed suit against Carlos Osegueda, a regional director for H.U.D., and Christian Newsome, a claims investigator, for refusing to process his discrimination claim.  Judge Acker’s decision says little about the nature of the underlying claim, other than to state that Thomas claims he was discriminated against by Aletheia House, a recipient of federal housing funds, “because he is not gay.”   According to Acker, Thomas claimed that “he was discriminated against based on his conformity to male stereotypes, such as stereotypes regarding cooking and buying furniture.”  The reference to male stereotypes was undoubtedly an attempt to shoehorn his claim into the sex stereotyping theory, under which courts construing other federal sex discrimination laws have found some basis for extending protection to sexual orientation discrimination litigants.

Thomas filed a petition seeking a writ of mandamus, a court order directing Osegueda and Newsome to process his claim.  On January 26, Acker issued a memorandum opinion granting the petition and ordering Osegueda and Newsome to respond with an explanation of why a hearing on the matter was not required.  They responded on March 13, asking Judge Acker to reconsider his opinion and to dismiss Thomas’s petition for lack of jurisdiction, arguing that the FHA “does not give” the agency “jurisdiction to investigate and prosecute complaints raising allegations of discrimination based on sexual orientation.”  This required Acker to get into the question whether the FHA bans sexual orientation discrimination.

He pointed out that in the past courts had routinely dismissed sexual orientation discrimination claims under federal sex discrimination statutes, but that the Department of Housing and Urban Development (HUD), the enforcing agency for the FHA, “has taken several steps to clarify and reinforce the fact that certain acts of discrimination based on sexual orientation are in fact within its jurisdiction.”  Although Congress has never amended any of the federal sex discrimination laws to explicitly add “sexual orientation” to the forbidden grounds for discrimination, “HUD has taken an increasingly expansive view of its delegated authority under the FHA relating to discrimination based on sexual orientation,” Acker wrote.

HUD issued a guidance document in 2010 which stated that “while the [FHA] does not specifically include sexual orientation and gender identity as prohibited bases … [an] LGBT person’s experience with sexual orientation or gender identity discrimination may still be covered by the [FHA].”  On February 3, 2012, HUD “published a final regulation, the Equal Access Rule, to implement ‘policy to ensure that its core programs are open to all eligible individuals and families regardless of sexual orientation, gender identity, or marital status.’  While the new regulation made various minor regulatory revisions to effectuate the rule’s broader policy goal, the core provision of this new rule revised the eligibility requirements for HUD-assisted or insured housing to now require ‘such housing shall be made available without regard to actual or perceived sexual orientation, gender identity, or marital status.'”  In explaining the coverage for sexual orientation, the agency said, “certain complaints from LGBT persons would be covered by the Fair Housing Act . . . including discrimination because of nonconformity with gender stereotypes.”  The agency also explained that it could investigate and enforce such claims “as sex discrimination.”  HUD also published an “interpretive document” on August 20, 2014, giving as an example of such a claim the harassment of a gay man by a maintenance worker at a public housing complex because of his effeminate demeanor.

“Given these recent agency actions broadly interpreting the jurisdictional scope of HUD acting under the FHA based on sexual orientation,” wrote Acker, he would have to determine whether “HUD’s interpretation of its authority squares with the statutory language of the FHA.”  He concluded that it did, so long as HUD did not seek to assert its jurisdiction to sexual orientation claims that did not include a plausible allegation of sex stereotyping.  The sex stereotyping theory was recognized by the Supreme Court in 1989 in the case of Price Waterhouse v. Hopkins, where a masculine-acting woman was challenging an accounting firm’s refusal to make her a partner.  Since then, and most emphatically since President Obama took office in 2009, federal agencies have been advancing the sex stereotyping theory to find a basis for protecting gay and transgender people from discrimination.  The Equal Employment Opportunity Commission, which enforces Title VII of the Civil Rights Act of 1964, recently sent a memorandum to its regional offices similarly suggesting that they could accept employment discrimination claims from gay people using this theory in appropriate cases, and some federal district courts have refused to dismiss Title VII sex discrimination charges filed by gay men using this theory.

“These types of expanded protections for such individuals under the FHA is directly rooted in non-conformity with male or female gender stereotypes, and not directly derivative of sexual orientation as an independent and separate ground for protection,” wrote Acker.  “Considering the deference due by the court to agency interpretations,” he continued, “HUD’s narrow tailoring of jurisdiction for discrimination based on sexual orientation to protections for gender stereotyping in its interpretation of the FHA is a permissible reading of ‘sex.'”

However, this was no help to James Earl Thomas, who had alleged discrimination under a housing program because he “is not gay.”  “Thomas does not petition under a theory of gender non-conformity but rather relies on sexual orientation as the sole basis for discrimination separate and independent of gender,” wrote Acker, emphasizing that Thomas claimed he was discriminated against because of his “conformity to male stereotypes,” not because of a departure from such stereotypes.  “Even under HUD’s expanded interpretation of the FHA for gender stereotyping, these allegations are outside the scope of the FHA’s ‘sex’ discrimination protection and therefore HUD lacks the jurisdiction for respondents to act upon them.”

There is a certain illogic to this decision.  Surely, if a man suffers discrimination because he conforms to male stereotypes, wouldn’t that be a form of sex discrimination?  But, as Judge Acker pointed out, Thomas, who was representing himself in this case, insisted that he was suffering discrimination because “he is not gay,” and thus was claiming sexual orientation discrimination, not sex discrimination.

Turning briefly to a possible claim under the Equal Access Rule, Acker pointed out that the two named defendants did not have authority to accept and investigate discrimination claims under that rule, which applies to recipients of federal funding such as Aletheia House and is administered by a different office of the agency.  He observed that HUD had forwarded Thomas’s complaint to the relevant agency, since his charged involved a federally-assisted housing program, and since that office had not yet rejected his claim, a care for relief against a refusal to investigate would be premature.