Year in Review: Fair Housing Developments in 2011

In this Special Issue, we'll review fair housing developments on the federal, state, and local levels in 2011.

Last year saw significant activity in Congress and in legislative bodies across the country to address housing discrimination against lesbian, gay, bisexual, and transgender (LGBT) individuals. We'll review legislative developments along with HUD initiatives to combat housing discrimination based on sexual orientation and gender identity or expression.

We'll also review some court rulings from last year to see how communities have fared when accused of a fair housing violation. The question-and-answer format illustrates the lessons to be learned from how the courts handled allegations of disability discrimination, sexual harassment, and other sources of fair housing liability.

Finally, a special treat this month: Instead of our usual COACH's Quiz, we're publishing a word search puzzle, courtesy of a member of our Advisory Board, fair housing expert Nadeen Green, Senior Counsel with For Rent Media Solutions. Hope you enjoy the puzzle—and best wishes for a happy, healthy (and complaint-free) 2012!

SEXUAL ORIENTATION AND GENDER IDENTITY

There has been a growing trend to outlaw discrimination based on sexual orientation and gender identity or expression, which some fair housing experts believe will be the next protected class to be added to the federal Fair Housing Act (FHA).

On the federal level, developments in Congress and HUD to expand fair housing protections based on sexual orientation and gender identity or expression include:

Proposed FHA Amendment: In September 2011, federal lawmakers proposed legislation to amend the Fair Housing Act (FHA) to outlaw discrimination against lesbian, gay, bisexual, and transgender Americans in the housing and credit markets. The bill, the Housing Opportunities Made Equal (HOME) Act, would prohibit housing discrimination on the basis of sexual orientation, gender identity, marital status, or source of income.

“It's hard to believe that in 2011, any law-abiding, tax-paying American who can pay the rent can't live somewhere just because of who they are,” Sen. John Kerry, one of the bill's sponsors, said in a statement. “Housing discrimination against LGBT Americans is wrong, but today in most states there isn't a thing you can do about it. This legislation would end discrimination that continues to hurt people.”

HUD Regulatory Action: In November 2011, HUD Secretary Shaun Donovan became the first sitting Cabinet Secretary to speak before the National Center for Transgender Equality (NCTE) Awards Ceremony. In a blog posting, he noted that HUD, with the leadership of Assistant Secretary for Fair Housing and Equal Opportunity, John Trasviña, has been working toward achieving progress to advance equality for transgender people. Those efforts include:

• Proposing new regulations to ensure HUD's programs are open to all, regardless of sexual orientation or gender identity. Among other things, the proposed regulation would clarify that the term “family” includes LGBT individuals and couples as eligible beneficiaries of public housing and voucher programs. The proposed rule also would prohibit owners and operators of HUD-funded or -insured housing from inquiring about the sexual orientation or gender identity of an applicant.

• Conducting the first-ever national study of housing discrimination based on sexual orientation to better understand discrimination against members of the LGBT community.

• Pursuing cases alleging housing discrimination because a person's identity or expression didn't conform to gender stereotypes. The agency has provided staff with guidance that instructs them to assess whether any LGBT-based housing discrimination complaints could be pursued through the FHA or state or local discrimination laws. With resources and efforts helping uncover discrimination that had gone unreported for too long, last year's reports of LGBT housing discrimination increased 15 times compared to the year before, he said. “This doesn't mean that there's more discrimination,” according to Donovan, “it means that people are now coming forward and speaking out.”

Finally, Donovan pointed to the agency's efforts to educate the LGBT community about what their rights are. HUD's Live Free fair housing education and outreach campaign targeted print and social media with videos, podcasts, and ads that address discrimination due to gender stereotypes and let people know how to report it.

State and Local Developments

In 2011, four states and a number of county, municipal, and local governments amended fair housing laws to ban housing discrimination based on gender identity or expression—either adding or supplementing existing provisions to ban discrimination based on sexual orientation.

Massachusetts: In late November 2011, Massachusetts became the 16th state to ban discrimination against transgender individuals in housing, education, employment, and credit. The transgender equal rights law modifies existing law that bans discrimination based on sexual orientation to protect all individuals from discrimination, regardless of gender identity. There are approximately 33,000 transgender residents living in Massachusetts, according to state officials.

The law also provides additional civil rights and protections from hate crimes. The new law will increase the state's ability to prosecute criminal conduct in the form of hate crimes against transgender individuals, a community that has historically experienced disproportionate levels of harassment and violence.

“No individual should face discrimination because of who they are,” Gov. Deval Patrick said in a statement. “This legislation gives Massachusetts the necessary tools to stop hate crimes against transgender people and to treat others fairly. I am proud to sign it.”

Connecticut: In June 2011, Connecticut added gender identity or expression to its list of protected characteristics under state fair housing law, which already includes sexual orientation. The new law, which took effect on Oct. 1, 2011, defines “gender identity or expression” as “a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth.”

In a statement, Gov. Dannel P. Malloy said, “This bill is another step forward in the fight for equal rights for all of Connecticut's citizens, and it's the right thing to do. It's difficult enough for people who are grappling with the issue of their gender identity, and discrimination against them has no place in our society. Connecticut has led the way in other civil rights issues and I'm proud to be able to support and sign this bill.”

Nevada: In June 2011, Nevada law was amended to ban housing discrimination based on sexual orientation and gender identity or expression, effective Oct. 1, 2011. Under the new law, “gender identity or expression” means “a gender related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth.” The law defines “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, homosexuality or bisexuality.”

Hawaii: In May 2011, Gov. Neil Abercrombie signed into law House Bill 546, to prohibit discrimination on the basis of gender identity or expression as a public policy matter and specifically with regard to employment. The new law adds to provisions already banning housing discrimination based on “sex, including gender identity or expression,” and sexual orientation.

On the local level, similar provisions have been added to fair housing laws across the country. In December 2011, for example, lawmakers in Howard County, Md., voted to become the third jurisdiction (along with Baltimore City and Montgomery County) in Maryland to prohibit discrimination on the basis of gender identity and expression. If signed into law as expected, the measure will ban discrimination against transgender and gender-nonconforming people in housing, employment, law enforcement practices, public accommodations, credit, and health and social services, according to the National Gay and Lesbian Task Force.

Also in December, the city of Columbia, Mo., became the sixth local jurisdiction in Missouri to ban discrimination based on gender identity in employment, housing, and public accommodations, the Task Force reports. Columbia joins Kansas City, St. Louis, Clayton, Olivette, and University City in prohibiting gender identity discrimination in the state.

WHAT'S NEW IN THE COURTS?

In 2011, courts across the country issued rulings addressing a wide variety of fair housing concerns. Here are some highlights, explaining how the courts answered some questions about compliance with fair housing law.

Reasonable Accommodations

Q: Must a community grant a parking request when the resident hasn't paid his condo fees?

A: No, according to a New Jersey court, which ruled that the resident's parking accommodation request was not reasonable.

The resident claimed that the condo association had illegally refused to grant him a disability accommodation to allow him to resume parking his car in the parking lot where he was a unit owner. The association had revoked his parking privileges because he was substantially in arrears on his monthly assessment fees.

Following an investigation, the state civil rights agency found no probable cause to support his claim, and the appeals court upheld the decision.

Under fair housing law, housing providers may be liable for refusing to make a reasonable accommodation in rules, policies, practices, or services, when necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling. However, the duty to provide a reasonable accommodation for a resident with a disability does not necessarily entail the obligation to do everything possible to accommodate that person.

Although a community may be liable for failing to provide a resident with a disability a parking space accommodation, the resident's accommodation request was unreasonable. The condo association collected assessment fees to maintain the common areas of the community, including the parking lot, but the resident didn't make his required payments for several months before the association revoked his parking privileges.

Furthermore, the community didn't single him out for this enforcement mechanism—the community also revoked the parking privileges of many other residents who were similarly in arrears.

Finally, the resident wasn't declared disabled until after the community had already informed him that he wasn't permitted to park in the complex's parking area. Once he invoked his disability status, the community appropriately requested medical documentation from him to confirm that disability. He initially furnished documents from the Social Security Administration and state motor vehicle commission, but he inexplicably waited a year before providing the requested documentation.

The association's offer of a payment plan to address the resident's mounting arrears also showed there was no probable cause to find a violation. Although he declined the offer, the payment plan proposed demonstrated that the association reasonably tried to resolve the parking issue with the resident and accommodate his needs without unduly compromising the interests of other unit owners. Although the association may have had other options at its disposal to enforce his obligation to pay his assessments, its initial responses to his requests for accommodations were not discriminatory or unreasonable [Shearn v. Victoriana Condominium Assn., November 2011].

Disability

Q: Can someone who isn't disabled sue for disability discrimination under the FHA?

A: Yes, according to a federal court in Florida, which ruled that the son of a disabled applicant could sue under the FHA.

According to his complaint, the son and his 95-year-old mother each wanted to rent a unit at the apartment community. Along with the applications, they requested a reasonable accommodation to the community's “no pets” policy to allow the mother, who allegedly had physical and mental disabilities, to keep a medically prescribed emotional support dog. In addition, the proposed lease for the son was conditioned upon approval of his mother's application. Allegedly, the community rejected the mother's application, but left open the possibility of approving the son's application if he would remove the condition regarding his mother's lease.

The son sued the community for disability discrimination, but the community asked the court to dismiss the complaint. The community argued that the son had no right to sue under the federal fair housing law because he had no disability and his application was never denied.

The court denied the request, leaving the door open to further proceedings. Although the son didn't have a disability, federal and state laws specifically gave him the right to sue as a “person associated with” an individual with a disability. Based on the allegations in the complaint, the son was clearly associated with his mother, and his application to rent was contingent on the approval of the application of his mother [Falin v. Condominium Assn. of La Mer Estates, Inc., November 2011].

Sex Discrimination

Q: Can a community face liability for allegedly excluding single men?

A: Yes, according to a federal court in New York, which ruled that a single man could pursue a sex discrimination claim under federal fair housing law.

According to the complaint, the unmarried man signed a contract to pay $200,000 in cash to buy a cooperative unit in New York. The unit was owned by an elderly couple, and all the negotiations were with the couple's son. The sale was conditioned on approval by the co-op's board of directors.

Allegedly, the board notified the proposed buyer that his application was denied, without giving any reason. Eventually, the buyer said that the owners' son told him that the board rejected his application because of his single male status. Allegedly, the son said that the board had a pattern of discriminatory conduct against single men because of a bad experience with a prior male resident who threw loud parties and smoked marijuana.

After the proposed buyer complained, the board allegedly explained that his application had been rejected because it was too low—some $19,000 below the asking price. He said that the board didn't respond when he indicated his willingness to pay more for the unit.

The proposed buyer sued the co-op for sex discrimination under the FHA. The co-op asked the court to dismiss the case, arguing that he couldn't pursue a discrimination claim based on status as a single male because federal fair housing law didn't protect marital status.

The court rejected the argument, ruling that he could file a claim based on his membership in a class of single males, who are a protected class under the FHA.

The proposed buyer raised a plausible “sex plus” housing discrimination claim—that is, discrimination against him as a member of a specific subset of a protected class. Specifically, he claimed that the FHA explicitly protects against discrimination based on gender, so it also prohibits discrimination based on marital status in conjunction with gender.

Courts have long recognized that a discrimination claim may be based on a membership in a class based on gender plus another characteristic, when gender itself is a protected category. Sex plus discrimination occurs when an individual—either a man or a woman—is subject to disparate treatment based on gender in conjunction with a second characteristic. Although those cases generally involved discrimination in employment, not housing, the court ruled that claims of sex discrimination based on the combination of gender plus marital status may be pursued under the FHA [Lax v. 29 Woodmere Blvd. Owners, Inc., September 2011].

Sexual Harassment

Q: Must owner pay $500,000 in damages for sexual harassment?

A: No, according to an Ohio appeals court, which overturned a $500,000 judgment in favor of a female resident for alleged sexual harassment during her one-week residency.

The case was filed by a 20-year-old resident who rented the unit from the 58-year-old owner of 50 rental units. She moved into the unit with her 17-year-old sister on a Sunday. On Sunday and Monday, the owner visited the unit several times to fix the door, which had been damaged by a prior resident.

On Tuesday, the resident, who was out of work at the time, and her sister did some work for the owner—cleaning out some units and carrying items to the Dumpster. During conversations, the resident mentioned that she had taken computer classes and offered to help the owner with some computer problems.

The next day, the resident said she went to fix the computer at the owner's home, which was located in a house between the two apartment complexes he owned. Allegedly, she noticed that a pornographic show was on television. Although he denied it, she said he asked her to watch it with him, but she refused and asked that he turn it off, but that he did not do so. During the time she worked, according to the resident, the owner made sexually suggestive comments, repeatedly asked her to engage in sex, and touched her buttocks and arms. The owner denied the allegations.

The next day, the resident said that she made an unsuccessful attempt to get help from the police, and then contacted a fair housing organization. After discussing the matter, she said they agreed that she would try to record her interactions with the owner. A family member bought her a tape recorder, and she returned to the owner's home to work for him on Friday with the tape recorder hidden in her bra.

Allegedly, she stayed for several hours—and taped their discussions in which she elicited suggestive, sexually harassing comments from the owner. She moved out over the weekend and sued him for sexual harassment.

During the six-day trial, the tapes were played to the jury, despite the owner's objection. Ultimately, the jury sided with the resident, awarded her $150,000 in compensatory damages—$50,000 each for a hostile environment housing claim, a quid pro quo housing claim, a hostile environment employment claim—and $50,000 punitive damages. The jury also awarded more than $43,000 for compensatory and punitive damages to the fair housing organization, which filed the claim on her behalf. In addition, the court awarded attorney's fees of nearly $238,000 to the resident, the organization, and the state civil rights commission, plus interest.

In December 2011, the appeals court overturned the decision and sent the case back for a new trial. The court ruled that the damage award was excessive and seemed to have been given under the influence of passion or prejudice. The allegedly harassing remarks, “while crude and uncalled for,” took place on just two days, for a few hours, during her one-week residency. On one of those two days, she returned of her own volition for the sole purpose of recording the owner, and a number of her comments appear to have been designed to elicit inappropriate remarks. The court said that evidence of actual damages was minimal.

The court refused to dismiss her hostile work and housing environment claims, ruling that further proceedings were needed to determine whether the owner's alleged conduct amounted to sexual harassment. Although it allegedly occurred on only two occasions, her allegations of inappropriate touching—along with his comments—could show that the alleged harassment was severe or pervasive. Further proceedings were also needed to determine whether she could be considered his employee.

Nevertheless, the court dismissed the quid pro quo harassment claim, ruling that there was no evidence that the owner took any adverse actions against her or promised any favors conditioned on her acquiescence to any alleged sexual demands [McDonald v. Burton, December 2011].

Familial Status

Q: Could a community face liability for limiting housing to students?

A: Yes, according to a federal court in Illinois, which ruled that a community could be liable for discrimination based on familial status.

The case was filed by a fair housing organization, which conducted fair housing tests after receiving a complaint from a resident that the community refused to rent units to individuals who were not students at Northwestern University.

During the investigation, the organization allegedly arranged for three testers to make rental inquiries. According to the organization, the first, who represented that she was a Northwestern student looking for a three-bedroom unit for herself and two roommates, was shown two units.

The second called and said that her husband was starting the university in the fall, but the owner responded that the building wasn't suitable for families and that if she had a family she would be unhappy there.

When the third tester called, he said he was the second tester's husband, was starting Northwestern in the fall, and was interested in renting a three-bedroom unit. The tester said that the owner asked about his family, and he disclosed that he had a 5-year-old daughter. Allegedly, the owner told the tester that he didn't think he would be happy with the apartment, which was designed for students, not for families.

The fair housing organization sued the community, alleging housing discrimination under the FHA based on familial status. The community asked the court to dismiss the case.

The court refused to dismiss the case, ruling that the allegations in the complaint raised a potential fair housing violation based on familial status.

Under the FHA, it is unlawful to discriminate or to make any statement that indicates any preference, limitation, or discrimination on the basis of familial status. The standard is whether the statement suggests to the “ordinary listener” that the speaker is “indicating” a preference in violation of federal fair housing law.

In its complaint, the fair housing organization claimed that the owner made statements to the testers that could lead an ordinary listener to believe either that the community has a discriminatory policy against renting to people with families or that it indicates a preference against renting to families with children. Alleged comments that the building wasn't suitable for families and that it was designed for students—not families—could lead an ordinary listener to believe that the community preferred not to rent to people with families [Interfaith Housing Center of the Northern Suburbs v. Bernsen, July 2011].

Fair Housing Act: 42 USC §3601 et seq.