The following is a guest blog post by Alan D. Weinfeld of Parker, Milliken, Clark, O’Hara & Samuelian in Los Angeles.
Roommate listings often express a preference for a person of a certain sex, religion, or familial status — e.g., “looking for single, Christian female to share apartment, no kids or pets.” Do the operators of these listings violate fair housing laws by facilitating discrimination against potential roommates who don’t fit the preferred characteristics?
The Ninth Circuit Court of Appeals recently answered this question with a resounding “No.”
In Fair Hous. Council v Roommate.com, LLC, the Ninth Circuit held that roommate listings can’t violate the federal Fair Housing Act (FHA) or the California Fair Employment and Housing Act (FEHA), because the listings aren’t even subject to those Acts.
The court reached that conclusion by examining the FHA’s definition of a “dwelling” and determining that, because roommates aren’t living in their own “dwelling,” the FHA doesn’t apply.
The FHA prohibits discrimination on the basis of “race, color, religion, sex, familial status, or national origin” in the “sale or rental of a dwelling.” “Dwelling” as defined as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.”
The Ninth Circuit interpreted this definition of “dwelling” as applying only to an independent living unit, noting that it would be difficult to divide a single-family house or apartment into separate “dwellings” for purposes of the Act.
The court found no indication that Congress, in enacting the FHA, intended to interfere with personal relationships inside the home; rather, Congress wanted to address the problem of landlords discriminating in the sale and rental of housing.
Interpreting “dwelling” to include shared living units also would raise federal constitutional concerns because it would allow the government to restrict individuals’ ability to choose roommates compatible with their lifestyles, which would be a serious invasion of privacy, autonomy, and security.
The same constitutional concerns arise in applying California’s FEHA to shared living units; thus, the court interpreted the FEHA’s definition of “housing accommodation” to exclude such living units.
The Ninth Circuit’s decision in Fair Hous. Council v Roommate.com, LLC should provide some comfort to websites, universities, property owners, and other parties that facilitate or allow the posting of roommate listings. Based on the decision, these parties can’t be sued for violating federal or California fair housing laws by permitting listings with discriminatory preferences.
But the issue has not been completely put to rest. The fair housing councils can still seek review of the decision by the entire Ninth Circuit (en banc) or by the United States Supreme Court. Either of those courts could very well grant review, given the decision’s extensive reliance on federal constitutional issues.
To get up to speed on fair housing considerations, turn to CEB’s California Landlord-Tenant Practice, chap 2.
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