We here at the Fair Housing Defense blog have written many times that apartment owners and management cannot discriminate against an applicant because of his or her membership in a protected class. But what about a person who rents a property and, looking to share costs, seeks a roommate through an online advertisement? If a tenant seeking a roommate expresses a preference in an advertisement for a female roommate or a roommate without children, does that person violate the Fair Housing Act (FHA)? And what about the service who solicits information to create the advertisement and subsequently publishes the ad on behalf of the erstwhile roommate seeker? Those were exactly the questions addressed by the Ninth Circuit in the recently published Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216 (9th Cir. 2012).
In this case, the defendant operated an online service that assists individuals in locating roommates. The website required users to fill out a profile by answering questions regarding their sex, sexual orientation, familial status, and pet ownership. Users are specifically permitted to list their preference for roommate characteristics based on those categories. Two protected classes, of course, are sex and familial status. Also, in certain circumstances, landlords and property owners often have to make reasonable accommodations for people with, for example, service animals. In addition to the FHA, many state and local fair housing laws prevent discrimination against people based upon their sexual orientation. So, understandably, the online service’s questionnaire raises some potential issues. But does it violate the FHA?
In this circumstance: No. The Ninth Circuit concluded that the roommate relationship is so personal and intimate that potential government interference with that relationship raises significant Constitution concerns, and is unwarranted. The Court reasoned that the roommate relationship falls under the ambit of the fundamental right of intimate association, which, necessarily, also includes the right not to associate. The Court extended to roommate selection the same level of Constitutional protection afforded to “marriage, child bearing, child rearing and cohabitation with relatives.” Our roommates, the Court reasoned, have unique access to every aspect of our personal home lives, and, we, likewise, have unfettered access to every aspect of theirs. We have a right, therefore, to select our roommates based upon our personal beliefs and opinions regarding things that may be offensive, dangerous, annoying, or otherwise incompatible with our own lifestyles. Extending the FHA anti-discrimination provisions to apply to the roommate relationship would permit the government to intrude into our homes, which are “entitled to special protection as the center of the private lives of our people.” Accordingly, it is perfectly reasonable for a woman to seek only female roommates, or for an orthodox Jew who may choose to keep a kosher home to seek only roommates who have the same beliefs as they do.
Ultimately, the Court held that the online service could not be held liable for collecting and publishing information related to the roommate selection process because the roommate selection process is not governed by the FHA.
The caveat here: this case provides guidance for renter’s seeking roommates — not management companies who are leasing apartment communities.
Just A Thought.