Back-to-back posts concerning the Fair Housing Act (FHA) and federal courts. Last week, in what I believe is another decision of first impression, a federal district court judge in Colorado concluded that the FHA prohibits discrimination against LGBT individuals. While the FHA prohibits discrimination because of sex (added as a protected class in 1974), familial status (1988), and/or national origin (1968), the statute says nothing about sexual orientation or gender identity and the issue had been in question for some time.
The facts here involved a lesbian couple (one of the women is transgender) with two children who, because of their “unique relationship,” had their application for a rental townhouse denied. They continued to engage with the landlord and were told their family was not welcome to rent because another family was concerned about noise and kids. In a further reply, the landlord allegedly reported that the “status” of the couple “would be the talk of the town” and there would be no opportunity to “keep a low profile.”
The legal question involved in the case was whether “sex” (as written in the FHA) included sexual orientation and gender identity. In answering the question in the affirmative, the Colorado court looked to various employment statutes and cases interpreting those laws and concluded “stereotypical norms are no different from other stereotypes associated with women, such as the way she should dress or act…and are products of sex stereotyping.”
While this is one judge in one district court, given the trend in the law, this decision should not come as a surprise. The FHA (like the laws against employment discrimination) are intended to be applied broadly and courts will look to fill in the gaps when the statute is silent. Such is the case here.
So, what is the impact for professional apartment management? Not that much. My hope is that in 2017 the vast majority of our management offices with apartments or townhomes to rent are certainly not evaluating sexual orientation when determining if an applicant can rent a home. Nevertheless, if we do, there is now at least one judge who has specifically found that LGBT individuals are covered under the FHA.
Just A Thought.