The Lawletter Vol 34, No 8, September 21, 2010
Dora Vivaz—Senior Attorney, Civil Rights
The Fair Housing Act ("FHA") prohibits discrimination against any person based on a protected status such as race, gender, or disability. See 42 U.S.C. §§ 3601–3631. A plaintiff can establish a violation under the FHA by proving discrimination in one of several forms: (1) disparate treatment or intentional discrimination; (2) disparate impact of a law, practice, or policy on a covered group; or (3) in the case of disability discrimination, by demonstrating that the defendant failed to make reasonable accommodations in rules, policies, or practices so as to afford people with disabilities an equal opportunity to live in a dwelling.
Under the first form, courts analyze claims of discrimination under the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie case of intentional discrimination, a plaintiff must present evidence that animus against the protected group was a significant factor in the position taken by the defendant. If the plaintiff makes out a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. If the defendant meets that burden, then the burden shifts back to the plaintiff to prove that the defendant intentionally discriminated against him or her on a prohibited ground and that the given reason is a mere pretext.
In a recent case, the court found that a challenged County ordinance was discriminatory on its face because it imposed restrictions and limitations on a class of disabled individuals, people seeking treatment to recover from drug and alcohol addiction, while the restrictions were not imposed on others seeking to live in area apartment houses, multiple dwellings, fraternity and sorority houses, or dormitories, or on any other group of unrelated individuals living together. Human Res, Research & Mgmt. Group v. County of Suffolk, 687 F. Supp. 2d 237, 253-56 (E.D.N.Y. 2010). While the parties did not dispute that resolution of the plaintiffs' claim rested on whether the County had an adequate justification for the disparate treatment of the affected class of disabled individuals, they did dispute what level of scrutiny the court was to apply in evaluating the adequacy of the County's proffered justifications. Not surprisingly, while the defendant argued for a rational-basis review, the plaintiffs argued for a higher level of scrutiny.
The district court began by noting that while the Second Circuit had not directly decided what level of scrutiny should apply to an FHA disparate treatment claim against a governmental entity, it had, in the context of disparate impact FHA claims, applied a heightened scrutiny, requiring a defendant to prove that, both in theory and in practice, its actions furthered a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect. The court acknowledged that there was a split among the circuits as to the appropriate standard for evaluating the validity of state statutes that are facially discriminatory under the FHA, but it agreed with those courts that apply a heightened scrutiny to FHA disparate treatment claims. The court noted, however, that the Eighth Circuit stood alone in subjecting statutes that facially discriminate against the disabled to a rational-basis scrutiny.
By way of explanation, the rational-basis standard is the one applied to constitutional claims regarding disability discrimination under the Equal Protection Clause, under which the disabled are not considered a "suspect class" for constitutional analysis purposes. Under the rational-basis standard, a law will be upheld if it is even plausibly rationally related to a legitimate state interest, and the courts may not pass judgment upon the wisdom, fairness, or logic of legislative decisions.
The court went on to note that all of the other circuits that had considered the appropriate standard—including the Sixth, Ninth, and Tenth Circuits—have explicitly rejected the rational-basis test based on the fact that the FHA specifically makes the disabled a protected class for the purposes of statutory claims, even if they are not a protected class for constitutional purposes. Local governmental units must therefore be prepared to meet heightened scrutiny if they wish to impose different standards on persons in protected classes.