Wednesday, November 9, 2011

Sex-plus Fair Housing Act claim survives dismissal

Here's what happened to the plaintiff: he went to look for an apartment in Queens. Plaintiff is an unmarried male. The Complaint says the Co-op Board has a policy of refusing to sell to "men who are single." According to the lawsuit, "this discriminatory conduct was a result of a bad experience with a previous male tenant who threw loud parties and smoked marijuana." Does this guy have a case under the Fair Housing Act?

The case is Lax v. 29 Woodmere Boulevard Owners, __ F. Supp. 2d ___, 2011 U.S. Dist. LEXIS 107546 (EDNY Sept 23, 2011). The Fair Housing Act prohibits discrimination on the basis of sex, among other things. This is a "sex-plus" claim, meaning the plaintiff seeks relief because the discrimination was based on his gender plus another characteristic, i.e., he is a single male. This seems to be a case of first impression. The district court says that Lax can bring the lawsuit. But it does so after reviewing Title VII cases involving "sex-plus" discrimination in employment. If Title VII recognizes sex-plus cases, why not the Fair Housing Act? Judge Bianco of the Eastern District of New York makes two observations:

First, "'sex-plus' discrimination claims are not solely limited to women and have been brought by men." Second, "gender plus marital status, the very sub-class alleged by Lax, has been recognized as a protected category in numerous discrimination cases. Although none of these cases were in the context of the Fair Housing Act, the Court finds that the Supreme Court and Second Circuit jurisprudence on 'sex-plus' claims under other discrimination statutes applies with equal force to the language of the FHA." One of the leading cases in this area is Back v. Hastings on Hudson School District, 365 F.3d 107 (2d Cir. 2004).

After Judge Bianco finds that the FHA recognizes this claim, he then holds that the Complaint states enough facts to survive a motion to dismiss. Lax did everything he was supposed to in trying to buy the apartment. It was then placed back on the market when the Co-op Board killed the deal. And, of course, someone on the board said that there was "discriminatory conduct again men who were single ... which was commonly known among building residents." Since the law does not require that Lax prove that the board denied any sale to comparable female applicants, the lawsuit may proceed.

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