APRIL IS FAIR HOUSING MONTH
This April marks the 53rd anniversary of the Civil Rights Act of 1968 (also known as the Fair Housing Act), which “prohibited discrimination concerning the sale, rental, and financing of housing based on race, religion, national origin, [and] sex” written by Senator Edward Brooke, the first African American popularly elected to the U.S. Senate.
If you missed SwedelsonGottlieb’s webinar on Civil Rights & Fair Housing in Community Associations, you can catch it here: www.LawForHOAs.com under the “hot topics” videos tab or listen to it on the HOA Show. We discuss the history, current events and the seemingly never-ending challenges that we still face today.
FAIR HOUSING NEWS
There has been recent progress on the federal level to improve Fair Housing.
President Biden announced that he is reinstating the decades-old legal standard known as “disparate impact” to align with the Supreme Court’s decision in Texas Department of Housing and Community Affairs et al v. Inclusive Communities Project, Inc. and reverse former President Trump’s gutting of the Affirmatively Furthering Fair Housing Requirement that ties federal funding to the requirement that communities further the mission of Fair Housing. Both of these initiatives are aimed at removing barriers to racial integration and addressing systematic racism.
Also, the Department of Housing and Urban Development adopted the ruling in Bostock v. Clayton County, Georgia by interpreting the Fair Housing Act to bar discrimination on the basis of sexual orientation and gender identity.
BOSTOCK V. CLAYTON COUNTY, GEORGIA
The United States Supreme Court issued a landmark employment law decision in the case of Bostock v. Clayton County, Georgia that significantly expanded protections for employees based on sexual orientation and gender identity.
Title VII of the federal Civil Rights Act of 1964 states that it is unlawful for an employer to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual’s race, color, religion, sex, or national origin.
Bostock turned on whether the word “sex” in Title VII means that the Civil Rights Act prohibits discrimination in employment only on the basis of biological sex (whether an individual is biologically male or female), or whether it also prohibits discrimination on the basis of sexual orientation and gender identity.
The case was actually a combination of three different cases that had been heard by different federal Circuit Courts.
In one case, a Georgia county child welfare advocate, who had worked for his county employer for a decade and helped his agency win national awards, was fired after he joined an extracurricular gay softball league, which his employer deemed “conduct unbecoming of a county employee.”
In another case, a New York state skydiving instructor was fired by his employer after mentioning to a female client he was gay, after she had joked that her husband might not appreciate her skydiving with another man.
In the third case, a transgender woman, who had previously presented as male, was fired after telling her funeral home employer that she planned to live and work full-time as a woman after she returned from an upcoming vacation.
The Eleventh Circuit had previously ruled that Title VII did not prohibit employers from firing employees for being gay, and had dismissed the Georgia county child welfare advocate’s suit. On the other hand, the Second and Sixth Circuit Courts had allowed the claims of the skydiving instructor and funeral home employee, respectively, to proceed. It appears that because there was a split of opinion amongst the Circuit Courts, the Supreme Court agreed to combine the cases and hear arguments.
In a move that surprised just about everyone, the Court’s majority opinion, holding that Title VII did extend to claims of employment discrimination on the basis of sexual orientation and gender identity, was written by Justice Neil Gorsuch, a conservative who had been nominated by President Trump for his seat on the bench.
The defendant county, skydiving business, and funeral home employers argued that had the government intended for Title VII to prohibit discrimination in employment on the basis of sexual orientation or gender identity, Congress would have explicitly included those as protected classes together with the other protected classes of persons who enjoy the protections of Title VII which prohibits discrimination, based on and including race, color, religion, and national origin. Because Congress had not done this, they argued, Title VII did not cover the plaintiffs’ discrimination claims.
The plaintiffs, on the other hand, argued that the actions of the employers’ in the respective cases was, in fact, discrimination on the basis of sex, because the employers had fired the employees for actions or attributes (such as being attracted to men, or presenting as a woman) that they would have tolerated in a person of another sex.
The Court examined a long line of earlier cases in which it had interpreted Title VII. In those cases, the Court had held that Title VII’s prohibition against discrimination “because of” sex meant discrimination “by reason of” or “on account of” sex. Lawyers and judges often call this “but-for causation,” meaning, in this case, that “but for” the plaintiff being of a particular sex, the employer’s decision would have been different.
As the majority in Bostock concluded, the employees’ individual characteristics of being gay or transgender were irrelevant to the Court’s analysis of whether the employers’ actions were prohibited by Title VII, because the employers’ decisions would have been different had the employees been of a different sex.
As Justice Gorsuch said, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids…It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex…Homosexuality and transgender status are inexplicably bound up with sex…To discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”
Based on the above analysis, the Court held that their employers’ actions constituted discrimination on the basis of sex, which Title VII prohibits. The employers could not avoid liability simply by citing another factor that also contributed to their decisions (for example, saying “I didn’t fire the employee for being a man, I fired him for being gay”), because the Court concluded that making an employment decision on the basis of sexual orientation or gender identity is nevertheless inherently making a decision on the basis of sex.
To the Court, it did not matter that Congress might have intended for Title VII only to apply to discrimination against women, or that issues of sexual orientation and gender identity were not at the forefront of the debate when the Civil Rights Act was adopted in the 1960s, or that Congress might have later considered separate legislation that explicitly forbade discrimination on the basis of sexual orientation or gender identity.
CALIFORNIA FAIR HOUSING & THE RECENT CHANGES TO FEDERAL FAIR HOUSING LAWS
So, what does Bostock mean for California community associations?
First, even before the Bostock decision, California law (specifically the Fair Employment and Housing Act, or FEHA) already prohibited employment discrimination on the basis of sexual orientation, gender expression, gender identity and sex stereotype. Some cities, such as San Francisco and Los Angeles, had even enacted their own local laws prohibiting discrimination against these classes of persons long before the California Legislature stepped in.
So, while Bostock is a landmark decision because it is the first time the United States Supreme Court has ruled that Title VII extends to these types of claims, the type of discrimination now prohibited under federal law was already prohibited, and therefore protected, under California law.
Second, employees claiming employment discrimination can bring claims for violations of both state and federal laws. In most cases, California employees will file claims with the state Department of Fair Employment and Housing (DFEH), which affords employees more attractive filing procedures than the federal Equal Employment Opportunity Commission (EEOC).
However, the DFEH and EEOC participate in a workshare arrangement by which charges filed with one agency are automatically forwarded to the other agency. Therefore, what may start out as a claim based purely on a violation of state law could end up being investigated by a federal employment agency as a violation of federal law, as well. On that note, for housing discrimination, HUD transfers federal claims to the DFEH for the state to address.
Third, some community associations have obligations as employers under both state and federal law and in California associations are deemed housing providers. Boards should be aware of these changes, and directors should know they cannot delegate their duty to prevent unlawful discrimination to, for example, a manager or management company. In addition, community associations can be held liable for the discriminatory actions of their employees when they are acting within the scope of their job duties or residents if they knew or should have known about the discrimination and failed to take action against it.
Fourth, even if a community association does not have employees of its own, it still has an obligation to provide a working environment that is free from discrimination and harassment for third-party providers, including for the employees of its management company, landscape company, and any other service provider that comes to the property or works with the residents. Therefore, boards have a duty to at the very least investigate any complaints they receive regarding discrimination or harassment, and they should impress on any management company or vendor with which they do business that they maintain a zero-tolerance policy.