IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. Case No

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Case No MIAMI VALLEY FAIR HOUSING CENTER, INC., Plaintiff-Appellant v. THE CONNOR GROUP, Defendant-Appellee BRIEF OF AMICI CURIAE AARP AND THE NATIONAL ORGANIZATION FOR WOMEN FOUNDATION, FAMILY EQUALITY COUNCIL, THE NATIONAL COMMUNITY REINVESTMENT COALITION, THE COALITION ON HOMELESSNESS AND HOUSING IN OHIO (COHHIO), THE OHIO POVERTY LAW CENTER AND THE REGIONAL LEGAL AID PROGRAMS IN OHIO (ADVOCATES FOR BASIC LEGAL EQUALITY, LEGAL AID SOCIETY OF CLEVELAND, LEGAL AID SOCIETY OF COLUMBUS, COMMUNITY LEGAL AID SERVICES, SOUTHEASTERN OHIO LEGAL SERVICES, LEGAL AID SOCIETY OF SOUTHWEST OHIO, AND LEGAL AID OF WESTERN OHIO), AND PROGRESSOHIOEDUCATION, INC. (POE) IN SUPPORT OF APPELLANT AND URGING REVERSAL On Appeal from the United States District Court, Southern District of Ohio No. 3:10-cv-83 (Hon. Walter H. Rice) Rachel K. Robinson (Bar # ) Rachel K. Robinson, Attorney at Law 57 Jefferson Avenue, Suite G100 Columbus, Ohio Tel: Joseph V. Maskovyak Ohio Poverty Law Center 555 Buttles Ave. Columbus, OH Tel: Fax: Susan Ann Silverstein AARP Foundation Litigation Michael Schuster AARP 601 E Street, N.W. Washington, D.C Tel: Fax: Attorneys for Amici Curiae

2 RULE 26.1 CORPORATE DISCLOSURE STATEMENT Amici the National Organization for Women Foundation, Family Equality Council, the National Community Reinvestment Coalition, the Coalition on Homelessness and Housing in Ohio (COHHIO), the Ohio Poverty Law Center and the regional legal aid programs in Ohio (Advocates for Basic Legal Equality, Legal Aid Society of Cleveland, Legal Aid Society of Columbus, Community Legal Aid Services, Southeastern Ohio Legal Services, Legal Aid Society of Southwest Ohio, and Legal Aid of Western Ohio), ProgressOhioEducation, Inc. (POE) and AARP ( Amici ) are tax-exempt nonprofit organizations. Amici are not subsidiaries or affiliates of publicly owned corporations, and therefore no publicly held company owns 10% or more of the stock of any amici. Dated: June 22, 2012 Rachel K. Robinson (Bar # ) i

3 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT... i TABLE OF AUTHORITIES... iii STATEMENT OF INTEREST OF AMICI CURIAE... 1 INTRODUCTION AND SUMMARY OF ARGUMENT... 5 FACTUAL BACKGROUND... 7 ARGUMENT I. CONGRESS INTENDED TO PROHIBIT ALL ADVERTISING THAT UNDERMINES THE BROAD GOALS OF THE FAIR HOUSING ACT II. THE ADVERTISEMENT GREAT BACHELOR PAD!... OUR ONE BEDROOM APARTMENTS ARE A GREAT BACHELOR PAD FOR ANY SINGLE MAN LOOKING TO HOOK UP VIOLATES 3604(c) BECAUSE IT CLEARLY INDICATES A PREFERENCE OR LIMITATION BASED ON SEX AND FAMILIAL STATUS A. The Bachelor Ad Violates Section 3604(c) Under Clearly Established Case Law, Interpretations of the Agency Charged with the Enforcement of the Statute, and Guidance Provided by its Own Industry As a Matter of Law B. The Trial Court Committed Reversible Error by Failing to Properly Instruct the Jury as to the Standard for Determining A Violation of 3604(c) CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES Cases Betsey v. Turtle Creek Ass'n, 736 F.2d 983 (4th Cir. 1984)... 8 Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009) Campbell v. Robb, 162 Fed. Appx. 460 (6th Cir. 2006)... 13, 17-18, 19, Cason v. Rochester Hous. Auth., 748 F.Supp (W.D.N.Y. 1990) Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995) Dep t of Hous. and Urban Dev v. Duncan, No , 4 (HUD ALJ Sept. 15, 2009), available at portal.hud.gov/hudportal/documents/huddoc?id=doc_14507.pdf Dep t of Hous. and Urban Dev. ex rel. Stover v. Gruzdaitis, No , 1998 WL , at *3 (HUD ALJ Aug. 14, 1998) Housing Opportunities Made Equal v. Cincinnati Enquirer, Inc., 943 F.2d 644 (6th Cir. 1991) , 17, 18, 19 Jancik v. Dep t of Hous. and Urban Dev., 44 F.3d. 553 (7th Cir. 1995) Mayers v. Ridley, 465 F.2d 630 (D.C. Cir.1972)... 12, iii

5 Maziarz v. Hous. Auth., No. 3:10-CV-2029, 2012 U.S. Dist. LEXIS (Dist. Ct. Conn. Feb. 27, 2012) Meyer v. Bear Rd. Assocs., 124 F. App'x. 686 (2d Cir. 2005) Meyer v. Holley, 537 U.S. 280 (2003) Ojo v. Farmers Group, 600 F.3d 1205 (9th Cir. 2010) Ragin v. N. Y. Times Co., 923 F.2d 995 (2d Cir. 1991)... 18, 19, 25 Soules v. United States Dep't of Housing & Urban Dev., 967 F.2d 817 (2d Cir. 1992)... 18, 25 Southern California Housing Rights Center v. Krug, 564 F.Supp.2d 1138 (C.D. Cal. 2007) Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990) Stewart v. Furton, 774 F.2d 706 (6th Cir. 1985) Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972) Tyus v. Urban Search Mgmt., 102 F.3d 256 (7th Cir. 1996) United States v. Hunter, 459 F.2d 205 (4th Cir. 1972)... 12, 14, 15, 16 United States v. Space Hunters, Inc., 429 F.3d 416 (2d Cir. 2005) iv

6 Williamson v. Lee Optical Co., 348 U.S. 483 (1955) Statutes, Regulations and Statutory History 24 C.F.R. PART C.F.R (2012) C.F.R (b) C.F.R (d) CFR (1995) CFR (1995) U.S.C. 2000a(b)(1) U.S.C. 2000e-3(b)... 15, U.S.C , U.S.C. 3603(b).... 6, U.S.C. 3604(a)-(d) U.S.C. 3604(c)... passim Fair Housing Amendments Act of 1988, Pub. L. No , 102 Stat (1988) (codified at 42 U.S.C et seq.) CONG REC (1968) CONG REC (1968) CONG REC (1968) CONG REC (1968) Hearings on H.R before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 100th Cong., 1st Sess. (1987) v

7 Other Authorities Gregory Acs & Austin Nichols, The Urban Institute, An Assessment of the Income and Expenses of America s Low-Income Families Using Survey Data from the National Survey of America s Families (September 28, 2006), available at urban.org/ UploadedPDF/411382_ surve.pdf Edward Allen, Six Years After Passage of the Fair Housing Amendments Act: Discrimination Against Families with Children, 9 Admin. L. J. Am. U. 297 (1995)...5, 9 Abby Duly, Consumer Spending for Necessities, 36 Consumer Expenditure Survey Anthology (2003), available at csxanthol03.pdf Farnsworth-Ricks Management Company, The Manager s Report, farnsworth-ricks.com/?page=llsnewsletter&cpage= 0&ntype= O&nname= AZ-O (last visited June 20, 2012) Rodney Harrell, et al., AARP Public Policy Institute, Multigenerational Households are Increasing (2011), available at aarp.org/rgcenter/ppi/econ-sec/fs221-housing.pdf Rodney Harrell & Ari Houser, AARP Public Policy Institute, State Housing Profiles: Housing Conditions and Affordability for the Older Population (3rd ed. 2011), available at rgcenter/ppi/liv-com/aarp_housing2011_full.pdf....7, 8 National Fair Housing Advocate Online, Fair Housing Council wins $7,500 from Louisville landlords advertising ideal for single older person (August 2003), available at cfm? method=page.display&pageid=3464 (last visited June 20, 2012) Robert G. Schwemm, Discriminatory Housing Statements and 3604(c): A New Look at the Fair Housing Act s Most Intriguing Provision, 29 Fordham Urb. L.J. 187 (2001)... 14, 16 vi

8 Southern California Multiple Listing Service, Fair Housing and the Multiple Listing Service, PoliciesProcedures/FairHousing.pdf U.S. Dep t of Commerce, Grandparents Day 2009: Sept. 13, Census Newsroom, (July 13, 2009), releases/archives/facts_for_features_special_editions/cb09-ff16.html U.S. Dep t of Hous. and Urban Dev., Worst Case Housing Needs 2009: A Report to Congress (February 2011) , 22 Vermont Law School, Words and Phrases that Violate Fair Housing Law, (last visited June 20, 2012) Jeffery A.Willis, Apartment Available - Perfect for a Single [Lawsuit] How to Avoid Legal Issues in Rental Advertisements, The National Law Forum (March 15, 2010), apartment-available-perfect-single-lawsuit-how-to-avoid-legalissues-rental-advertisements vii

9 STATEMENT OF INTEREST OF AMICI CURIAE AARP is a nonpartisan, nonprofit membership organization dedicated to addressing the needs and interests of people age fifty and older. AARP is deeply concerned about the fair housing rights of its members and the ability of the oldest and most vulnerable portion of the population to have access to appropriate housing options in their community and neighborhoods of choice. AARP s fair housing advocacy has included participation in fair housing litigation as amicus curiae and as counsel for litigants asserting their fair housing rights. AARP has an interest in vigorous enforcement specifically of the Fair Housing Act advertising provision. As people age they become participants in the housing market in order to accommodate their changing household compositions, lifestyles, or physical or cognitive needs, and their desire and right to age in place in their homes integrated in the community of their choice should not be thwarted by discriminatory statements and advertising. The National Organization for Women Foundation ( NOW Foundation ) is a 501(c) (3) organization devoted to achieving full equality for women through education and litigation. The NOW Foundation focuses on a broad range of women s rights issues, including economic justice, pay equity, racial discrimination, women s health and body image, women with disabilities, reproductive rights and justice, family law, marriage and family formation rights of 1

10 same-sex couples, representation of women in the media, and global feminist issues. Access to affordable housing by women and their families is a critical component of economic justice and many other aspects of women's equal rights. The NOW Foundation is affiliated with the National Organization for Women, the largest feminist grassroots organization in the U.S., with hundreds of chapters in all 50 states and the District of Columbia and hundreds of thousands of contributing members and supporters. Family Equality Council, founded in 1979, is a national nonprofit, nonpartisan organization working on behalf of the 1 million parents who are lesbian, gay, bisexual and transgender (LGBT) raising more than 2 million children across the country. Family Equality Council works to achieve social and legal equality for LGBT families by providing direct support, educating the American public, and advancing policy reform that ensures full recognition and protection for all families under the law at the federal, state and local levels. Family Equality Council is particularly concerned with the ability of families to access safe and affordable housing in communities and neighborhoods of their choice without fear of discrimination based on familial status. The National Community Reinvestment Coalition (NCRC) is a nonprofit public interest organization founded in NCRC, both directly and through its network of six hundred community-based member organizations, works to increase 2

11 access to basic banking services including credit and savings, and to create and sustain affordable housing, job development and vibrant communities for America's working families. NCRC, through its National Neighbors civil rights program, seeks to advance fair housing, fair lending and open housing practices nationwide and actively assists in efforts to affirmatively further fair housing and eliminate discrimination that is detrimental to the economic growth of low to moderate income and traditionally underserved communities. The Ohio Poverty Law Center and the regional legal aid programs in Ohio (Advocates for Basic Legal Equality, Legal Aid Society of Cleveland, Legal Aid Society of Columbus, Community Legal Aid Services, Southeastern Ohio Legal Services, Legal Aid Society of Southwest Ohio, and Legal Aid of Western Ohio) are nonprofit law offices that provide free civil legal services to low-income persons and seniors in a broad range of substantive legal issues, including housing and fair housing. More than two million Ohioans are income eligible for legal aid. Many are members of classes protected by the Fair Housing Act: minorities, families with children including ones headed by a single parent, and persons with disabilities. As legal aid clients struggle to secure and retain affordable housing, discrimination in housing further limits their housing choices and can result in domestic and economic instability which increase the likelihood of becoming homeless. Legal aid provides outreach, education and direct representation of 3

12 tenants and thus is positioned to observe the effects of housing discrimination and provide the Court with information regarding how the issues in this case adversely and impermissibly impact the availability of housing choices to our vulnerable client population. ProgressOhioEducation, Inc. (POE) is a 501(c) (3) organization devoted to working with local and state organizations to provide education, technology and earned media support, as well as litigation on progressive issues. POE focuses on a multi-issue platform linking local and state based groups on issues including economic justices issues, civil rights and discrimination issues, LGBT issues, environmental justice issues, voter rights issues, healthcare rights issues, housing and payday lending issues, and other progressive state-based issues. The organization provides online and offline tools to help educate and link local and state organizations through technology, coalition building, partnership and training. POE has a large Ohio membership and is affiliated nationally with U.S. Action Education Fund and ProgressNowEducation. The Coalition on Homelessness and Housing in Ohio is a non-profit corporation organized to advocate for the end of homelessness and for the availability of decent, safe, fair, affordable housing particularly for low income Ohioans. COHHIO has more than 600 organizational members throughout the State of Ohio, including numerous housing and service providers, which work with 4

13 and on behalf of persons whom fall within the classes protected by the Fair Housing Act: minorities, families with children including ones headed by a single parent, and persons with disabilities. COHHIO and its members are particularly concerned with the ability of Ohioans to access safe and affordable housing in communities and neighborhoods of their choice without fear of discrimination. COHHIO also provides fair housing information, education and enforcement services throughout Ohio with the support of the U.S. Department of Housing and Urban Development, the City of Shaker Heights, the City of Canton, and the Ohio Civil Rights Commission. INTRODUCTION AND SUMMARY OF ARGUMENT Congress enacted the Fair Housing Act ( FHA or Act ) to provide, within constitutional limitations, for fair housing throughout the United States. 42 U.S.C In adding familial status as a protected class to the Act, Congress responded to a growing wave of research and awareness that discrimination against families with children was a significant factor in the positive relationship between family status and poverty. Edward Allen, Six Years After Passage of the Fair Housing Amendments Act: Discrimination Against Families with Children, 9 Admin. L. J. Am. U. 297, (1995). Central to the goal of eliminating housing discrimination, the FHA bans the making of any statement [W]ith respect to the sale or rental of dwellings that indicates any preference, 5

14 limitation, or discrimination based on a protected class. 42 U.S.C. 3604(c). The provision barring discriminatory statements is critical to eliminating the barriers that might deter people from even inquiring about homes that are required to be available to them on an equal basis, to prevent the psychic injury caused to members of the protected classes by being exposed to discriminatory statements, and to rebut any public impression that segregation of the protected classes is permissible. These goals are so paramount that the FHA mandates that they be achieved through enforcement of 3604(c) even where the dwelling units themselves are exempted from coverage of the FHA. 42 U.S.C. 3603(b). The landlord and rental agent in this case flouted the commonly accepted understanding of what constitutes discriminatory advertisements in its industry. Under clearly established law, the advertisement published by the Connor Group, Inc. on Craigslist stating Great Bachelor Pad!... Our one bedroom apartments are a great bachelor pad for any single man looking to hook up clearly indicated a preference or limitation based on sex and family status. The trial court erred as a matter of law when it failed to find that the advertisement violated the FHA. The trial court also provided sufficiently erroneous instructions to the jury to require reversal by failing to provide the jury with the proper legal standard for determining a violation of 3604(c). As a result, the trial court s decisions should be reversed. 6

15 FACTUAL BACKGROUND The FHA s prohibition against discriminatory advertising and statements protects tens of millions of American households from experiencing words and images that communicate that they are excluded or less preferred in the housing market because of their race, national origin, sex, disability, religion or family status. 1 As part of its mission to promote fair housing and eliminate housing discrimination, the Miami Valley Fair Housing Center, Inc. (MVFHC) monitored advertisements, particularly on the internet, for compliance with its mission and the law. Trial Transcript [hereinafter TR ] During its monitoring activities, one of MVFHC s staff members came across the advertisement on the internet site Craigslist that stated in part, Great Bachelor Pad!... Our one bedroom apartments are a great bachelor pad for any single man looking to hook up. TR 80. The advertisement had been placed for properties in the Dayton area held by the Connor Group, a real estate investment group that at the time owned and managed 15,000 rental units nationally. TR 75. MVFHC filed a complaint under the FHA on two bases: sex, in that it stated a preference for a man and because an 1 For instance, there are 13.5 million African American households in the United States, 12.7 million Hispanic households, and 26.9 million households with a resident with a disability. See Rodney Harrell & Ari Houser, AARP Public Policy Institute, State Housing Profiles: Housing Conditions and Affordability for the Older Population 514 (3rd ed. 2011), available at rgcenter/ppi/liv-com/aarp_housing2011_full.pdf. 7

16 ordinary woman would be discouraged from applying; 2 and familial status, because the ad would discourage a family with children under 18 years of age, a pregnant woman, or someone who would be in the process of fostering or adopting a child from applying. 3 Permitting the publication of advertisements with the wording of, or similar to, the one in this case has severe consequences for families with children, especially for low income and minority families. One out of every three households (33.6%) has a child under the age of 18. Rodney Harrell & Ari Houser, AARP Public Policy Institute, State Housing Profiles: Housing Conditions and Affordability for the Older Population 514 (3rd ed. 2011), available at Discrimination against families with children has a disproportionate affect on minority families. See, e.g., Betsey v. Turtle Creek Ass'n, 736 F.2d 983, 988 (4th Cir. 1984) (finding evidence that a building s all adult conversion policy had a substantially greater impact on minority tenants established prima facie case of discriminatory impact under FHA). This adverse affect on minorities was understood at the time of the passage of the Fair Housing Amendments Act of 1988, Pub. L. No , 102 Stat (1988) (codified at 42 U.S.C et 2 3 TR 121 (lines 13-16) TR 121 (lines 19-22) 8

17 seq.) ( FHAA or Amendments ). Hearings on H.R before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 100th Cong., 1st Sess. (1987) [hereinafter Hearings on H.R. 1158]. Likewise, it understood there was a relationship between the crisis in family discrimination and high rates of poverty among families in rental housing. See Allen, Six Years, supra, at 301 (e.g. 70% of female headed families in rental housing lived in poverty). Evidence of relative economic stress among families with children continues to appear in more recent studies. For instance, about one-third of all families with children have incomes below 200 percent of the federal poverty level. Gregory Acs & Austin Nichols, The Urban Institute, An Assessment of the Income and Expenses of America s Low-Income Families Using Survey Data from the National Survey of America s Families 6 (September 28, 2006), available at urban.org/uploadedpdf/411382_surve.pdf. Housing is the single largest expense for most families. Data from the Consumer Expenditure (CE) Survey also indicate that housing costs represent the largest single expenditure for low-income families. Families in the bottom two income quintiles spend 25 to 30 percent of their income on housing. Abby Duly, Consumer Spending for Necessities, 36 Consumer Expenditure Survey Anthology (2003), available at csxanthol03.pdf. Families with the lowest income relative to their area s median account for 71.4 percent of worst case housing needs, 9

18 defined by HUD as either paying over half of their income for rent or living in severely inadequate conditions. U.S. Dep t of Hous. and Urban Dev., Worst Case Housing Needs 2009: A Report to Congress 3 (February 2011). Increasingly, grandparents are taking on responsibility for caring for their grandchildren. Two and a half million grandparents are responsible for the basic needs of one or more grandchildren who live with them. U.S. Dep t of Commerce, Grandparents Day 2009: Sept. 13, Census Newsroom, (July 13, 2009), special_ editions/cb09-ff16.html. Also of note is that multigenerational families households consisting of three or more generations of relatives are increasing, having grown particularly fast during the recent economic recession. In 2008, 6.2 million intergenerational households resided in the United States (5.3% of all households), a number that jumped to 7.1 million in 2010 (6.1% of all households). 4 Rodney Harrell, et al., AARP Public Policy Institute, Multigenerational Households are Increasing 1 (2011), available at For some multigenerational households, shared living space is a choice that enhances familial closeness and bonding across the generations. For others, it is based on 4 In 2000, there were 5 million households comprised of multiple generations (4.8% of all households). Rodney Harrell, et al., AARP Public Policy Institute, Multigenerational Households are Increasing 1 (2011), available at aarp.org/rgcenter/ppi/econ-sec/fs221-housing.pdf. 10

19 economic necessity, disability of a parent or adult child, or the absence or incapacity of the parent of a minor child. In the latter cases, family relationships may be strained by crowded living quarters, excessive caregiving responsibilities, and economic hardship. It is clear that the consequences of limiting the housing supply through unlawful discrimination adversely affects the most vulnerable populations, those Congress intended to protect through passage of the FHA. ARGUMENT I. CONGRESS INTENDED TO PROHIBIT ALL ADVERTISING THAT UNDERMINES THE BROAD GOALS OF THE FAIR HOUSING ACT The purpose of the FHA is to provide, within constitutional limitations, for fair housing throughout the United States. 42 U.S.C The Supreme Court has recognized that the language of the Act is broad and inclusive, Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972), and has repeatedly stated that the Act should be given a generous construction. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731 (1995) (quoting Trafficante, 409 U.S. at 212). The Court also has recognized that the ultimate purpose of the FHA was to create truly integrated and balanced living patterns. Trafficante, 409 U.S. at 211 (quoting 114 CONG. REC (1968)). The principles embodied in the FHA reflect a policy that Congress considered to be of the highest priority. Id. 11

20 Congress not only wanted the FHA to remedy the problems associated with segregated housing patterns, such as lost suburban job opportunities for minorities, but it also sought to address the specific problem of lack of experience in actually living next to each other. 114 CONG. REC (1968) (statement of Sen. Mondale). Congress intended to benefit not only black Americans, or other minority groups, or the protected classes delineated in the Act, but the whole community. 114 CONG. REC (1968) (statement of Sen. Javits). 5 Congress recognized the key role housing advertisements play in furthering the purposes of the FHA to eradicate housing discrimination and to promote integrated housing. Housing Opportunities Made Equal v. Cincinnati Enquirer, Inc., 943 F.2d 644, 652 (6th Cir. 1991). Courts have repeatedly recognized that discriminatory advertisements and statements deter prospective renters and buyers before they can even get in the door to apply for a home. See id.; Mayers v. Ridley, 465 F.2d 630, 649 (D.C. Cir.1972) (en banc); United States v. Hunter, 459 F.2d 205, 214 (4th Cir. 1972). As this Circuit made clear, even if Congress had enacted all of the FHA s comprehensive provisions banning discriminatory housing 5 Likewise, Congress sought to reduce residential segregation when it banned familial status and disability discrimination in passing the FHAA. The prohibition against discriminatory advertising is meant to reduce barriers that might deter persons with disabilities from seeking homes and neighborhoods that must be open to them under the FHA. Housing Opportunities Made Equal v. Cincinnati Enquirer, Inc., 943 F.2d 644, 652 (6th Cir. 1991). 12

21 practices, it would have been insufficient to accomplish its purposes: Without the regulation of advertisements, realtors [and other housing providers] could deter certain classes of potential tenants from seeking housing at a particular location, effectively discriminating against these classes without running afoul of the FHA's prohibition against discriminatory housing practices. Housing Opportunities Made Equal, 943 F.2d at 652. Thus, to further the remedial purpose of the FHA, the advertising provision 3604(c) must be given a broad construction in determining whether the advertising in question falls within the prohibition of the law. Campbell v. Robb, 162 Fed. Appx. 460, 466 (6th Cir. 2006). Section 3604(c) of the Fair Housing Act makes it unlawful: [t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. Congress provided greater reach and coverage for the advertising provision than for other substantive anti-discrimination provisions. See 42 U.S.C. 3604(a)- (d); 3603(b). In particular, Congress provided that the advertising provision could be violated by a person who otherwise is not engaging in any discriminatory behavior nor is even a person covered by the act: Nothing in section 3604 of this title (other than subsection (c)) shall apply to... (2) rooms or units in 13

22 dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence. 42 U.S.C. 3603(b) (emphasis added). That is, a certain set of small lodging landlords can legally withhold a housing unit from someone in a protected class but not say or advertise that fact. Mrs. Murphy 6 may legally deny rental housing on the basis of race, national origin and other bases; she may not announce or advertise this discrimination. 7 Hunter, 459 F.2d at 213 (even exempted landlord has no right to publicize intent to discriminate). Section 3604(c) is so broad as to bar even a simple oral statement giving the reason for a discriminatory housing denial. In addition, although the language of 3604(c) is similar to a provision in Title VII that makes it unlawful for an employer to print or publish or cause to be printed or published any notice or 6 This small lodging limitation is commonly called the Mrs. Murphy exemption. See Robert G. Schwemm, Discriminatory Housing Statements and 3604(c): A New Look at the Fair Housing Act s Most Intriguing Provision, 29 Fordham Urb. L.J. 187, n.11 (2001) ( The term Mrs. Murphy, apparently first coined in the congressional debates over the 1964 Civil Rights Act to refer to operator-residents of small lodging houses exempted from that law's public accommodations provisions (42 U.S.C. 2000a(b)(1)), was also adopted in the legislative discussions about the FHA in reference to small housing providers. ) 7 Of course the housing provider in this case is no Mrs. Murphy, being a real estate investment firm that describes itself as currently owning and operating 16,000 luxury apartments and having $1.3 billion in assets. THE CONNOR GROUP, (last visited June 20, 2012). 14

23 advertisement relating to employment by such an employer... indicating any preference, limitation, specification, or discrimination, based on race [or other prohibited factors], 42 U.S.C. 2000e-3(b), the FHA goes far beyond Title VII s scope within the employment context and not only bans discriminatory notices and advertisements, but also bans the extremely broad category of discriminatory statements. 8 In enacting the FHA, Congress wanted to accomplish far more than prohibiting individual acts of discriminatory refusals to sell or rent. Widespread appearance of discriminatory advertisements in public or private media may reasonably be thought to have a harmful effect on the general aims of the ACT: seeing large numbers of white only advertisements in one part of a city may deter nonwhites from venturing to seek homes there, even if other dwellings in the same area must be sold or rented on a non-discriminatory basis. Hunter, 459 F.2d at 214. Statements other than advertising that provide a message of exclusion are also prohibited within the broad ambit of 3604(c), including the recording of deeds with racially restrictive covenants. Mayers, 465 F.2d at 633. Congress recognized the large-scale consequences of discriminatory advertising, and enacted 3604(c) for its potential to affect people in large numbers. See id. at 641 (acknowledging that discriminatory covenants on record 8 Whereas Title VII s prohibition on publication of notices or advertisements only applies to covered employers. 42 U.S.C. 2000e-3(b). 15

24 can affect the marketability of property by discouraging demand). Addressing the potential for regulation of advertising the Supreme Court announced, Evils in the same field may be of different dimensions and proportions, requiring different remedies... Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Hunter, 459 F.2d at 215 (quoting Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955)). Section 3604(c) also advances the goals of the FHA by regulating and restricting activities that create the public impression that segregation in housing is legal. Spann v. Colonial Village, Inc., 899 F.2d 24, 30 (D,C. Cir. 1990). The FHA intended to promote open housing and nondiscriminatory advertising. Id. at 31. Ads like the one at issue in this case that use exclusionary and targeted language lead to the perception that discrimination in housing is both acceptable and the norm, in contrast to the intent of the FHA. Id. at 30. Congress understood that barring discriminatory advertising and statements could protect against [the] psychic injury caused by discriminatory statements made in connection with the housing market. United States v. Space Hunters, Inc., 429 F.3d 416, (2d Cir. 2005) (quoting Robert G. Schwemm, Discriminatory Housing Statements and 3604(c): A New Look at the Fair Housing Act s Most Intriguing Provision, 29 Fordham Urb. L.J. 187, 250 (2001)) and citing Dep t of Hous. and Urban Dev. ex rel. Stover v. Gruzdaitis, No

25 0377-8, 1998 WL , at *3 (HUD ALJ Aug. 14, 1998) (holding that 3604(c) protects the right to inquire about the availability of housing without being subjected to racially discriminatory statements )); see also Stewart v. Furton, 774 F.2d 706, 710 (6th Cir. 1985). The legislative history of the FHA indicates that protection from the emotional injury resulting from discriminatory statements was one of the purposes behind the enactment of 3604(c). For example, Senator Mondale remarked I still believe that one of the basic and most fundamental objections to discrimination in the sale or rental of housing is the fact that through public solicitation the [African-American] father, his wife and children are invited to go up to a home and thereafter be insulted solely on the basis of race. 114 CONG. REC (1968). II. THE ADVERTISEMENT GREAT BACHELOR PAD!... OUR ONE BEDROOM APARTMENTS ARE A GREAT BACHELOR PAD FOR ANY SINGLE MAN LOOKING TO HOOK UP VIOLATES 3604(c) BECAUSE IT CLEARLY INDICATES A PREFERENCE OR LIMITATION BASED ON SEX AND FAMILIAL STATUS This Circuit has held that the elements of 3604(c) claims are: (1) a written or oral... statement[] by a person engaged in the... rental of a dwelling ; (2) that indicates any preference, limitation, or discrimination based on a protected class; and (3) is made with respect to the sale or rental of a dwelling. Campbell, 162 Fed Appx. at 466 (quoting 24 C.F.R (b), 17

26 Housing Opportunities Made Equal, 943 F.2d at and 42 U.S.C. 3604(c)). A violation of 3604(c) does not require a showing of discriminatory intent. Jancik v. Dep t of Hous. and Urban Dev., 44 F.3d. 553, 556 (7th Cir. 1995); Soules v. United States Dep't of Housing & Urban Dev., 967 F.2d 817, 822 (2d Cir.1992); Housing Opportunities Made Equal, 943 F.2d at A. The Bachelor Ad Violates 3604(c) Under Clearly Established Case Law, Interpretations of the Agency Charged with the Enforcement of the Statute, and Guidance Provided by its Own Industry As a Matter of Law The standard by which a statement is evaluated is an objective one. Jancik, 44 F.3d at 556. The Act is violated only when the statement conveys a preference or limitation to the ordinary listener or ordinary reader, not that the speaker has intended to convey such a preference or limitation. Ragin v. N. Y. Times Co., 923 F.2d 995, 1002 (2d Cir. 1991) ( The ordinary reader is neither the most suspicious nor the most sensitive of our citizenry ). The ordinary reader must determine if a particular group is preferred or disfavored from the housing in question, or if the ad would discourage an ordinary reader of a particular protected group from answering it. Tyus v. Urban Search Mgmt., 102 F.3d 256, (7th Cir. 1996) (citing Jancik, 44 F.3d at 556). As a matter of law, an ordinary reader would understand the plain language of the ad in question using the phrase single man with the added descriptors of hook-up and bachelor pad to discourage households with children, women, or 18

27 other households with members in protected classes from applying. Even where it is fairly obvious that the advertiser is seeking to obtain a profit, or a greater profit, through the use of a particular form or manner of advertising, that motivation is irrelevant since intent is not a necessary element of this provision of the act; [t]he touchstone is the message. Ragin, 923 F.2d at In interpreting the FHA, courts must defer to the reasonable interpretations of the Department of Housing and Urban Development (HUD), the federal agency primarily charged with administering and enforcing the FHA. Meyer v. Holley, 537 U.S. 280, 287 (2003), (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, (1984)); Campbell v. Robb, 162 Fed. Appx. at 466; Hous. Opportunities Made Equal, 943 F.2d at 646; see also Ojo v. Farmers Group, 600 F.3d 1205, 1208 (9th Cir. 2010). In Campbell, this Court deferred to HUD regulations to interpret whether certain statements made by a housing owner to someone other than the prospective tenant were meant to be covered under 3604(c). Campbell, 162 Fed. Appx. at See also Ragin, 923 F.2d at 1000, n.1 (citing the HUD regulation in finding that 3604(c) applies to subtle methods of indicating racial preference ). 19

28 The HUD regulation directly on point states: Discriminatory advertisements, statements and notices. (a) It shall be unlawful to make, print or publish, or cause to be made, printed or published, any notice, statement or advertisement with respect to the sale or rental of a dwelling which indicates any preference, limitation or discrimination because of race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation or discrimination. (c) Discriminatory notices, statements and advertisements include, but are not limited to: (1) Using words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons because of race, color, religion, sex, handicap, familial status, or national origin. (d) 24 CFR part 109 provides information to assist persons to advertise dwellings in a nondiscriminatory manner and describes the matters the Department will review in evaluating compliance with the Fair Housing Act and in investigating complaints alleging discriminatory housing practices involving advertising. 24 C.F.R (2012) (emphasis added). Through 24 C.F.R. Part 109, HUD has long provided guidance to media, agencies, printers, publishers, and others who are involved in any way with 20

29 advertising that must comply with 3604(c). 24 C.F.R In its guidance, HUD states: Use of words, phrases, symbols, and visual aids The following words, phrases, symbols, and forms typify those most often used in residential real estate advertising to convey either overt or tacit discriminatory preferences or limitations. In considering a complaint under the Fair Housing Act, the Department will normally consider the use of these and comparable words, phrases, symbols, and forms to indicate a possible violation of the act and to establish a need for further proceedings on the complaint, if it is apparent from the context of the usage that discrimination within the meaning of the act is likely to result. (a) Words descriptive of dwelling, landlord, and tenants (b) Words indicative of race, color, religion, handicap, familial status, or national origin -- (5) the exclusive use of words in advertisements, including those involving the rental of separate units in a single or multi-family dwelling, stating or tending to imply that the housing being advertised is available to persons of only one sex and not the other (7) Familial status -- adults, children, singles, mature persons 24 CFR (1995) (emphasis added). 9 Although this guidance was originally published as regulations in the C.F.R., since 1995 it has been available through HUD as guidance and is referred to as guidance by HUD in its current Part 100 Fair Housing regulations, 24 C.F.R (d). It is still cited to with the C.F.R. citations. 21

30 HUD has also declared in an agency decision that it finds language almost identical to that at issue in this case to be in violation of the Act. For instance, HUD found that [b]y making the following statement in a rental advertisement [on Craigslist]... Makes a very nice apt for single guy tenant respondent expressed a preference, limitation or discrimination based on familial status [and] on sex.... United States Dep t of Hous. and Urban Dev v. Duncan, No , 4 (HUD ALJ Sept. 15, 2009), available at documents/huddoc?id=doc_14507.pdf. In its decision, HUD awarded injunctive and declaratory relief, compensatory damages and a civil penalty of $16,000. In 2010 HUD settled a Secretary initiated complaint against a realty company and an agent who had placed an ad in the multiple listing service concerning a rental stating that it was best suited for a single or couple and that the other units in the building were occupied by singles. HUD Worst Case Housing Needs at 45. The internet itself is replete with FHA training materials prepared by the housing industry for the housing industry listing red flagged words and warning specifically against using singles or single or the language used by the bachelor advertisement. See, e.g., Vermont Law School, Words and Phrases that Violate Fair Housing Law, (last visited June 20, 2012) (noting red flags such as ideal for single, ideal for single female ); Southern California Multiple Listing Service, Fair Housing and the 22

31 Multiple Listing Service, PoliciesProcedures/FairHousing.pdf (last visited June 20, 2012) (bearing the Realtor Trademark and cautioning above all to use physical descriptions of the property versus descriptions of buyers, and [d]efinitely do not say great for the couple or single ). Advertising-Beware, a newsletter article published on several property management websites provides this advice to others: The safest rule to follow in any advertising is to "describe the property, not the person. 10 See, e.g., Farnsworth-Ricks Management Company, The Manager s Report, farnsworth-ricks.com/?page=llsnewsletter&cpage= 0&ntype=O&nname= AZ-O (last visited June 20, 2012). (emphasis added in original) ( [E]xamples of discriminatory advertising: Great for singles. ). One article on the National Law Review s Blog is even titled Apartment Available - Perfect for a Single [Lawsuit] How to Avoid Legal Issues in Rental Advertisements. The article starts with a warning against using the phrase perfect for a single person. Jeffery A. Willis, Apartment Available - Perfect for a Single [Lawsuit] How to Avoid Legal Issues in Rental Advertisements, The National Law Forum (March 15, 2010), apartment-available-perfect-single-lawsuit-how-to-avoid-legal-issues-rental- 10 The trial court may have meant to alert the jury to this distinction when it gave the legally incorrect and confusing instruction to differentiate a focus on the suitability of the property to the renter from a focus on the suitability of the renter to the owner. Jury Instructions, R. 89, pp

32 advertisements. The Kentucky Fair Housing Council and the owners of an apartment building in Louisville settled a housing discrimination complaint where the advertising contained the discriminatory wording ideal for single older person, and ideal for 1. National Fair Housing Advocate Online, Fair Housing Council wins $7,500 from Louisville landlords advertising ideal for single older person (August 2003), available at method=page.display&pageid=3464 (last visited June 20, 2012). As a matter of law the bachelor pad, single man Craigslist ad violated the FHA and the decision of the court below must be reversed. B. The Trial Court Committed Reversible Error by Failing to Properly Instruct the Jury as to the Standard for Determining a Violation of 3604(c) The jury verdict below should be reversed because it is based on instructions that when viewed as a whole [are] confusing, misleading and prejudicial. Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 273 (6th Cir. 2009) (internal citations omitted). In this case, the instructions were confusing, misleading and prejudicial in two ways. First, the court erroneously instructed the jury that the discouragement would need to be the product of a discriminatory statement or indication in the advertisement. TR (emphasis added). This requirement vitiates the ordinary reader standard. Campbell, 162 Fed. Appx. at 466. It seems to require 24

33 that the jury must determine that there is an overt, explicit or obvious statement that standing on its own amounts to discrimination. To the contrary, the advertisement s language must merely suggest[] to an ordinary [reader] that a particular [group] is preferred or dispreferred, Id. (emphasis added). Even facially neutral advertisements and spoken statements can violate 3604(c). Ragin, 923 F.2d at 1001 (an advertiser s selection of all white models may indicate discrimination barred by 3604(c) because it select[s] those portrayals that will attract targeted consumers and discard[] those that will put them off ), cited in Soules, 967 F.2d at 824; Meyer v. Bear Rd. Assocs., 124 F. App x. 686, 689 (2d Cir. 2005) (asserting that a facially neutral policy may violate 3604(b) through disparate impact on families with children). In those cases, there is no identifiable discriminatory statement in the advertisement that produced the discouragement perceived by the ordinary reader; rather, the advertisement as a whole indicated the preference or limitation and resulted in the discouragement. In addition, the trial court s instruction is in error because some advertisements accomplish their discriminatory results without all but a trained fair housing practitioner from being aware that a violation is occurring. For instance, a lease that contained a clause stating, Applicant upon acceptance for occupancy at the Vernon Housing Authority, (VHA) [must verify] his/her personal health condition is favorable for self-maintenance and independent living, violated 25

34 3604(c). It was held to be a statement that discriminated on the basis of disability. Maziarz v. Hous. Auth., No. 3:10-CV-2029, 2012 U.S. Dist. LEXIS 24791, at *9 (Dist. Ct. Conn. Feb. 27, 2012) (citing Cason v. Rochester Hous. Auth., 748 F.Supp. 1002, 1011 (W.D.N.Y. 1990) (holding that requiring verification or certification of ability to live independently is a form of disability discrimination). Even though the discrimination in the statement may be difficult to identify, the court had no trouble holding that a reasonable jury could conclude that that the PCS form tacitly expressed to an ordinary reader that individuals with disabilities were disfavored by the VHA. Id. at *13. The jury may focus on the effect of the statement as a whole on the ordinary reader concerning whether or not the protected class was disfavored. An additional error as a matter of law occurred in the instruction to the jury that if the message focuses on the suitability of the property to the renter, then it is permissible. Jury Instructions, R. 89, pp There are cases in which a statement or advertisement itself focuses on the suitability of the property to the renter but it nevertheless violates 3604(c) because of an implication it makes. For instance, in Southern California Housing Rights Center v. Krug, 564 F.Supp.2d 1138, 1151 (C.D. Cal. 2007), the landlord commented that the building was super quiet because it was just adults. Although the statement may focus on whether the renter would prefer the building, the court held that the landlord s 26

35 statements suggested to an ordinary listener that the landlord preferred to rent to only adults. Id. at However under the instruction given in this case, the jury would have been misled to conclude the statement is permissible before reaching the consideration that an ordinary reader could interpret it to be impermissibly discriminatory. An advertisement that focuses on the suitability of the property to the renter (which the trial court s instructions directed the jury to find permissible) may nevertheless send a signal of discrimination. CONCLUSION For the reasons set forth above, Amici respectfully request that the Court reverse the judgment of the district court. Dated: June 22, 2012 /s/ Rachel K. Robinson Rachel K. Robinson (Bar # ) Rachel K. Robinson, Attorney at Law 57 Jefferson Avenue, Suite G100 Columbus, Ohio Tel: (614) Joseph V. Maskovyak Ohio Poverty Law Center 555 Buttles Ave. Columbus, OH Tel: Fax: Respectfully Submitted, Susan Ann Silverstein AARP Foundation Litigation Michael Schuster AARP 601 E Street, N.W. Washington, D.C Tel: Fax: Attorneys for Amici Curiae 27

36 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,219 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief also complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type syle requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14 point Times New Roman font. Dated: June 22, 2012 /s/ Rachel K. Robinson Rachel K. Robinson (Bar # ) Attorney for Amici Curiae 28