IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. Case No FAIR HOUSING RESOURCE CENTER, INC. Plaintiff-Appellant.

Transcription

1 Case: Document: Filed: 07/15/2010 Page: 1 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Case No FAIR HOUSING RESOURCE CENTER, INC. Plaintiff-Appellant -vs- DJMS 4 REASONS LTD, et al. Defendants-Appellees MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE NATIONAL FAIR HOUSING ALLIANCE AND AARP IN SUPPORT OF APPELLANT AND URGING REVERSAL On Appeal from the United States District Court, Northern District of Ohio No. 1:08 CV 2848 (Hon. Donald C. Nugent) Stephen M. Dane D. Scott Chang Relman, Dane & Colfax PLLC 1225 Nineteenth Street, N.W., Suite 600 Washington, D.C Tel: Fax: Susan Anne Silverstein AARP Foundation Litigation Michael Schuster AARP 601 E Street, N.W. Washington, D.C Tel: Fax:

2 Case: Document: Filed: 07/15/2010 Page: 2 INTRODUCTION Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, the National Fair Housing Alliance and AARP ( Amici ) hereby respectfully move for leave to file the attached brief as amici curiae in support of Plaintiff-Appellant. This motion is accompanied by Amici s proposed brief as required by Rule 29(b). ARGUMENT A. Interests of Amici Amici the National Fair Housing Alliance ( NFHA ) and AARP are nationally recognized advocates for equal opportunity in housing and older persons. Amici are dedicated to vigorously enforcing the Fair Housing Act in order to effectuate the intent of Congress. This appeal presents issues regarding the proper interpretation and scope of the provision of the Fair Housing Act ( FHA ) barring discriminatory statements, 42 U.S.C. 3604(c), and its interplay with the requirement that housing providers make reasonable accommodations in rules such as allowing people with disabilities to use assistance animals. Amici offer the Court their unique and important views on the legislative purposes behind discriminatory statements and reasonable accommodations provisions of the Fair Housing Act, the proper standard of proof for proving a violation of 3604(c) and the correct scope of the term discrimination as used in 3604(c). Amici also address the district court s 2

3 Case: Document: Filed: 07/15/2010 Page: 3 errors in granting a directed verdict in favor of a corporate officer who personally made the alleged discriminatory statements in violation of the FHA and in failing to admit into evidence the tester reports that contemporaneously recorded the discriminatory statements made by Defendant. 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 accessible and affordable housing options. 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. The ability of people age fifty and over to remain independent will depend in part on the availability of reasonable accommodations that will allow people with disabilities to have an equal opportunity to use and enjoy housing. The National Fair Housing Alliance ( NFHA ) is a consortium of private, non-profit, fair-housing organizations, state and local civil-rights groups, and individuals. In conjunction with its members, NFHA strives to eliminate housing discrimination and ensure equal housing opportunities for all people through leadership, education and outreach, membership services, public policy initiatives, advocacy and enforcement. As part of its enforcement activities, NFHA assists its 3

4 Case: Document: Filed: 07/15/2010 Page: 4 members and participates in federal and state court litigation brought under the Fair Housing Act and state and local fair housing laws. B. Reasons Why An Amicus Brief is Desirable and Relevant to the Disposition of the Case Amici s brief is both relevant and desirable. See Fed. R. App. P. 29(b)(2). The legal issues presented in this appeal are of great importance to these amici, their members and constituents and to the Court. Congress adopted the reasonable accommodation provision of the Fair Housing Act to require housing providers to make exceptions to generally applicable rules for people with disabilities. The Fair Housing Act defines discrimination to include the refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford people with disabilities an equal opportunity to use and enjoy a dwelling. 42 U.S.C. 3605(f)(3)(B). The reasonable accommodation provision of the Fair Housing Amendments Act of 1988 ( FHAA ) was intended to benefit the estimated 49.7 million people in the United States who have some type of disability. As the nation s population of older persons rises dramatically over the next several decades, and as a larger number of veterans return from service to their country with serious disabilities, the need for housing for people with disabilities will grow at a much faster rate than the United States has ever experienced. Unless people with disabilities have the ability to exercise their legal right to obtain reasonable accommodations, 4

5 Case: Document: Filed: 07/15/2010 Page: 5 Congress intent to eliminate the long-standing segregation of people with disabilities will be frustrated. To promote the goal of eliminating discrimination against people with disabilities and encourage their integration in the nation s neighborhood, the FHA bars the making of statements with respect to the sale or rental of dwellings that indicate a preference, limitation or discrimination based on disability. The provision barring discriminatory statements is particularly important to achieve Congress objectives behind the FHA. Amici offer the Court relevant matter not brought to Court s attention by the parties or other amici. See Funbus Sys., Inc. v. Cal. Pub. Util. Comm n, 801 F.2d 1120, (9th Cir. 1986). Amici provide statistical information regarding the increasing numbers of persons who have disabilities and need accessible housing, address the legislative goals behind the provisions barring discriminatory statements and requiring reasonable accommodations, set forth information on the benefits of assistance animals for people with disabilities and the role they serve in furthering integration and describe how the district court s errors in instructing the jury thwart Congress goals behind the FHA and the FHAA. Amici will therefore provide a distinct and relevant analysis of issues presented on appeal. 5

6 Case: Document: Filed: 07/15/2010 Page: 6 III. CONCLUSION For the foregoing reasons, Amici respectfully request that the Court grant their motion to file the attached amicus brief. Dated: July 15, 2010 Respectfully Submitted, s/ Stephen M. Dane D. Scott Chang Stephen M. Dane RELMAN DANE & COLFAX PLLC th Street, NW, Suite 600 Washington DC Telephone: (202) Fax: (202) Susan Anne Silverstein Michael Schuster AARP FOUNDATION LITIGATION 601 E Street, N.W. Washington, D.C Tel: Fax: Counsel for Amici Curiae 6

7 Case: Document: Filed: 07/15/2010 Page: 7 CERTIFICATE OF SERVICE I hereby certify that on July 15, 2010, the foregoing Motion for Leave to File Brief of Amici Curiae National Fair Housing Alliance and AARP in Support of Appellant and Urging Reversal was filed electronically through the Court s CM/ECF system. Notice of this filing will be sent to all registered parties by operation of the Court s electronic filing system. s/ Stephen M. Dane Stephen M. Dane

8 Case: Document: Filed: 07/15/2010 Page: 1 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Case No FAIR HOUSING RESOURCE CENTER, INC. Plaintiff-Appellant -vs- DJMS 4 REASONS LTD, et al. Defendants-Appellees BRIEF OF AMICI CURIAE NATIONAL FAIR HOUSING ALLIANCE AND AARP IN SUPPORT OF APPELLANT AND URGING REVERSAL On Appeal from the United States District Court, Northern District of Ohio No. 1:08 CV 2848 (Hon. Donald C. Nugent) Stephen M. Dane D. Scott Chang Relman, Dane & Colfax PLLC 1225 Nineteenth Street, N.W., Suite 600 Washington, D.C Tel: Fax: Susan Anne Silverstein AARP Foundation Litigation Michael Schuster AARP 601 E Street, N.W. Washington, D.C Tel: Fax: Counsel for Amici Curiae

9 Case: Document: Filed: 07/15/2010 Page: 2 TABLE OF CONTENTS TABLE OF CONTENTS...i TABLE OF AUTHORITIES...ii CORPORATE DISCLOSURE STATEMENT...vi STATEMENT OF INTEREST OF AMICI CURIAE...1 INTRODUCTION AND SUMMARY OF ARGUMENT...3 FACTUAL BACKGROUND...4 ARGUMENT...8 I. The District Court Erred in Failing to Instruct the Jury That Intent is Not Necessary to Establish That a Discriminatory Statement Was Made in Violation of Section 3604(c)...8 A. Section 3604(c) is Vital to Achieving Congress Purposes Behind the Fair Housing Act and the Fair Housing Amendments Act...8 B. A Violation of 3604(c) Does Not Require Discriminatory Intent...12 II. III. IV. The District Court Erred in Failing to Instruct the Jury That Discrimination Includes a Failure to Make Reasonable Accommodations...16 The District Court Improperly Granted a Directed Verdict to Mr. Murphy in His Individual Capacity...21 The District Court Erred in Refusing to Admit into Evidence Plaintiff s Tester Reports as Business Record...23 V. Conclusion...26 i

10 Case: Document: Filed: 07/15/2010 Page: 3 Federal Cases TABLE OF AUTHORITIES Alexander v. Choate, 469 U.S. 287 (1985)...17 American Airlines v. Christensen, 967 F.2d 410 (10th Cir. 1982)...22 Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009)...15, 21 Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995)...18, 20 Campbell v. Robb, 162 Fed. Appx. 460 (6th Cir. 2006)...10, 13 City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995)...9 Curtis v. Loether, 415 U.S. 189 (1974)...22 Dep t of Hous. and Urban Dev. ex rel. Stover v. Gruzdaitis, No , 1998 WL (HUD ALJ Aug. 14, 1998)...11, 12 Donsco, Inc. v. Casper Corp., 587 F.2d 602 (3d Cir. 1978)...23 Fair Housing Center of Washtenaw County, Inc. v. Town & Country Apartments, No , 2009 WL (E.D. Mich. Jan. 27, 2009)...25 Fair Housing Council, Inc. v. Village of Olde St. Andrews Inc., 210 Fed. Appx. 469 (6th Cir. 2006)...20 Groner v. Golden Gate Apartments, 250 F.3d 1039 (6th Cir. 2000)...18 Hamilton v. Miller, 477 F.2d 908 (10th Cir. 1973)...24 Housing Opportunities Made Equal v. Cincinnati Enquirer, Inc., 943 F.2d 644 (6th Cir. 1991)...passim Jancik v. Dep t of Hous. and Urban Dev., 44 F.3d. 553 (7th Cir. 1995)..13, 14 ii

11 Case: Document: Filed: 07/15/2010 Page: 4 Laudon v. Loos, 694 F. Supp. 253 (E.D. Mich. 1988)...25 Lobato v. Pay Less Drug Stores, Inc., 261 F.2d 406 (10th Cir. 1958)...22 Mayers v. Ridley, 465 F.2d 630 (D.C. Cir.1972)...11 McNamara v. F 48, No , 1996 WL (9th Cir. April 24, 1996)...16 Meyer v. Holley, 537 U.S. 280 (2003)...20, 22 Moss v. Old South Real Estate, Inc., 933 F.2d 1300 (5th Cir. 1991)...23 Overlook Mut. Homes v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2007)...18 Paschal v. Flagstar Bank, 295 F.3d 565 (6th Cir. 2002)...25 Polk v. Yellow Freight Sys., Inc., 876 F.2d 527 (6th Cir. 1989)...26 Ragin v. New York Times Co., 923 F.2d 995 (2d Cir. 1991)...13, 14 Richardson v. Howard, 712 F.2d 319 (7th Cir. 1983)...24, 25 Seale v. Citizens Sav. & Loan Ass n, 806 F.2d 99 (6th Cir. 1986)...22 Soules v. Dep t of Hous. and Urban Dev, 967 F.2d 817 (2d Cir. 1992)...14 Spann v. Colonial Vill., 899 F.2d 24 (D.C. Cir. 1990)...12, 21 Stewart v. Furton, 774 F.2d 706 (6th Cir. 1985)...12 Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972)...9 United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413 (9th Cir. 1994)...18 United States v. Hunter, 459 F.2d 205 (4th Cir. 1972)...11, 13 iii

12 Case: Document: Filed: 07/15/2010 Page: 5 United States v. Northeastern Pharm. & Chem. Co., Inc., 810 F.2d 726 (8th Cir. 1986)...22, 23 United States v. Space Hunters, Inc., 429 F.3d 416 (2d Cir. 2005)...11, 21 United States v. U.S. Gypsum Co., 333 U.S. 364 (1948)...26 Williams v. Paint Valley Local Sch. Dist., 400 F.3d 360 (6th Cir. 2005)...21 Federal Statutes and Regulations 42 U.S.C. 2000e-3(b) U.S.C U.S.C et seq U.S.C. 3603(b) U.S.C. 3604(c)...passim 42 U.S.C. 3604(f)(3)(A)&(B) U.S.C. 3604(f)(3)(B)...3, C.F.R C.F.R , C.F.R (b) C.F.R (b)(1)...19 Other Authorities 114 CONG. REC (Feb. 8, 1968) (statement of Sen. Javits) CONG. REC (1968) (statement of Sen. Mondale)...12 H.R. REP. NO (1988)...passim iv

13 Case: Document: Filed: 07/15/2010 Page: 6 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)...11, 15 v

14 Case: Document: Filed: 07/15/2010 Page: 7 CORPORATE DISCLOSURE STATEMENT Amici the National Fair Housing Alliance and AARP ( Amici ) are taxexempt nonprofit corporations. Neither of the Amici has a corporate parent or is publicly held. Dated: July 15, 2010 s/ Stephen M. Dane Stephen M. Dane Attorney for Amici Curiae vi

15 Case: Document: Filed: 07/15/2010 Page: 8 STATEMENT OF INTEREST OF AMICI CURIAE Amici the National Fair Housing Alliance ( NFHA ) and AARP are nationally recognized advocates for equal opportunity in housing and advocates for people with disabilities and older persons. 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 accessible and affordable housing options. 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. The ability of people age fifty and over to remain independent will depend in part on the availability of reasonable accommodations that will allow people with disabilities to have an equal opportunity to use and enjoy housing. The National Fair Housing Alliance ( NFHA ) is a consortium of private, nonprofit, fair housing organizations, state and local civil rights groups, and individuals. In conjunction with its members, NFHA strives to eliminate housing discrimination and ensure equal housing opportunities for all people through leadership, education and outreach, membership services, public policy initiatives, advocacy and enforcement. As part of its enforcement activities, NFHA assists its 1

16 Case: Document: Filed: 07/15/2010 Page: 9 members and participates in federal and state court litigation brought under the Fair Housing Act and state and local fair housing laws. The legal issues presented in this appeal are of great importance to these amici, their members and constituents. Congress adopted the reasonable accommodation provision of the Fair Housing Act to require housing providers to make exceptions to generally applicable rules for people with disabilities. In particular, the Fair Housing Act defines discrimination to include the refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford people with disabilities an equal opportunity to use and enjoy a dwelling. 42 U.S.C. 3604(f)(3)(B). The reasonable accommodation provision of the Fair Housing Amendments Act of 1988 was intended to benefit the estimated 49.7 million people in the United States who have some type of disability. As the nation s population of older persons rises dramatically over the next several decades, and as a larger number of veterans return from service to their country with serious disabilities, the need for housing for people with disabilities will grow at a much faster rate than the United States has ever experienced. Unless people with disabilities have the ability to exercise their legal right to obtain reasonable accommodations, Congress intent to eliminate the long-standing segregation of people with disabilities will be frustrated. Because of their extensive involvement in fair housing cases across the 2

17 Case: Document: Filed: 07/15/2010 Page: 10 country, these organizations stand in a unique position to address this important legal issue, and their views may prove of substantial assistance to the Court in its resolution of the issues presented in this appeal. INTRODUCTION AND SUMMARY OF ARGUMENT In passing the Fair Housing Amendments Act of 1988 ( FHAA ), which made handicap or disability a protected class, Congress made a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream, H.R. REP. NO , at 18 (1988), and took a major step in changing the stereotypes that had served, and continue to serve, to exclude them from American life. Central to the goal of eliminating housing discrimination against people with disabilities and other protected classes, the Fair Housing Act ( FHA ) bans the making of any statement with respect to the sale or rental of dwellings that indicates any preference, limitation, or discrimination based on disability. 42 U.S.C. 3604(c). The provision barring discriminatory statements serves to reduce the barriers that might deter persons from seeking to live in homes that must be available to rent to them on an equal basis, prevent the psychic injury caused to members of the protected classes by discriminatory statements and rebuts any public impression that segregation of the protected classes is permissible. 3

18 Case: Document: Filed: 07/15/2010 Page: 11 The blatant statements made by the housing provider in this case indicating that he would not make reasonable accommodations to people with disabilities fall squarely within the FHA s ban on discriminatory statements. The district court, however, ignoring well established case law, failed to clearly instruct the jury that violations of 42 U.S.C. 3604(c) do not require discriminatory intent. The district court also failed to instruct the jury that discrimination under 42 U.S.C. 3604(c) includes statements that indicate that reasonable accommodations will not be made. Furthermore, unlike other federal courts faced with the issue, the district court refused to recognize that corporate officers can be personally liable for their wrongful acts in violation of the FHA and failed to admit Plaintiff s tester reports into evidence as business records. FACTUAL BACKGROUND Without the reasonable accommodation requirement of the FHAA, housing could effectively be rendered off-limits to the increasing number of people with disabilities in this country. The reasonable accommodation provision is a crucial provision to ensure that older persons, wounded veterans and an increasing number of younger people with disabilities who previously lived in institutional settings are not unnecessarily excluded from living within their communities. 4

19 Case: Document: Filed: 07/15/2010 Page: 12 The protections of the reasonable accommodation provision and other protections for people with disabilities under the FHAA were designed to benefit the estimated 49.7 million people in the United States, or about 19.3% of the nation s total population, who have some type of disability. See JUDITH WALDROP & SHARON M. STERN, U.S. CENSUS BUREAU, DISABILITY STATUS: (2003). According to the United States Census Bureau, more than 2.7 million people over the age of 15 years use a wheelchair, 9.1 million people use a cane, crutches, a walker or other mobility aid, 7.8 million people have difficulty seeing, and 7.8 million people have difficulty hearing. U.S. CENSUS BUREAU, TABLE A. SELECTED DISABILITY MEASURES: The impact of disability and the importance of the FHAA s reasonable accommodation requirements are even more pronounced for America s aging population. America s population of older persons will grow dramatically in the coming years. In , around 49 million households were headed by someone age 50 or older, up from about 39 million in This represents an increase of approximately 25 percent. ANDREW KOCHERA, AARP PUBLIC POLICY INST., STATE HOUSING PROFILES: A SPECIAL ANALYSIS OF THE CENSUS BUREAU S AMERICAN COMMUNITY SURVEY 5 (2006). In absolute numbers and as a percentage of the total population, the 65-and-over population is expected to rise from 35.1 million or 12.4% of the total population in 2000 to 86.7 million or just 5

20 Case: Document: Filed: 07/15/2010 Page: 13 over 20% in LAURA B. SHRETHA ET AL., CONGRESSIONAL RESEARCH SERVICE, THE CHANGING DEMOGRAPHIC PROFILE OF THE UNITED STATES 15 (2006). These trends portend an ever increasing need for housing available to and usable by persons with disabilities. Not surprisingly, the census data show both that a disproportionate number of these disabled persons are elderly and that, as people grow older, they are increasingly likely to have a disability. YVONNE J. GIST & LISA I. HETZEL, U.S. CENSUS BUREAU, WE THE PEOPLE: AGING IN THE UNITED STATES 11 (2004). Persons age 65 and older are three times more likely to have sensory disabilities such as blindness or hearing impairment, physical disabilities or self-care issues such as dressing, bathing or getting around inside a home than the total population. Id. Older persons are nearly three times as likely to have difficulty going outside the home alone and more than twice as likely to have mental disabilities. Id. Moreover, the incidence of disability grows steadily with advancing age. According to the 2000 Census, 42% of those 65-and-over have a disability, 32% of persons age 65 to 74 report at least one disability and 72% of persons age 85 or older have a disability. Id. Thus, the likelihood of having a disability rises as people grow more elderly. Inaccessible housing also means that the nearly 181,000 military service men and women who have become disabled after action in the Iraq and 6

21 Case: Document: Filed: 07/15/2010 Page: 14 Afghanistan theaters may not have adequate rental housing upon their return to the United States. Jennifer C. Kerr, Number of Disabled Veterans Rising, USA TODAY (May 12, 2008) (stating that 181,000 veterans of the Iraq and Afghanistan wars are collecting disability benefits through the Veterans Administration). The lack of accessible housing creates barriers for people with disabilities to integrate in America s neighborhoods. As a report by several federal agencies stated, The lack of accessible, affordable housing continues to present a major barrier to the participation of people with disabilities in their communities and in the economic life of the nation. U.S. DEP T OF JUSTICE ET AL., DELIVERING ON THE PROMISE PRELIMINARY REPORT OF FEDERAL AGENCIES ACTIONS TO REMOVE BARRIERS AND PROMOTE COMMUNITY INTEGRATION 6 (2001). In short, the reasonable accommodation provision of the FHAA is specifically intended to provide equal opportunity, see H.R. REP. NO , at 25 (1988), and thus to ensure full integration and maximum independence for people with disabilities. Anything that thwarts the accomplishment of those goals including statements that clearly indicate that reasonable accommodations will not be made also frustrates important national objectives that seek to move people with disabilities into the American mainstream. 7

22 Case: Document: Filed: 07/15/2010 Page: 15 ARGUMENT I. THE DISTRICT COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT INTENT IS NOT NECESSARY TO ESTABLISH THAT A DISCRIMINATORY STATEMENT WAS MADE IN VIOLATION OF SECTION 3604(c) A. Section 3604(c) is Vital to Achieving Congress Purposes Behind the Fair Housing Act and the Fair Housing Amendments Act Section 804(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. 42 U.S.C. 3604(c). The FHA was enacted 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 principles embodied in the FHA reflect a policy that Congress considered to be of the highest priority. Trafficante, 409 U.S. at 211. Congress intended to achieve fair housing throughout the United States by deterring discrimination, supporting desegregation, and compensating victims of discrimination. For example, Senator Javits explained that housing discrimination 8

23 Case: Document: Filed: 07/15/2010 Page: 16 is a vital issue and it was a fundamental element of dignity that a man may enjoy [a good home in a good neighborhood] without hindrance. 114 CONG. REC (Feb. 8, 1968). Congress had similar objectives in passing the Fair Housing Amendments Act of 1988, Pub. L. No , 102 Stat (1988) (codified at 42 U.S.C et seq.). Congress made clear that [p]rohibiting discrimination against individuals with handicaps is a major step in changing the stereotypes that have served to exclude them from American life. These persons have been denied housing because of misperceptions, ignorance, and outright prejudice. H.R. REP. NO , at 18 (1988). In addition, Congress required housing providers to make reasonable accommodations in rules and policies for people with disabilities, allow reasonable modifications and made the failure to do so illegal. 42 U.S.C. 3604(f)(3)(A)&(B). The ban on discriminatory notices, statements and advertisements contained in 3604(c) is crucial to furthering the purposes of the FHA and the FHAA by reducing 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); Campbell v. Robb, 162 Fed. Appx. 460, 466 (6th Cir. 2006) (holding that in determining whether a defendant has violated 3604(c), we bear in mind the 9

24 Case: Document: Filed: 07/15/2010 Page: 17 broad construction courts have given to 3604(c) in order to further the remedial purpose of the FHA. ). 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 Housing Opportunities Made Equal, 943 F.2d at 652; United States v. Hunter, 459 F.2d 205, 214 (4th Cir. 1972); Mayers v. Ridley, 465 F.2d 630, 649 (D.C. Cir.1972). As the Sixth Circuit explained: The prohibition against discriminatory advertising contributes to the eradication of discriminatory housing practices. Without the regulation of advertising, realtors 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. Congress obviously recognized the key role housing advertisements play in potential real estate transactions and concluded that the regulation of real estate advertisements is warranted. Housing Opportunities Made Equal, 943 F.2d at 652. A second goal advanced by 3604(c) is the protection 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 , 1998 WL , at *3 (HUD ALJ 10

25 Case: Document: Filed: 07/15/2010 Page: 18 Aug. 14, 1998) (holding that 3604(c) protects the right to inquire about the availability of housing without being subjected to racially discriminatory statements )); 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). Section 3604(c) also advances the goals of the FHA by banning practices that might create a public impression that segregation in housing is legal. Spann v. Colonial Vill., 899 F.2d 24, 30 (D.C. Cir. 1990). Discriminatory statements and advertisements are seen and heard by unsophisticated housing providers and home seekers as well as sophisticated ones. The continuing prevalence of discriminatory notices, statements, and advertisements encourage housing providers and members of the protected classes to believe that discrimination in housing is the accepted norm, despite the FHA s ban on such practices. See id. The importance of 3604(c) to Congress in furthering the goals of the FHA is demonstrated by its applicability to even the housing providers who are exempt 11

26 Case: Document: Filed: 07/15/2010 Page: 19 from other provisions of the FHA, see 42 U.S.C. 3603(b), its ban on discriminatory statements that extends well beyond the coverage of comparable provisions in other civil rights laws, see 42 U.S.C. 2000e-3(b), and in the statutory language and the broad interpretation that the courts have consistently given to 3604(c). The importance of 3604(c) to furthering the statutory objectives of the FHA is also reflected in the Court s consistent determination that a violation of 3604(c) does not require a showing of discriminatory intent. B. A Violation of 3604(c) Does Not Require Discriminatory Intent The Sixth Circuit has held that the elements of 3604(c) claim 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), Housing Opportunities Made Equal, 943 F.2d at and42 U.S.C. 3604(c)). Discriminatory intent is not required to establish a violation of 3604(c). Jancik v. Dep t of Hous. and Urban Dev., 44 F.3d. 553, 556 (7th Cir. 1995); Housing Opportunities Made Equal, 943 F.2d at A violation of 3604(c) is established whenever [t]o the ordinary reader the natural interpretation of the notice or statement is to indicate a preference, limitation, or discrimination prohibited by Section 804(c). Hunter, 459 F.2d at 215; see also Ragin v. New York 12

27 Case: Document: Filed: 07/15/2010 Page: 20 Times Co., 923 F.2d 995, (2d Cir. 1991); Housing Opportunities Made Equal, 943 F.2d at 648. Since Hunter, every circuit that has considered a claim under 3604(c) has held that the ordinary reader test applies in determining whether 3604(c) has been violated. Jancik, 44 F.3d at 556. Section 3604(c) is not concerned with the subjective intent of the speaker and therefore there is no need for a finding of intentional discrimination by the finder of fact. Under the test in Hunter, plaintiffs need only show that a message of preference, limitation or discrimination on the basis of disability was one of the messages communicated to the ordinary listener by the defendant's statements. Oral statements, as with advertisements, are tested under the ordinary reader or listener test and require no showing of discriminatory intent. Thus, in Soules v. Dep t of Hous. and Urban Dev, 967 F.2d 817, 824 (2d Cir. 1992), the Second Circuit applied the test to oral statements made by a rental agent to a prospective tenant inquiring about renting an apartment. The Second Circuit stated that, as in cases of discriminatory advertising, where oral statements are clearly discriminatory, a court may look at the statement and determine whether it indicates an impermissible preference to an ordinary reader. Id. As one commentator has noted, 3604(c) is essentially a strict liability statute: all that is required to establish liability is that the challenged notice, statement, or advertisement be made with respect to the sale or rental of a 13

28 Case: Document: Filed: 07/15/2010 Page: 21 dwelling and indicate discrimination. Schwemm, supra at 216 (quoting 42 U.S.C. 3604(c)). In this case, Defendant/Appellee Dudley Murphy made statements to fair housing testers that a jury could determine violate 3604(c) under the ordinary listener test. The testers testified that they told Mr. Murphy that either they or a sibling living in their household had an assistance animal to help with a disability. Mr. Murphy told them that the assistance animal was a pet and indicated he did not allow pets. (Trial Transcript (Tr.) at 93-4, 102.) Mr. Murphy did not dispute that he made the statements to the testers but instead testified that he could not remember the specific telephone calls with the testers. (Id. at ) A jury verdict may be reversed based on incorrect jury instructions when the instructions viewed as a whole [are] confusing, misleading and prejudicial. Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 273 (6th Cir. 2009) (citation omitted). In this case, the instructions were misleading and confusing because the court failed to instruct the jury that intent was not required to establish a violation of 3604(c). The district court first instructed the jury that a violation of 3604(c) may be established under the reasonable listener test but failed to inform the jury that intent was not required under that test. (Tr. at 254.) The district court next instructed the jury that Plaintiff was required to demonstrate that disability was a motivating factor for Defendant s actions. (Id.) 14

29 Case: Document: Filed: 07/15/2010 Page: 22 The district court s error was prejudicial. The jury might well have determined that certain things were said, but it might not have been convinced by a preponderance of the evidence that those things were or were not said with intent to discriminate. McNamara v. F 48, No , 1996 WL at *1 (9th Cir. April 24, 1996) (reversing and remanding for a new trial a 3604(c) claim because the district court instructed the jury both that it need not find intent and that the jury had to prove that defendants intentionally discriminated). After the jury started deliberating, the jury indicated its confusion over the 3604(c) jury instruction by asking the district court whether the use of the term motivating factor was the same as intent. (Tr. At 297.) The jury might well have determined that the statements were made but were uncertain whether the statements were motivated by the disabilities of the testers or persons living in the tester s household. See McNamara, 1996 WL at *1. Accordingly, the jury verdict on Plaintiff s 3604(c) claim should be reversed because the jury instructions were misleading, confusing and prejudicial as to whether discriminatory intent was required. See id. 15

30 Case: Document: Filed: 07/15/2010 Page: 23 II. THE DISTRICT COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT DISCRIMINATION INCLUDES A FAILURE TO MAKE REASONABLE ACCOMMODATIONS The district court also erred in refusing to instruct the jury that discrimination as defined under 3604(c) of the Fair Housing Act includes a failure to make reasonable accommodations. Declaring that [t]he right to be free from housing discrimination is essential to the goal of independent living for people with disabilities, Congress understood that housing discrimination against handicapped persons is not limited to blatant, intentional acts of discrimination. H.R. REP. NO , at 18 and 25. Acts that have the effect of causing discrimination can be just as devastating as intentional discrimination. Id. at 25. Congress knew that discrimination against handicapped persons is often the product, not of invidious animus, but rather of thoughtlessness and indifference of benign neglect. Id. (quoting Alexander v. Choate, 469 U.S. 287 (1985)). Congress thus adopted the reasonable accommodation provision to require housing providers to make exceptions to generally applicable rules for people with disabilities. In adopting the reasonable accommodation provision, Congress explained that: A discriminatory rule, policy, practice or service is not defensible simply because that is the manner in which such rule or practice has traditionally been constituted. This section would require that changes be made to such traditional rules or practices if necessary to 16

31 Case: Document: Filed: 07/15/2010 Page: 24 permit a person with handicaps an equal opportunity to use and enjoy a dwelling. Id. One of the goals of the reasonable accommodation provision is to level the playing field so that persons with disabilities can participate on an equal footing in society with those who do not have disabilities. This Court has explicitly recognized that discrimination prohibited by the Fair Housing Act includes the refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [the handicapped individual an] equal opportunity to use and enjoy a dwelling. Groner v. Golden Gate Apartments, 250 F.3d 1039, 1044 (6th Cir. 2000) (quoting 42 U.S.C. 3604(f)(3)(B)). The reasonable accommodation provision imposes an affirmative duty upon landlords reasonably to accommodate the needs of handicapped persons. Groner, 250 F.3d at 1044 (quoting United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1416 (9th Cir. 1994) and citing H.R. REP. NO at 25 (1988)). An example of a clear violation of the reasonable accommodation provision of the Fair Housing Act is a landlord s failure to allow a person with a disability to have a service or assistance animal. 24 C.F.R ; Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995); Overlook Mut. Homes v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2007); JOINT STATEMENT OF THE DEP T OF HOUS. & URBAN DEV. AND THE DEP T OF JUSTICE ON REASONABLE ACCOMMODATIONS UNDER THE FAIR 17

32 Case: Document: Filed: 07/15/2010 Page: 25 HOUSING ACT (MAY 17, 2004) ( JOINT STATEMENT ON REASONABLE ACCOMMODATIONS ). The United States Department of Housing & Urban Development ( HUD ), the administrative agency charged with enforcement of the Fair Housing Act, has repeatedly pointed to the failure to allow a person with a disability to have a service or assistance animal as an example of a failure to make a reasonable accommodation. In the regulations implementing the Fair Housing Act, HUD provides the following example: A blind applicant for rental housing wants live in a dwelling unit with a seeing eye dog. The building has a no pets policy. It is a violation of for the owner or manager of the apartment complex to refuse to permit the applicant to live in the apartment with a seeing eye dog because, without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling. 24 C.F.R (b)(1); see also 24 C.F.R (providing that public housing must allow assistance animals as reasonable accommodations). Similarly, HUD and the Department of Justice in their JOINT STATEMENT ON REASONABLE ACCOMMODATIONS UNDER THE FAIR HOUSING ACT give the following as an example of a reasonable accommodation: A housing provider has a no pets policy. A tenant who is deaf requests that the provider allow him to keep a dog in his unit as a reasonable accommodation. The tenant explains that the dog is an assistance animal that will alert him to several sounds, including knocks at the door, sounding of the smoke detector, the telephone ringing, and cars coming into the driveway. The housing provider must make an exception to its no pets policy to accommodate this tenant. 18

33 Case: Document: Filed: 07/15/2010 Page: 26 JOINT STATEMENT ON REASONABLE ACCOMMODATIONS at As the Seventh Circuit has recognized, a housing provider s failure to allow an assistance animal needed by a person with a disability is per se unreasonable. See Bronk, 54 F.3d at 429 ( [A] deaf individual's need for the accommodation afforded by a hearing dog is, we think, per se reasonable within the meaning of the statute. ). Assistance animals can have a variety of positive effects on people with disabilities. A clinical study published in the Journal of the American Medical Association involving persons with disabilities with severe ambulatory disabilities who were provided with a service dog found that service dogs were able to perform over 100 functional tasks for their owners, including opening doors, turning switches on and off, helping with dressing, assisting a person in and out of bathtubs, and pulling a person to safety. Karen Allen & Jim Blascovich, The Value of Service Dogs for People with Severe Ambulatory Disabilities, 275 JAMA 1001, 1001 (1996). All participants in the study demonstrated substantial increases in community integration using assistance animals. Id. at Several participants in the study moved to more independent living arrangements after receiving the service dog. Id. In this case, Mr. Murphy made undisputed statements to the testers 1 As the administrative agency charged with enforcement of the Fair Housing Act, HUD s interpretations of the Act are entitled to deference. Fair Housing Council, Inc. v. Village of Olde St. Andrews Inc., 210 Fed. Appx. 469, 482 (6th Cir. 2006) (citing Meyer v. Holley, 537 U.S. 280, (2003). 19

34 Case: Document: Filed: 07/15/2010 Page: 27 indicating that he would not allow assistance animals thereby thwarting Congress goals in enacting 3604(c). Mr. Murphy s statements had the effect of discouraging prospective renters such as the testers from pursuing rental of the cottages before they could even get into the door to apply (See e.g., Tr. at 203 (tester testified that he did not think he could rent the cottage)); see Housing Opportunities Made Equal, 943 F.2d at 652. The statements may have caused psychic injury to prospective renters with disabilities. See Space Hunters, Inc., 429 F.3d at And, Mr. Murphy s statements may have created a public impression that the use of assistance animals is not permissible under the FHA and that the full integration of people with disabilities in the community is not the accepted norm. See Spann, 899 F.2d at 30. Jury instructions are reviewed as a whole to determine whether they adequately inform the jury of the relevant considerations and provide a basis in law for aiding the jury in reaching its decision. Bridgeport Music, 585 F.3d at 273 (quoting Williams v. Paint Valley Local Sch. Dist., 400 F.3d 360, 365 (6th Cir. 2005)). The district court failed to instruct the jury that a failure to make reasonable accommodations fell within the definition of discrimination under 3604(c). A jury might well have concluded that Mr. Murphy s statements to the testers indicated that he would not make reasonable accommodations under the ordinary listener test. Thus, the district court erred in failing to instruct the jury 20

35 Case: Document: Filed: 07/15/2010 Page: 28 that discrimination includes the failure to make reasonable accommodations. III. THE DISTRICT COURT IMPROPERLY GRANTED A DIRECTED VERDICT TO MR. MURPHY IN HIS INDIVIDUAL CAPACITY The district court incorrectly granted Mr. Murphy s motion for a directed verdict. (Tr. at 241.) The court held that Mr. Murphy could not be individually liable for making discriminatory statements because he was acting on behalf of his limited liability company, DJMS 4 Reasons, Ltd. (Tr. at ) The district court s interpretation of individual and corporate liability was erroneous. The Supreme Court has held that an action for damages under the Fair Housing Act sounds in tort. Curtis v. Loether, 415 U.S. 189, 195 (1974); Meyer v. Holley, 537 U.S. 280, 285 (2003). The court has repeatedly applied ordinary tort principles in interpreting the FHA. See id. Under ordinary tort principles, corporate officers are individually liable for their own torts including those committed while acting for the corporation. United States v. Northeastern Pharm. & Chem. Co., Inc., 810 F.2d 726, 744 (8th Cir. 1986); American Airlines v. Christensen, 967 F.2d 410, 417 (10th Cir. 1982) ( It is well settled that if an officer or agent of a corporation directs or participates actively in the commission of a tortuous act * * * he is personally liable to a third person for injuries proximately resulting therefrom. ) (quoting Lobato v. Pay Less Drug Stores, Inc., 261 F.2d 406, (10th Cir. 1958); Seale v. Citizens Sav. & Loan Ass n, 806 F.2d 99, 106 (6th Cir. 1986) (holding that corporate officers cannot be held liable 21

36 Case: Document: Filed: 07/15/2010 Page: 29 for fraud committed by the corporation unless the officer personally participated in the fraud). liability: The Eighth Circuit explained the general rule on personal and corporate A corporate officer is individually liable for the torts that he [or she] personally commits [on behalf of the corporation] and cannot be shield himself [or herself] behind the corporation when he [or she] is an actual participant in the tort. The fact that an officer is acting for a corporation also may make the corporation vicariously or secondarily liable under the doctrine of respondeat superior; it does not however relieve the individual of his [or her] responsibility. Northeastern Pharm. & Chem. Co., Inc., 810 F.2d at 744 (quoting Donsco, Inc. v. Casper Corp., 587 F.2d 602, 606 (3d Cir. 1978)). Courts have applied this principle in cases arising under the FHA. In Moss v. Old South Real Estate, Inc., 933 F.2d 1300 (5th Cir. 1991), the Fifth Circuit reversed a directed verdict entered in favor of two corporate officers who were alleged to have personally participated in or directed acts in violation of the FHA. Id. at The court explained that [i]t is well settled law that when corporate officers directly participate in or authorize the commission of a wrongful act, even if the act is done on behalf of the corporation, they may be personally liable. Id. The court held that if the jury found that the corporate officers directly participated in discriminatory acts or authorized discrimination, they could be held personally 22

37 Case: Document: Filed: 07/15/2010 Page: 30 liable. Id. The court further explained that the plaintiffs could also recover from the corporation for the wrongs of its agents. Id. In this case, the district court erred in granting Mr. Murphy s motion for a directed verdict. It is undisputed that Mr. Murphy told the testers that he considered assistance animals pets and indicated that he had a no pets policy. A jury could determine that such statements indicate a preference, limitation or discrimination based on disability to an ordinary listener. As the individual who made the statements, Mr. Murphy should be held personally liable for violations of 3604(c). IV. THE DISTRICT COURT ERRED IN REFUSING TO ADMIT INTO EVIDENCE PLAINTIFF S TESTER REPORTS AS BUSINESS RECORDS The district court abused its discretion in refusing to admit into evidence the reports of Fair Housing Resource Center s testers as business records. (See, e.g., Tr , 167.) The districts court s error was not harmless. The jury might well have afforded the tester reports greater weight than the tester s testimony at trial unsupported by the reports. Courts have consistently noted the important role that testing plays in rooting out housing discrimination. Richardson v. Howard, 712 F.2d 319, 322 (7th Cir. 1983); Hamilton v. Miller, 477 F.2d 908, 909 n.1 (10th Cir. 1973) ( It would be difficult to prove discrimination in housing without this means of gathering 23

38 Case: Document: Filed: 07/15/2010 Page: 31 evidence. ). As the Seventh Circuit has noted, [t]he evidence provided by testers both benefits unbiased landlords by quickly dispelling false claims of discrimination and is a major resource in society s continuing struggle to eliminate the subtle but deadly poison of [] discrimination. Richardson, 712 F.2d at 322. Testing evidence may be entitled to more weight than forms of evidence because [t]esters seem more likely to be careful and dispassionate observers of the events which lead to a discrimination suit than individuals who are discriminated against. Id. Given the crucial role that testing plays in fair housing cases, courts in the Sixth Circuit have routinely admitted testing reports into evidence. Paschal v. Flagstar Bank, 295 F.3d 565, 580 (6th Cir. 2002); Laudon v. Loos, 694 F. Supp. 253, 254 (E.D. Mich. 1988); Fair Housing Center of Washtenaw County, Inc. v. Town & Country Apartments, No , 2009 WL at *5 (E.D. Mich. Jan. 27, 2009). Courts have admitted tester reports over hearsay objections under either the business records exception or as admissions of a party opponent. Laudon, 694 F. Supp. at 254; Fair Housing Center of Washtenaw County, 2009 WL at *5. In this case, Mr. Murphy s statements to the testers indicating that he would not allow assistance animals lie at the heart of the case. Nevertheless, the district court failed to admit the tester reports recording Mr. Murphy s statements over 24