Can tenants discriminate against potential roommates in the United States?

[The Nimble Pianist]

Disclaimer: This is purely hypothetical. The only people I discriminate against in selecting a roommate are slobs.

I was on Craigslist earlier today looking through the Rooms/Shares category for a new roommate when I noticed the disclaimer at the top informing us that stating a discriminatory preference in an ad is illegal. I wasn't sure if that applied only to landlords, renters, and banks or also to tenants as well. After a little bit of searching I found this:

http://www.equalhousingonthenet.com/index.php?skiptocomments=1

Q: I'm just looking for a roommate. Does this really apply to me?

A: Yes. It is 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 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 Sec. 804 (c)

There are few exemptions from this law. In shared housing where tenants would be sharing a bathroom, kitchen, or other common area, you may express a preference based upon sex – or gender – only.

Now I know there are a number of law scholars here on JREF, so I hope you'll be able to answer my questions:

1. Is this website a credible website? Is what they're saying even true? I ask as there are a few individuals in the comment section claiming that the website is misleading.

2. If the quoted part is in fact true, why does the government allow sex discrimination at the exclusion of all other discriminatory criteria? What is the legal rationale for this? Is being uncomfortable sharing a bathroom and a kitchen with a woman any more rational than being uncomfortable sharing a bathroom and a kitchen with a black person, a Muslim, or a gay man?

[Dunstan]

I just took a quick look at this, and it seems that:

1) Yes, the prohibition on such advertisements applies to pretty much everyone, including roommate situations;

2) I didn't see anything in the statute carving out an exemption for gender preferences (but it's possible this is in the regulations promulgated under the statute); and

3) Certain shared dwellings do get an exemption from the other provisions of the Act. Meaning that, at least in certain contexts, it would not violate the FHA to actually discriminate against potential roommates, as long as you don't print an ad saying that you intend to do so. (And I don't mean simply that you won't get caught or it will be hard to prove -- I mean that only the 804(c) prohibitions on advertising are exempted from the exemption.) Of course, there are still state and local laws to contend with.

So I think the premise for your second question fails. But I don't really doubt that the government could make such a distinction (sex discrimination ok, race discrimination not). Unlike race-based distinctions (which are subject to "strict scrutiny"), gender-based distinctions in the law are only subject to "intermediate scrutiny."

Briefly put, "strict scrutiny" means "you better have a really, really compelling, ironclad reason for this, because we're very suspicious of these kind of distinctions." In practice, it's often said that strict scrutiny is "strict in theory; fatal (to the gov't) in fact" -- it's very hard to meet the burden.

The other end of the spectrum is "rational basis," which means the government pretty much just has to state any vaguely coherent non-discriminatory reason, whether it's terribly convincing or sound policy or not.

Intermediate scrutiny is, well, intermediate. Whether you're talking about roommate discrimination or sex-separated washrooms, I imagine most courts would allow the distinction.

[Madalch]

In Canada (which is absolutely not the US, but I thought it might be interesting to compare), you are free to not accept someone as a roommate, live-in maid/nurse/what-have-you on the basis of religion, skin colour, jerkiness or whatever bigotry/dislike you happen to have.

As to whether or not it'd be legal to state such preferences in the ad itself, I don't know. (It's certainly legal to put such preferences in personal ads.)

[KingMerv00]

Disclaimer: This is purely hypothetical. The only people I discriminate against in selecting a roommate are slobs.

I was on Craigslist earlier today looking through the Rooms/Shares category for a new roommate when I noticed the disclaimer at the top informing us that stating a discriminatory preference in an ad is illegal. I wasn't sure if that applied only to landlords, renters, and banks or also to tenants as well. After a little bit of searching I found this:

http://www.equalhousingonthenet.com/index.php?skiptocomments=1



Now I know there are a number of law scholars here on JREF, so I hope you'll be able to answer my questions:

1. Is this website a credible website? Is what they're saying even true? I ask as there are a few individuals in the comment section claiming that the website is misleading.

2. If the quoted part is in fact true, why does the government allow sex discrimination at the exclusion of all other discriminatory criteria? What is the legal rationale for this? Is being uncomfortable sharing a bathroom and a kitchen with a woman any more rational than being uncomfortable sharing a bathroom and a kitchen with a black person, a Muslim, or a gay man?

Seems true. (http://www.washingtonpost.com/wp-dyn/content/article/2006/02/17/AR2006021700935.html)

[Wolfman]

In Canada (which is absolutely not the US, but I thought it might be interesting to compare), you are free to not accept someone as a roommate, live-in maid/nurse/what-have-you on the basis of religion, skin colour, jerkiness or whatever bigotry/dislike you happen to have.

As to whether or not it'd be legal to state such preferences in the ad itself, I don't know. (It's certainly legal to put such preferences in personal ads.)
Don't think that's quite true.

My brother and sister are both black (adopted). Now, granted this was quite some time ago (about 18 years), but my sister was looking for an apartment, and found a place that seemed quite nice, sharing an apartment with another woman. They talked on the phone, seemed to get on well, and arranged for my sister to come around and take a look. However, my sister had not mentioned her race...when she got there, the woman took one look at her, and informed her that she was sorry, but she'd just rented it out to someone else.

My sister was suspicious of racism, and told me about it. I phoned the same woman, pretending to be another tenant interested in the apartment. She told me that it was still available, and asked me to come take a look. When I got there, she showed me around, and was quite ready to sign a contract.

Now, the situation was fairly urgent...my sister was starting a new job the next week, and decent accommodations in a decent location were very hard to come by. We went to local authorities, and explained the situation. A policeman accompanied my sister to see the woman, and explained to her in no uncertain terms that she was not allowed to discriminate based on race. The woman really had no other feasible excuse for turning my sister away, and ended up taking her as a tenant.

Now, had the woman showed my sister around, acted friendly, then called her later and simply told her, "I'm sorry, but I've decided to take someone else", we wouldn't have been able to do anything (even if she actually rejected her for reasons of race), simply because it would be impossible to make any kind of compelling argument that racism was a factor. But because of the way she did it, we were able to take action.

In the end, despite the rocky start, my sister and this woman actually became quite good friends; it hadn't so much been an "I don't like blacks" thing as a "black women are more likely to be drug addicts" thing. Once she found that my sister was a good roommate, there were no more problems.

So its not that discrimination is allowed; it is an issue that in most cases, it is difficult or impossible to prove to a reasonable degree.

[patchbunny]

In Canada (which is absolutely not the US, but I thought it might be interesting to compare), you are free to not accept someone as a roommate, live-in maid/nurse/what-have-you on the basis of religion, skin colour, jerkiness or whatever bigotry/dislike you happen to have.

Out of curiosity, and not wanting to start a derail, but does that apply for the rental to the main tenant as well?

[Madalch]

Don't think that's quite true.

I don't have a cite- this is something I remember from a high school Social Studies class twenty years ago. The idea is that the government isn't going to force you to live with someone you don't like, in your own home.

If you've signed up for a university residence, the university will randomly assign you a roomy without caring what skin colours you like or dislike. But you can turn away a live-in maid if you don't like her for whatever reason.

This may have been a provincial law rather than a federal one (this was Alberta).

[The Nimble Pianist]

I don't have a cite- this is something I remember from a high school Social Studies class twenty years ago. The idea is that the government isn't going to force you to live with someone you don't like, in your own home.

If you've signed up for a university residence, the university will randomly assign you a roomy without caring what skin colours you like or dislike. But you can turn away a live-in maid if you don't like her for whatever reason.

This may have been a provincial law rather than a federal one (this was Alberta).

See. This POV makes sense to me. I can't understand why the law would compel someone to live with someone they don't like, for whatever reason, in the same way the law wouldn't compel someone to be friends with those against whom one is prejudiced.

[The Nimble Pianist]

I just took a quick look at this, and it seems that:

1) Yes, the prohibition on such advertisements applies to pretty much everyone, including roommate situations;

2) I didn't see anything in the statute carving out an exemption for gender preferences (but it's possible this is in the regulations promulgated under the statute); and

3) Certain shared dwellings do get an exemption from the other provisions of the Act. Meaning that, at least in certain contexts, it would not violate the FHA to actually discriminate against potential roommates, as long as you don't print an ad saying that you intend to do so. (And I don't mean simply that you won't get caught or it will be hard to prove -- I mean that only the 804(c) prohibitions on advertising are exempted from the exemption.) Of course, there are still state and local laws to contend with.

So I think the premise for your second question fails. But I don't really doubt that the government could make such a distinction (sex discrimination ok, race discrimination not). Unlike race-based distinctions (which are subject to "strict scrutiny"), gender-based distinctions in the law are only subject to "intermediate scrutiny."

Briefly put, "strict scrutiny" means "you better have a really, really compelling, ironclad reason for this, because we're very suspicious of these kind of distinctions." In practice, it's often said that strict scrutiny is "strict in theory; fatal (to the gov't) in fact" -- it's very hard to meet the burden.

The other end of the spectrum is "rational basis," which means the government pretty much just has to state any vaguely coherent non-discriminatory reason, whether it's terribly convincing or sound policy or not.

Intermediate scrutiny is, well, intermediate. Whether you're talking about roommate discrimination or sex-separated washrooms, I imagine most courts would allow the distinction.

Thanks for the explanation, though I admit I'm still confused.

What constitutes a "rational reason"? If I'm deathly afraid of a gay man coming on to me, that's about as rational as a woman being afraid of any male roommate coming on to her, is it not?

Would a gay man who doesn't want to live with a homophobic Christian have a rational reason for his discrimination?

I'm still not understanding the distinction here. Either we should all have the legal right to chose who we associate with (including sharing shelter with) in all cases, or all forms of discrimination should be made illegal.

[tesscaline]

Okay. I'm going to give an example from California law.

From: http://www.dca.ca.gov/publications/landlordbook/discrimination.shtml
If the owner of an owner-occupied, single-family home rents out a room in the home to a roomer or a boarder, and there are no other roomers or boarders living in the household, the owner is not subject to the restrictions listed under "Examples of unlawful discrimination".

However, the owner cannot make oral or written statements, or use notices or advertisements which indicate any preference, limitation, or discrimination based on race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability.39 Further, the owner cannot discriminate on the basis of medical condition or age.40

A person in a single-family dwelling who advertises for a roommate may express a preference on the basis of gender, if living areas (such as the kitchen, living room, or bathroom) will be shared by the roommate.41
Those people looking for roommates may not SAY (verbally, or in writing) they are discriminating by anything other than gender. They may, however, discriminate to their heart's content. It's just that they're not allowed to admit to it.

[tyr_13]

"We weren't allowed to run an ad that said 'no Portuguese' but...yeah...no Portuguese..."

[The Nimble Pianist]

Okay. I'm going to give an example from California law.

From: http://www.dca.ca.gov/publications/landlordbook/discrimination.shtml

Those people looking for roommates may not SAY (verbally, or in writing) they are discriminating by anything other than gender. They may, however, discriminate to their heart's content. It's just that they're not allowed to admit to it.

Thank you. I notice it says "owner". Does this apply to tenants who need to fill a recent vacancy made by one of their former roommates?

[The Nimble Pianist]

Also, what is the legal justification for this? Why does the law see it imperative to interject itself in a decision so personal, so intimate as choice of roommate?

[WildCat]

It goes beyond roomates. If you are the landlord, live in the building, and it has 3 units or less you can discriminate for any reason you want - race, age, religion, gender, etc. You'll find you can't advertise that you will exclude those people, but you can't be sued by anyone you turn away because you're exempt from the Fair Housing Act.

My g/f and I live in a 2-flat we own, and in general we won't rent to families with teenaged children. Too much potential for problems and drama we don't want to deal with.

[tesscaline]

Thank you. I notice it says "owner". Does this apply to tenants who need to fill a recent vacancy made by one of their former roommates?Yes, it does. As it says in the bottom portion of the quote...

[Dunstan]

Thanks for the explanation, though I admit I'm still confused.

What constitutes a "rational reason"? If I'm deathly afraid of a gay man coming on to me, that's about as rational as a woman being afraid of any male roommate coming on to her, is it not?

Would a gay man who doesn't want to live with a homophobic Christian have a rational reason for his discrimination?

I'm still not understanding the distinction here. Either we should all have the legal right to chose who we associate with (including sharing shelter with) in all cases, or all forms of discrimination should be made illegal.

I think you misunderstood my post. I was saying that the statute does not have the "you can discriminate by gender, but not by other protected categories" provision that the website you quoted claimed. The rest was just me speculating that, if Congress wanted to pass such a rule, it would probably be upheld as constitutional.* That's where the "rational basis" and other stuff comes in. Sorry I didn't make that clear.

*ETA: And it was poorly-thought-out speculation by me anyway. We're talking about private conduct, not state action. The 14th Amendment authorizes Congress to remedy private discrimination, but doesn't obligate it to. As far as I know, Congress is free to go after different forms of discrimination to different degrees.