discrimination in housing and employment similarities and differences susan saylor associate chief...

Discrimination in Housing and EmploymentSimilarities and Differences

Susan SaylorAssociate Chief Counsel

Department of Fair Employment and Housing Oakland Legal Unit

The Evolution of Fair Housing Law

Four Step Analysis

1. Parallels between Title VII and Title VIII

2. Employment discrimination precedent; borrowing and guidance

3. Substantial equivalency

4. Liberal construction

Parallels between Title VII and Title VIII

Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2 et seq. [Employment discrimination]

Title VIII of the Civil Rights Act of 1968, 42 U.S.C.A. §3601 et seq. [Fair Housing Act (FHA)]

Role of Employment Discrimination Precedent

“We apply Title VII discrimination analysis in examining Fair Housing Act (“FHA”) discrimination claims.” (Gamble v. City of Escondido (9th Cir. 1997) 104 F. 3d 300, 304.)

“[P]rinciples at issue in cases of employment discrimination are often applied in housing discrimination cases.” (Auburn Woods I Homeowners Association v. Fair Employment and Housing Commission (2004) 121 Cal. App. 4th 1578, 1591

Substantial Equivalency

FEHA is intended to be “substantially equivalent” to the Fair Housing Act (FHA) “FEHA in the housing area is thus intended to

conform to the general requirements of federal law in the area and may provide greater protection against

discrimination.” (Brown v. Smith (1997) 55 Cal. App. 4th 767, 780.)

The FEHA is to be liberally construed and is independent

from federal law

Borrowed Concepts from Employment Law

How to prove discrimination McDonnel Douglas burden-shifting analysis for

circumstantial evidence of intentional discrimination Availability of disparate impact theory

Imperfect transfer of ideas from employment to housing

Harassment Reasonable Accommodation

Differences

How Housing Discrimination Law is Unique1. Who is your client?

2. Standing

3. Procedure

4. Damages

Who is your client?

Standing

Trafficante v. Metropolitan Life Ins. Co. (1972) 409 U.S. 205, 210 [Any person harmed by a discriminatory act has standing to sue.]

Plaintiffs alleged that they were harmed by living in a racially segregated community

“The person on the landlord’s blacklist is not the only victim of discriminatory housing practices; it is …‘the whole community.’”

Plaintiffs

Anyone who claims to have been injured by a discriminatory housing practice

Persons who believe “they will be injured by a discriminatory housing practice that is about to occur.”

Testers Fair Housing Councils

Procedure

No exhaustion requirement

Damages

Compensatory and Punitive Damages Humiliation, Embarrassment, Emotional Distress,

and Other Intangible Harms Fair Housing Council Damages

Unruh Statutory Damages $4,000 per discriminatory act

THE END