7th Circuit takes up fair housing case

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Everyone knows that it violates the Fair Housing Act to discriminate based on religion when selling or renting a home.

But it is still an open question whether it violates the Act to “constructively evict” someone by making her life unbearable after she has purchased a home.

However, the question could be resolved soon. On May 13, an en banc panel of the Seventh Circuit heard oral arguments in the case of Bloch v. Frischholz, in which a Jewish condominium owner claims that the condo association’s prohibition on a mezuzah outside her door effectively bars observant Jews from living in the building.

A mezuzah (mezuzot, pl.) is a parchment with two biblical passages from Deuteronomy, placed inside of a casing usually no more than six inches long, one inch deep, and one inch wide. Mezuzot are required to be placed on doorposts in accordance with Jewish law.

New Rule

In 2001, the Shoreline Towers Condominium Association in Chicago adopted a facially neutral rule prohibiting “objects of any sort” from being placed outside owners’ doors.

The chair of the committee adopting the rule was Lynne Bloch. At that time, however, the only objects removed by the association were a swastika and a poster featuring a marijuana leaf.

In 2004, however, the association began stricter enforcement of the rule, interpreting it to forbid the placement of anything, including a mezuzah on doorframes.

The association repeatedly removed the mezuzot placed by Bloch outside her door, and she repeatedly replaced them. After the death of Bloch’s father, the association even removed the mezuzah during the funeral, although it left a coat rack and table that had been placed in the hallway for the shiva (a seven day mourning period).

After returning from the funeral with her rabbi and finding the mezuzah gone, Bloch brought suit under the Fair Housing Act. The district court granted summary judgment in favor of the association, and the Seventh Circuit affirmed on July 10, 2008, with Judge Diane P. Wood dissenting.

The majority held that while the act forbids discrimination, it does not impose any requirement that religion be accommodated, and concluded that making an exception to a facially neutral rule for mezuzot would be an accommodation not required by the act.

Full Court

On May 13, the court reheard oral arguments en banc.

The Fair Housing Act prohibits discrimination in the “terms, conditions, or privileges of sale or rental of a dwelling,” but does not address discrimination after acquisition of the property.

Whether the act permits a claim of constructive eviction of a condominium owner, based on conduct after the owner has purchased the property, is a question that the court explicitly left open in Halprin v. Prairie Single Family Homes of Dearborn Park Association, 388 F.3d 327 (7th Cir. 2004).

Arguing on behalf of the condo association, David C. Hartwell, of Penland & Hartwell LLC contended that the act does not allow claims of constructive eviction based on postacquisition conduct, but is limited to conditions of sale.

“The language is clear on its face that it doesn’t apply,” Hartwell said.

To that, Judge Wood said, “I wouldn’t argue that if I was you. When attorneys on both sides argue that a statute is clear, it usually means it is not so clear after all.”

Bolstering Bloch’s case is the fact that the Department of Housing and Urban Development has interpreted the statutes to include postacquisition conduct, raising the question what level of deference should be given to that interpretation.
Fair Housing Act

When Hartwell contended that HUD’s interpretation constitutes a rewrite of the statutory language, Judge Frank H. Easterbrook instructed Hartwell to cut out the op-ed page rhetoric. Judge Wood added that it is standard procedure for federal agencies to define terms such as “conditions of sale,” and that as long as the definition is reasonable, it must be given deference.

Returning to the specific issue of whether the act applies to postacquisition conduct, Judge Michael S. Kanne asked Hartwell whether it would violate the act if the association were to prohibit owners from having African-American guests.

Judge Diane S. Sykes questioned whether it would violate the act to suspend the trash collection of Jewish residents. When Hartwell admitted that it would, Wood replied, “That’s postacquisition conduct. So you admit postacquisition conduct is actionable?”

The discussion of whether the act forbids constructive eviction came to a sudden halt when Judge Richard A. Posner asked Hartwell whether the association could amend its rules to require that Jewish residents wear yellow stars on their clothing.

From there, questioning shifted to whether, on the facts in the record, a jury could find that the association singled out Jewish tenants by their actions in this case.

On this issue, Hartwell contended that the only evidence in the record of discrimination was “continued uniform interpretation” of the hallway rule, and that while the funeral incident was an unfortunate incident, it was not based on any discriminatory intent.

Misunderstanding

Hartwell contended that the condo board did not understand the significance of the mezuzah at the time of their actions, and ultimately rescinded enforcement of the hallway rule, once it did.

The court asked no more than cursory questions of Bloch’s attorney whether the act permits a claim for constructive eviction, focusing instead on whether there was sufficient evidence for a jury to conclude that the association acted with discriminatory intent.

Asked what evidence in the record proves discriminatory intent, Gary Feinerman referenced both the funeral incident and personal animus between Bloch and one of the association’s board members.

But Posner maintained that the personal animus actually undermined Bloch’s claim of discrimination, because the act does not forbid harassment based on personal reasons.

In response, Feinerman posed the hypothetical of a white neighbor burning a cross on the yard of a black neighbor, and then claiming he has no animus against blacks, but only personal dislike for his neighbor. Whatever the motivation for the cross-burning, Feinerman contended that such an action would still violate the Fair Housing Act.

Easterbrook asked what evidence shows that enforcement of the rule was discriminatory, rather than an “empty-headed” failure to understand the significance of the mezuzah. Feinerman cited the funeral incident, in which the coat rack and table were left in the hallway, with the mezuzah — the only religious item — targeted for removal. “This mosaic of evidence could lead a reasonable factfinder to find that the association’s actions were not empty-headed, but were deliberate targeting of Jewish residents,” Feinerman said.

The case is Bloch v. Frischholz, No. 06-3376.