HOUSING DISCRIMINATION SPRING 2011 FINAL EXAM: BEST STUDENT ANSWERS

QUESTION I: BEST STUDENT ANSWERS

Question 1B: Student Answer #1: This was the best overall answer, strong on the majority and pretty strong on the dissent. Majority: Affirmed. The Fair Housing Act does gives rise to disparate impact cause of action under 3604(a) where a netural policy forces religious individuals to choose between housing of their choice and performing religious obligations.

When Congress sought to provide fair housing by passing the FHA, it included religion as one of the classes protected by the act. It is our fair assumption that Congress meant to do this in order to provide religious persons all of the protections of the FHA, including the protection of the disparate impact claim.

The disparate impact claim is an important part of the Fair Housing Act's framework. Without it, the FHA would be disarmed of its ability to to attack neutral policies furthering discrimination. It is clear from the legislative history that Congress intended to allow such a claim within the limits of Title VIII, particularly considering that Congress rejected a proof of intent clause from the final version of the act. Title VII includes a disparate impact claim. And as a practical concern, disparate impact claims are necessary to seek out discriminatory policies when motivations are well masked by sophisticated players in the market. While this Court for many years has withheld ruling on the validity of this claim in generally, we sense that the time has come. For the past thirty years, disparate impact claims have been alive and well in our circuits. In that time, Congress has done nothing to address the widespread application of such claims, both to government and private defendants. In light of legislative inaction, this Court takes the opportunity to place our seal of approval on a widely accepted and important cause of action.

While the dissent expresses concern about using disparate impact to create a claim for religious conduct instead of status, this Court recognizes that religious status, as protected by the FHA, is inextricably linked to conduct. For example, in Bloch, the 7th Circuit recognized, en banc, that it could be possible for the defendant HOA's rule to make plaintiff's unit "unavilable" by restricting their ability to place a mezuzot on the door. While Bloch was a disparate treatment claim, the court recognized the evidence provided by the Rabbincal Council of Chicago and other Jewish groups that "a Jew who is not permitted to affix mezuzohs as aforesaid to all of the doorposts of his dwelling would therefore be required by Jewish Law not to live there." Additionally, under Bloch, the 7th Circuit required a showing that the tenants had actually been constructively evicted (i.e. left the tenancy) as a result of the restriction in order to make a claim under 3604(a).

Following the dicussion in Bloch, we limit our holding here today. It is essential for this Court to effectuate the goals of the FHA by protecting religious conduct that is inextricably linked to their religious status. Not all conduct under the guise of "religious" will qualify for such a claim. As such, we remand to the lower court for findings on the impact that limiting this conduct has on each individual plaintiff's religious status. Additionally, we adopt Bloch's requirement of constructive eviction for plaintiff's to make such a claim. Thus, we instruct the lower court to investigate which, if any, of the tenants actually vacated their apartments as a result of the "open-flame policy." This additional requirement will have the additional benefit of limiting claims to those plaintiffs who see their conduct as so inextricably linked to their religious status to leave their apartments, thus mitigating the dissent's concerns about frivolous claims and non-essential religious conduct being litigated.

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Additionally, this Court recognizes that the existence of several different tests for disparate impact have been spawned in the circuits. As a preliminary matter, this Court holds that here, in religious conduct disparate impact cases, the ideal analysis will be the widely accepted Arlington Heights II. This will allow for Plaintiffs to pursue disparate impact claims where there is some intent, but not enough to meet a full disparate treatment claim. It will also evaluate relief, and balance a defendant's interests in pursuing the neutral policy.

Dissent: I vigorously dissent. The majority has effectively taken the FHA into its hands and written in a new provision, allowing for a religious reasonable accommodation. Such a step is best left to Congress to decide, considering the large imposition it places on landlords who are only seeking to implement neutral policies.

There are several difficulties here. First, there is the issue of conduct versus status. Here, the plaintiffs are claiming that their LL made housing unavailable because they were unable to conduct traditional religious ceremonies. The FHA, however, is concerned with protecting status, and not the ever-changing fads of conduct that sweep through our society.

It remains unclear to me whether Congress intended to grant a claim of disparate impact for religious conduct. The FHA does not contain any specific provision allowing for the litigation of "disparate impact" claims without discriminatory intent. In fact, this court in Huntington Branch refused to address the issue of whether the disparate impact test is appropriate under Title VII or whether the formulation used by the 2nd circuit was appropriate there. For years, this Court has witheld any decisions as to the validity of disparate impact for the reason that Congress was so unclear. This issue should be addressed by Congress. For the Court to take it up here, and on such a questionable fact pattern as thing, addressing religious conduct, a class that has never been applied to disparate impact even in our circuits.

Many of the tests for disparate impact actually consider intent (Arlington Heights), so that disparate impact becomes a way to get at discriminatory treatment cases when the intent evidence is too weak or too well masked. But here, we have no such indications that discrimination is occurring. D has a legitimate reason for his policy, and the policy is applied neutrally. Additionally, the legislative history cited by the majority on the necessity of disparate impact is highly suspect here. There are many reasons why Congress may have failed to include an intent provision in the FHA. The process of legislation is as much about political capital, and negotiation as it is about rational decision-making. There is nothing of value to be taken from so slight a historical fact.

Then, there is the issue of remedies. Consider what will happen if Ps are allowed to make their claim. Under Arlington Heights, there is no evidence of bad intent, strong safety interest in keeping the policy, and the relief sought places a huge imposition on the LL. Under the 4th and 10th amendment, the legitimate goal for the policy would weigh strongly in D's favor. Based on these facts, a court would be unlikely to ban the "open-flame policy" for all tenants. Instead, a court would likely seek to grant so-called "exceptions," which look suspiciously like a handicap reasonable accomodation claim. The only problem here is that reasonable accommodations for religion are nowhere in the statute.

Under the rule granted by the majority today, anyone can take issue with a LL's legitimate, neutral policy by claiming a "religious exception." Courts will be flooded with litigation, and forced to address ridiculous claims. If the landlord requires tenants to keep their entrances free of clutter, someone may argue that their religion mandates them to live in a state of blessed chaos. The results will be utterly ridiculous. Leave the legislating to Congress.

Question 1B: Student Answer #2: This answer had what I thought was the best majority opinion in the class, but wasn’t as thorough in the dissent as the first model.

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Majority: The Court of Appeals is affirmed and the case is remanded to the lower courts to determine the extent of the discriminatory effects and if the defendant's reasons behind the policy are important enough to outweight those effects.

The main issue that has been presented to this court for certiorari is whether the FHA gives rise to a disparate impact cause of action under 3604(a) where a neutral policy forces religious individuals to choose between housing of their choice and performing religious obligations. The FHA explicitly prohibits discrimination in housing on the basis of religion, amongst other characteristics in §3604(a). "Except as exempted, it shall be unlawful- (a) to refuse to sell or rent after the making of bondafide offer, or to refuse to negotioate for the sale or rental of, or oterwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex familial status, or national origin." This statute clearly gives people with sincere religious beliefs protection against discrimination on the basis of those beliefs.

The trial court below found that the claim brought forth by HUD did not state a claim upon which relief can be granted because there was no actual exclusion from housing, and that exclusion is necessary for disparate impact claims. We disagree with the trial court for the following reasons.

Disparate impact claims and analysis are allowed in cases whether there is a facially neutral policy that results in a discriminatory effect against people of a protected class, in this case people with sincere religious beliefs. The defendant's policy while neutral on its face has a disparate impact on religious individuals. It is not necessary to show discriminatory intent in such cases for the claim to succeed.

First, after an analysis of the statutory language and legislative history behind the FHA we think it is reasonable to assume that it the protection of religious practices was intended. The dissent will argue that the people in question have already acquired the housing and so there is no way that 3604(a) applies, because it is applicable only to the acquisition of housing. However we feel that the relevant part of 3604(a) would be "to otherwise make unavailable or deny." Being unable to practice a religion as mandated by that religion inside their dwelling would effectively make that housing unavailable to those people. In Bloch, the 7th circuit held that in some circumstances there can be an action under the FHA for post acquisition behavior. Their interpretation of §3604(a) is valid and this court adheres to their interprtation. To prevent a person from practicing their religion is making that housing unavailable to them, religion is a right protected under both the FHA and US constitution. It is unreasonable to assume congress intendeded that under the FHA people are protected against religious discrimination in the acquisiton of housing but not protected once that housing is acquired. That would mean that people "leave rights on the steps," of their homes. The dissent argues that religious practices are conduct and not status and that the FHA was designed to protect against discrimination based on status. However, the status of religion is necessarily connected to the conduct performed as required by that religion and this court will not make a distinction between religious status and conduct for the purposes of this question. The use of "making unavailable," in the statute does not only refer to the physical conditions of the property but to the actual ability to reside within that dwelling. Bloch 297. Therefore, disparate impact claims can be extended to situations in which post acquisition actions by a landlord effectivly make the housing unavailable to members of a protected class. Additionally, Burns owns a 144 unit development not a small building or a few condos. This policy affects a large number of people most of which are probably religious and therfore unable to practice their faith.

Furthermore, the seventh circuit held that most of these cases will take the form of constructive eviction. The policy in question is so discriminatory that it constructively evicts people by prohibiting them from practicing their religion. The dissent will argue that there was no constructive eviction because none of the people in question ever left. However this claim is not brought by an individual but by HUD who brought the claim forward under the assumption that

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this policy is actually preventing people from practicing their sincere religious beliefs. There is no evidence as to whether those people actually left or not and the this court finds that evidence irrelevant to the question at hand, whether or not a disparate impact claim exists in these instances. It would be nonsensical to argue there is no claim because HUD never left and so there is no constructive eviction. While that argument may have worked in Bloch because there was an actual plaintiff in that case that argument will prove unsuccessfull in this case.

In Bloch the practice in question was putting a Mezuzah outside the door of a home and it was prohibited by the homeowner's associations hallway rules. While there is no homeowner's association in this case, the defendant Burns has acted as a homeowners association in imposing building wide rules against open flames that are not mandated by the state or local government. Prohibiting the use of candles prevents people of many religions from practicing their faith. In this case HUD recieved various complaints from jewish, buddhist, and catholic people all which claim that the "no open flame" policy has made it impossible for them to live within this building. Especially since Burns has turned down all requests for exceptions of any kind. The biggest difference between Bloch and the current case is the reasoning behind the prohibition. In Bloch it was for aesthetic reasons while in this case Burns claims it is safety concerns. The court in Betsey came up with a disparate impact test for private defendants like Burns, in that test the court does a balancing test between the harm to the people of the protected class and the business reasons presented by the defendant. This court holds that test is a proper test for disparate impact claims. Furthermore we briefly apply that testto the facts of this case while not explicitly answering the question of whether or not the claim is succesful.

The protected class in this case is religious individuals and the harm to them is that they cannot live in this building solely because of a protected characteristic, religion. Burns profers safety as the reason for the policy. However, burns also specifies a number of precautions and steps he has taken in order to prevent a fire in the building. These protections include electric appliances as opposed to gas appliances, more sensitive smoke detectors, more ifre extinguishers, and comprehensive sprinkler system. It seems unreasonable to assume in light of the extent of precautions Burns has taken that votive candles or incense burning will result in a devastating fire that consumes the entire building. It is because he has put these precautions in place that the disparate impact claim seems most legitimate. The safety concern behind Burn's policy looses a great amount of force when viewed in light of the extensive precautions Burns has taken. This court finds that if the discrimination against religious practices is significant enough it would outweigh the safety concerns of burns. A devastating fire resulting from candles used in religious practices is not reasonable in light of all the precautions taken.

The dissent argues that there is no discrimination because it affects people of all religions equally. None of them are allowed to practice their religions. However just because the policy applies universally to all religions that use open flames in their practices does not mean that there is no discrimination. That is the equivelent of saying, there is no discrimination because no minorities are allowed in the building, therefore the policy applies to all minorities equally. There is no validity in this argument and the majority rejects it. Additionally, there could be religions that do not use open flames in their practices. That would allow them to practice their faith in Burn's building without a problem. There should be no distinction between religions that use open flames and those that do not. That is not a kind of distinction this court has been willing to make in the past and we will not make it now either. Discrimination is not contigent on the number of people/religions/races that are affected by it it is contigent on whether or not the actions of the landlord make the housing unavailable to memers of protected class.

Lastly, the trial court held below that this was a reasonable accomodations case and that reasonable accomodations are only given in handicap cases. However, the court in Bloch would have allowed for a reasonable accomodation if they had found that there was actual discrimination. According to case law a reasonable accomodation and how appropriate it is must

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be considered in terms of necessity and reasonableness. The tenants of the building have asked Burns to make exceptions and he has refused. It is necessary to make this accomodation to allow people to exercise their freedom of religion within their homes and it is reasonable to make such an accomodation in light of all the safety precautions he has put into place to avoid a fire. There is no part of the statute that explicitly prohibits the extension of reasonable accomodations to religious cases and this court finds no reason why that extension would not be appropriate after cases like Bloch where the religious accomodation was considered at lenght.

There are two purposes to the FHA to prevent discrimination and further integration. Whether the discrimination is intentional or not is not relevant if there is in fact discrimination. That is why this court has allowed disparate impact cases in the past because there has been discrimination even if not intentional and it needs to be addressed. The FHA clearly protects against discrimination based on religion. Case law and statutory interpretation support a finding that there are disparate imapct claims that can be brought under §3604(a) of the FHA act and that those claims are inline with the twin purposes of the statute. This court finds disparate imapct claims not only exist in these cases, but are valid. The court does not address the question of whether or not the claim is successful in this case even though we engaged in some analysis on the issue. We remand the case to the lower courts to determine the extent of the effect and weigh it against the business needs of the defendant. While this court has briefly engaged in this analysis above we remand this case for judgment in accordance with the analysis above. Dissent: The Federal Housing Act was not passed by congress in order to protect post acqusition actions by a landlord. The purpose of the statute is clear in that it is meant to protect against discrimination in the acquisition of housing. In this case what is at issue is the personal decision of an individual to practice a religion and in some cases forgo the housing opportunity provided by Burns to comply with self imposed religious requirements. The trial court was correct in finding that §3604(a) does not apply to post acquisition claims, but only to pre acquisition. Furthermore, the policy in question applies universally to all religions in that no religious person can engage in practices that include open flames.

The actions in question are conduct not status and the FHA does not protect against discrimination based on conduct but against discrimination based on status. Burns allowed them to rent the apartments and has allowed them to live there without any discrimination whatsoever. His intent was not to discriminate but to ensure the safety of his building and those people that reside within it. The safety concerns of Burns greatly outweight the need to use open flames in religious ceremonies.

Lastly, the majority claims that constructie eviction has occured in this case but there is no evidence that any of the people who complained to HUD actually left the building. If they have not left the building there can be no constructive eviction analysis, them leaving is a necessary aspect of that claim.

The majority has erred in holding that a disparate impact claim for post acquisiton behavior is available under the FHA, the language of the statute does not support this conclusion and neither does precedent. Section 3604(a) clearly deals with the acquisition of housing.

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QUESTION II: BEST STUDENT ANSWERS :Question II: Student Answer #1: The best overall answer; strong on both technical and substantive critiques.

Technical problems:

1. "is not appropriate" - this language makes it unclear whether the statute is attempting to tell courts that it is not good policy to apply the following doctrines/ aspects of T7, or whether it is actually negating discretionary authority.

Change: Based on W's intent to "ban the application of T7" she would want to say "shall not" which creates a duty for the court NOT to apply it. Further, the entire intro sould be written in active voice, specifying that a court or agency is applying the doctrines.

2. Parallelism- the beginning of each section is different, & statutes should be consistent, expressing ideas in the same way with a maintenance of parrallel sen. structure so that it is easiest for courts and consituents to read and understand.

Change: "The futile gesture test" & "The affirmative action test" & "The hostile environment harassment test" or something otherwise parallel.

- "the use of the test for judging the lawfullness of affirmative action" is also way too long and has unnecessary words. Change to above or something similar.

3. "so-called" - this is not needed and is too colloquial for the statute.

4. "futile gesture" - if the legislature finds this too unclear it should be defined in this subsection. Quotes around it are unnecessary. If defines, it should be connected by "is" or "means"

Change: eg, The futile gesture doctrine;

5. "in employment" w/i pt. (2)- this is redundant. the subsection begins with Title VII which shows the rest of the statute will be discussing employment tests/ claims.

6. ...by a landlord "OR a rep of the LL" - reps are always included as LL b/c of vicarious liability which is provided in other section of the FHA. Therefore not needed here and can be entirely omitted.

7. Landlord... "in the context of rental units" - two problems w/ this. If there is a LL, he owns the complex, therefore the tenant is a tenant and not an owner and is renting SO rental units are already inferred necessarily and don't have to be stated. IF rep also wanted this to extend to condo associations, eg, which could perhaps being a hostile environment claim against if they were harassing the tenant, then this should also be omitted and LL should be changed to LL or CA. Don't see why the context would be any different if W didn't want it to apply to LL.

8. Re: hostile environment claim- the stat refers to "amount of discriminatory behavior necesary for HE claim" BUT it seems from W's intent that she wants to bar application altogether, which is different from simply saying cts should still have the claim but not use the same evidentiayr burden as T7.

change: "HE claim" or test.

- also if trying to ban the claim, W can omit the amount of behavior nec'y b/c if no claim, no need for information re: evidence.

Substance: Housing & social policy

W's ban on futile gesture

CONS of disallowing: FG is good public policy for FHA claims for a series of reasons:

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1. the burden of humiliation occasioned by discrim against a P is heavy, & if P is sure he will be rejected, "shouldn't have to submit to explicit & certain rejection" Fraiser. 2. even though the P was unwilling to engage in the futile gesture of submitting an offer for the prop or submitting an application, the P is still a victim of discrimination. 3. Courts need to be concerned that if the D's discrim is so entrenched that no one of a particular protected class applies.

Further, the only way the FG applies now (w/o W's amendment) is if P's evidence of the D's discrimination is so overwheming that its obvious applying wouldn't have done any good (eg, like in Frasier b/c no blacks had EVER been accepted & the housing was in an area where blacks lived, so it was clear to the ct. that D's discrim was successful). Therefore, this won't pose the problems of judicial inefficiency or insurmountable litigation b/c this type of clear proof is not usually available. Finally, the fact Ps take the time and resources to bring these claims shows that they care about the discrimination and it affected them.

PROS: On the other hand, W's amendment may be good b/c of several reasons: If P was so sure of being rejected before applying to the D, why would P be humiliated? It is illogical to argue that someone that KNOWS something will happen, can mentally prepare for it, would be so humiliated. The application is a mere formaility and operates as a bar to suit without merit.

Also, While FG works well in employment this is b/c emply. & housing are very different. the point of FG in emply is b/c many emply. suits concern promotions, therefore hte P himself has individual evidence from experience in the workplace on the basis of other employees (show that there have been other employees rejected in the class so there was no point). Second, in the emply context, the humilitation would often be worse b/c other employees would know about it, perhaps witness it, and it would not be internal embarassment like (likely)in housing. In emplymeny, the humiliation would be public. & in the job sector the P may run into the same employees co-workers later at another job in the same industry, still unable to escape the memories of embarassment.

W's ban on Affirmative Action (AA) test in Starrett

CONS of disallowing AA claims: the effect on minorities is more important than intent, & affirmative action programs could help break the cycle of segregated communities, helping minorities more from a poverty-stricken area into an itnegrated community. Looking beyong the text of the FHA to its purpose of achieving integration, it makes sense that it should not be read literally & used to prevent a policy which would actually aide in integration. It combats the problems of tipping & white flight (see so Sub) and if integration is not sometimes used to trump discrimination, it can result in hypersegregation (American Apar) where there is a black minority slum area surrounded by white suburbs.

Further, By requiring the D to rebut a discriminatory effect of an AA prgm, it reuqires the D to be proactive and think before implementing it what effects it would have that D could be liable for. Thus it makes the D actually use better proactive business practices.

PROS of Disallowing AA: AA prgms in housing can ultimately restrict black residential choice and D's attempts at integration, although seemingly laudable, so nothing to alleviate the larger problems of segregation. At best, they may permit a few blacks to live in integrated areas if they can qualify for a mortgage (Amer Apar 227). Further, treating a person differently b/c of race implies the consciousness of race and the purpose to use it as a decision making tool (So Sub). It can restrict minority access to desirable rental acconomodations otherwise available. It may also aggravate racial tensions b/c it allows for the color of skin to impact availability of housing, thus thearting the goal of living in a truly color blind society. Therefore, implementing D's burdens of evidence in housing should be the same as T7 b/c it is just as important to integrate in housing as emplyment.

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Hostile Environment Ban

CONs of Banning HE: Allowing HE makes sense in housing b/c a person cannot truly enjoy their rights if the housing environment is hostile, leading them to fear for their safety or well-being (&enjoyment of rts is protected by FHA). The applicality looks to a variety of factors, like the frequency of the conduct, severity, whether it is physically threatening or humiliating, & whether it unreasonable interferes w/ the ability to use or be comfortable in the residence. Therefore, this claim requires a decent amount of evidence to protect the D if he has a bad day and utters something offensive (as was the case in Discenso), but allows the P protection if the conduct is sufficiently egregious. Further, HE is nec'y for P b/c the home is supposed to be a safe place, & if someone is accosting P it means every time P walks to the door P will be worried. If LL is harassing, who would P complain to? P would otherwise be left with no remedy. Plus, the LL-tenant relationship is an ongoing contractual one

PROs of banning HE: In employment, the P has to be at work all day with co-workers and employment MGMT. Therefore the effect is substantially lenghtier than in housing where the P may only have to see the LL once per month or less. Further, the P would likely have a claim under 3617, interferece w/ rt. to enjoy home, if the conduct was really threatening or coercive, thus it wouldn't completely eliminate P's remedies.

Question II: Student Answer #2 (Technical Critique Only) This answer felt very smart to me and was probably the strongest technical critique.

First, it is unclear what the purpose is for these proposed amendments. It would be helpful to include a preamble for the proposed amendments to explain its purpose, but this explanation will not be necessary if ratified, b/c the purpose of §3604 is rather clear. See §3601.

Because Rep. Waffle wants to "clarify instances" as to when Title VII analysis is approrpriate in a housing context, I will proceed under the assumption that she wants to ban the use of these three specific cases because she believes they are merely inapplicable to housing. [Good idea to state premises at outset.]

Overall Structure: The statute is poorly-worded. First, change "Employment of Title VII analysis . . . is not appropriate in the following situations:" to the following: "FHA claims will not be analyzed using Title VII analysis in the following three situations:" This fixes a number of problems:

a. Using the word "employment" as a verb when talking about Title VII is very confusing (i.e., the subject-matter of Title VII is employment; this creates confusion.)

b. Eliminates the "is not appropriate" language. That phrase was ambiguous: "is not approrpriate" means never apprporiate? Sometimes not appropriate? That it is simply a weak standard? That it implies there is a better framework to use? Saying "will not be analyzed" eliminates these ambiguities, and refrains from using the unhelpful phrase, "shall." I am also mindful that saying "are not to be analyzed . . ." creates similar ambiguity problems to its original phrasing. Finally, I am mindful that "will not be" may create problems as to timing, but I believe it is better than "shall."

c. Saying "in the following three situations" creates an exlusive list, there though will be room for interpretation here by the courts --> a good goal. Assuming that Rep. Waffle's goals were to prevent only these three uses, stronger language could be used ("only the following three situations"); but b/c her intent is unclear, the language I chose will be workable by the courts, with the intent probably that it is exclusive (exlusive creates more predictability; people know how to plan accordingly to comply --> beneficial)

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d. It may also be beneficial to change "Title VII" analysis to something more specific, such as "McD-D burden sihfting analysis" if this is her goal

Subsection (1): Reword this subsection to say: "when applying the "futile gesture" claim, or similar, analysis…” Reasons:

-the "so-called" language is superflous and unnecessary

-including "or similar" in the subsection seems to do what the "so-called" language was intending to do

-since Rep. Waffle wants to "ban" its use; I am assuming that she wants to ban this test and anything similar, hence the inclusion of "or similar" ("ban" is strong language)

-this rephrasing also allows the statute to naturally flow into the subsections, so that it reads like a coherent paragrpah and complete thought (more understandable)

Subsection (2): Reword this subsection to say: "when evaluating the lawfulness of affirmative racial-integration maintenance programs" Reasons:

-this subsection is horribly written; I am proceeding under the assumption that Sen. Waffle is trying to say you can't apply the Title VII Affirmative Action test (four factors) to a housing context

-the use of "affirmative action cases in employment" is redundant; we know we are dealing with applying Title VII standards; there is no reason to include the "employment" or "affirmative action" language

-"evaluating the lawfulness" is more precise than "judging the lawfulness" --> unless she was trying to get rid of a test or balancing altogether (in which case I would make a suggestion other than "evaluation" ... maybe "determining")

Subsection (3): Reword this subsection to say: "when determining whether a hostile environment sexual harassment cause of action against a landlord has been stated" Reasons:

-original too wordy; if dealing with sexual harassment hostile environment; a LL's "discriminatory behavior" is a given

-"by a landlord or by a representative of the landlord" is superfluous in the main subsection. Pehaps add a sub-sub section that says "(3)(a) "Landlord" includes a landlord or a person or persons representing the landlord"

-the "rental units" seems superfluous as well --> if we are dealing with a LL, it is almost surely a rental (though this could also be another addition, (3)(b): "this provision only applies to rental units")

-original use of "by" was ambiguous: "by" a LL meaning it is HIS claim? probably not --> probably meant "by" to mean harassment done by the LL

(SUM) As a whole, the statute is rather wordy and hard to understand. By simplifying it and cutting out/rephrasing some words (and possibly adding a few more sub-subsections), it is far easier to understand.

Question II: Student Answer #3 (Substantive Critique Only): The substantive critique in this answer is very strong, especially for subsections (1) and (3). Under the point system I used, it received fasr and away the highest score for thev substantive critique.

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Purpose of the Amendment: Appears to eliminate analogies to Title VII. Only one clear goal however, which is to eliminate futile gesture theory. Unclear as to whether Benign Discrimination Integration maintenance would be valid/invalid and unclear as to new standard for hostile environment.

Pros

1. Title VII is not Title VIII. Although they were drafted and passed in the same decade, they protect different areas of society. Statute could be first step towards differentiating them, which could arguably be a good thing, because courts use Title VII almost too much as a crutch, and dont' allow themselves to think creatively and come up with flexible solutions to the problems that are specific for housing. Also, lack of Title VII standards could result in less summary judgment, allowing FHA claims to come to forefront, which would increase society's knowledge about their rights.

2. Futile gesture claim may be good for employment, where dissemination of information often directly stems from employer, but is somewhat ill suited for Housing context due to different medias [craiglist, real estate agents, word of mouth] in which housing provider's intent could be incorrectly construed [however, other prongs of PInchback test protect this....]. Also, Pinchback is only case where futile gesture has been applied in FHA context [as far as MF knows] and unlikely that getting rid of it would be such a big deal especially since there is liability for real estate agents and 3604(c) protects those who make a decision not to obtain housing due to suggested preferences. Furthermore, Pinchback rule can result in floodgates of meritless cases because people will think they would get turned down, bring a case, and discover that they would have been accepted.

3. Abolishment of Title VII for Integration maintenance depends on what will replace it. If courts are left without guidelines they would be left with two choices in Starrett-esque situation: literal violation of 3604(a)- so program not valid or literal violation of 3604(a) but program valid because benign and advances integration. This may be good because it would be more simple, eliminate the duration factor and result in less "pocket ghettos." Furthermore, Title VII in employment context is often subset of other factors such as skill/ability, in housing it is strictly based on race. Maybe not appropriate for this reason. Furthermore, [footnote Starrett] Title VII cases have not been concerned with tipping beyond which a work force might be segregatd; reducing tipping is main aim of integration maintenance. Since goals are different, standards should be as well.

4. If Title VII standards are abolished for hostile environment, Court's probably will turn to 3617 and CFRs for guidance. However, CFRs are vague, and mainly just state "because of sex." Without Title VII, HUD could enact CFRs related to hostile environment to provide clearer picture and command Chevron deference. Taking away Title VII crutch could force courts to tailor new rules for these situations which are clearly an issue that needs consideration. "Severe or Pervasive" [Dicenso] is too strong, and as case shows, can result in meritorious claims failing - woman was touched-should be severe enough. However, title VII test focuses on all circumstances because employee interacts with employer everyday. Not appropriate for housing considering that length of relationship may be much shorter [re month to month lease] and one incident should be enough in such a circumstance.

CONS

1. Two statutes are part of a coordinated scheme of CR laws enacted to end discrim; SCOTUS has held that both statutes must be construed expansively to implement goal; therefore, they are meant to go hand-in-hand and often Title VII is necessary to provide relevant material on new situations. Step towards eliminating some analogies could result in movement towards separating

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all. Unnecessary to even mention Title VII in statute-too confusing; maybe some Courts/landlords/housing providers don't even know what the Title VII standards are, but know the Pinchback, Starrett and DiCenso rules. Could result in a lot of confusion.

2. Pinchback rule is good because it alleviates a potential T from having to place self in embarassing situation in which they have nothing to gain. Often, real estate agents are fairly certain of policies and Pinchback rule also makes necessary that complex/provider would have actually rejected had applied, so no confusion or harm to innocent providers, but substantial benefit in situation where discrim. providers cause damage.

3. Starrett rule has its faults. However, its unclear what would replace it. The 4-prong test is supported by SCOTUS determination and implicitly accepted by LH when passed 1988 FHAA. No real need to change it now unless test is so difficult to pass that it hinders integration [but Otero and So.Sub passed similar test]. If replaced, discrim in entity itself and floors not ceilings MUST still remain if integration is to be valid benign activity, so at least some Title VII analogies must be made. If purpose is to completely ban integration maintenance, runs counter to LH re. Mondale["one of the biggest problems we face is the lack of experience in actually living next to Negroes] and dual purposes of FHA.

4. Are we just getting rid of Title VII rule "severe or pervasive"? If so, will probably result in floodgates. Although current standard is unfavorable to Ps, protects Ls from having every interaction become a COA. Ts are often grumpy when it comes to their Ls, and if the standard is lower it may result in several Ts bringing claims on actions less severe than what we want to be a COA.

Substantive Recommendations:

- Pinchback rule should stay. Pros outweigh cons. If want to reduce breadth of what it covers, maybe enact rule that says "futile gesture...explain obviously [see below]...only applies when information that leads to abandonment of application process comes from RE agent." This will eliminate word of mouth issue and limit potential meritless claims, but still provide Ps with substantial protections.

- Starret rule should be changed. Integration maintenance is something that is desirable, and complies with one of goals of FHA. Suggestion is to make it so that in order to comply, you can mention race in program, but has to be floor for minorities [i.e. goal of 25% but over 25% allowed] and there has to have been some imbalance in the entity itself before program is allowed [which is why So.Sub. is desirable].

- Title VII hostile environment rule should not be eliminated but legislature should make an attempt to clarify that 1 instance of touching could be enough and that frequency is relevant to duration of lease [i.e. 2 events in 4 month lease is ceratinly enough given that it would equate to 6 over a year see Shellhammer].

-Title VII shouldn't be mentioned, and neither should case names. Could cause lots of confusion in lower courts.

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QUESTION III: PROFESSOR’S COMMENTS MIRA MIRO ON THE WALL,WHO’S THE FARRAH STOVAMOL?

Overall: I graded this question as though it were three separate short answer questions, counting checkmarks separately and providing a separate grade for each subquestion (which you can see on your scoresheets). I provided separate model answers for each subquestion as well as one complete model (at the very end below) that got the highest overall score without being one of the best two on any one part. Many students did nice work on at least one subquestion and the models are very good. Major recurring concerns included:

Failure to find serious arguments for both sides on one or more of the three subquestions.

Sloppiness on the more technical aspects of working with the statutes, particularly §3602(h) and §3617.

Poor time management: Question A was worth half as much as Questions B and C, but quite a few students apparently spent the most time on it.

QUESTION III: BEST STUDENT ANSWERS

3A: Student Answer #1: PP is a person with a handicap under 3602(h). While he arguably falls under 3602(h)(1) because his short limbs do "substantially limit one or more of such person's major life activities" he also has a case under (h)(3) for being regarded as having such impairment. PP is functional, but has shorter limbs, which means he has a hard time readching things. This is noth something that he can fix medically, so it will always be the case (3602(h)(2) thus does not apply here - unless he was one of the people who was successfully treated).

(h)(1): PP would argue that he is substantially impaired because he is much shorter than the average adult his age and he cannot reach things as easily. The fact that he has to bring his stool everywhere and uses it just to be on the same level as people shows that he is impaired. As a result of his short limbs he will clearly have trouble reaching knobs, switches, cabinets, counter tops and other things that an adult of average height would reach. Anything that a parent would help a young child reach, PP would need help reaching because of his short limbs.

FS would argue that PP does not qualify as this because with his stool he is not substantially impaired from everyday functions. He is able to travel around to lots of different places for his show without problem. Thus, he is able to perform every day activities. Furthermore, he only uses the stool to see from the presepective of the average adult, so it is reasonable to assume that he does can perform all of the other daily functions with or without the stool. He also does not need or make use of any other accommodation on his show or travels, he only relies on the stool.

(h)(3): PP also has a strong claim under the being regarded as having such an impairment section of this statute because of the highly visible nature of his condition. The point of this section is to protect people who are discriminated against because of the perception of them as handicap (see Franklin Building Corp. where elderly were handicap because of the perception of their inability). Since dwarfs are commonly stereotyped, PP would fit under this category and thus be handicap under the FHA.

FS would argue that the provisions of the FHA have to be applied to the person and context, specifically (Bangarter exceptions of when restrictions would be acceptable as applied to handicaps). PP is able to fully move around and travel on his show and people see this and are

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aware of it, they are not regarding him as handicap and thus he does not fit under this section of the statute.

3A: Student Answer #2: The relevant definition of handicap is "a physical or mental impairment which substantially limits one or more of such person's major life activities or is being regarded as having such an impairment"

Here, the argument can be made that P is a person with a handicap because (a) he has a physical impairment (dwarfism is a result from 200 medical conditions which all result in, at the very least, being a smaller size), (b)this impairment substantially limits P's major life activities.

P's condition substantially limits his major life activities by limiting ease of access to places which average height people find easy to access. In Baxter, the court addressed the issue of whether being HIV positive or having AIDs could fall under the FHA's definition of handicap. There, the court noted that Congress intended to include HIV-positive and people with AIDS because of the "public fear and missaprehension" associated with the disease. The fear the court was talking about has to do with an impaired ability to interact with others in public settings.

Here, although little people such as P may not be substantially impaired (they can adapt, "We just need a well-placed stool," "We can do anything an average-height person can do"), the public perception is certainly that little people are impaired. The very fact that the LPA needs to make those statements is evidence that the public perceived dwarves as handicapped, and that is all that really matters. Furthermore, the fact that only 30,000 out of 300,000,000 people in the US is further evidence of widespread misperception that dwarves suffer from an impairment which substantially limits a major life activity. The condition is highly visible, and dwarves are often ridiculed in childhood and discriminated against in adulthood, thus it is likely a purpose of the FHA to cover handicaps such as dwarfism.

On the other hand, the LPA could be making those statements in reference to ignorance by a minority of the public and that most of the public recognizes that dwarves are fully-capable human beings. Furthermore, there is nothing to suggest that the public regards a major life activity as substantially impaired -- dwarves can still live by themselves no problem and cook and clean and do every other major life activity a person of average height can do! All they need to do is step up on a stool sometimes. This is certainly very different from MS and cerebral palsy, the debilitating diseases which Congress had in mind.

In conclusion, if a court follows Baxter, it is likely that a court will find that P, as a little person, will fall under the FHA's definition of handicap because of the public misperception about dwarves and that they are not quite as capable as the average human being.

3B: Student Answer #1: Did FS violate 3617 by "interfering" b/c of PP's handicap?

Issue 1: Is 3617 claim ok without 3604 claim?

-Here, we have a case where PP was not actually denied housing (application approved, he just withdrew application before), so he would not have cause of action under 3604.

-Arguments in favor (independent cause of action)

To say no would make 3617 entirely duplicative of the other FHA provisions. The language of 3617 is unique. When the legislature uses certain language in one part of the statute and different language in another (i.e. 3617 and 3604), then the court should assume different meanings intended.

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Issue 2: What is Interference?

-Evidence in the record that could qualify as "interference"

1)B/c she was concerned that majority of board would approve PP's application, FS postponed board meeting scheduled to decide status of PP's app.

2) During interview, FS vocalized concerns about PP's dwarfism, also made comment about "happy, not grumpy"

-Under the "interfere" caselaw:

-McDermott: no compulsion here, so no claim

-Gourlay: while the conduct here (in addition to the discovery of HH's ad) was apparently so severe or prevasive that it had effect of causing PP to abandon the exercise of his housing rights, it is not clear that this could objectively be extended to a reasonable person within PP's class.

Any evidence relating to the interview is weak at best. If FS could "interfere" with PP's housing rights simply by making a couple of inappropriate comments in an interview, it seems like the potential for litigation is large (consider that FS's comments were at best ambiguous, and concerns about handicap do not necessarily show malintention, simply ignorance). However, the fact the FS postponed the board meeting schedule to decide PP's app status could make for a stronger case. The problem is, that decision did not seem to have any effect on PP's housing rights, as the board extended him an offer of housing. Additionally, such interference was unbeknownst to PP, and its only effect on him was the prolonged waiting time, which may have affected his decision to to withdraw his offer. The claim thus becomes a bit attenuated onto its actual interference with PP's housing rights.

Issue 3: Issue of intent: In order to prove 3617 claim, P must establish that 1) protected under FHA (resolved above in definition of handicap), 2) engaged in exercise/enjoyment of fair housing rights (resolved by record: applying for housing), 3) Def interfered on account of protected activity under FHA (analysis above), 4) motivated by intent to discriminate. (See Bloch).

Is there evidence here of an intent to discriminate on basis of PP's handicap?

-Ordinarily, P in discrimination suit must demonstrate both membership in protected class and act of discrimination towards him. However, the "regarded as" prong of disability collapses these two requirements into single inquiry: Did D intentionally discriminate against P b/c of misperception that P was disabled? If P can show that D acted out of this mistaken belief, then P will have demonstrated both membership in protected class and intent to discriminate.

-Here, it is possible for PP to pursue his claim either using "regarded as" or "physical or mental limitation that severly limits" so the intent analysis will still be addressed.

-Record indicates that PP met all financial requirements. So he was qualified for apartment. But FS also expressed concerns about PP's status as a celebrity as rationale for not wanting to accept his app. She questioned him extensively about whether his celebrity would cause problems. After interview, FS indicated that she was worried about press interfering with other residents, and that PP would be "the most famous person living here." Concerns about PP's celebrity status would constitute a legitimate reason to "interfere with his housing rights. Celebrity status is not protected under the FHA.

-However, FS also made several incriminating statements reflecting an intent to discriminate based on PP's handicap. "We want happy, not grumpy," while it could have been an innocuous statement, may also have been a pointed reference to the seven dwarves in Snow White. FS questioned PP about safety in using appliances and athletic facilities b/c of his size. After

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interview, FS stated that PP "doesn't exactly fit our marketing profile," a statement that is logically more directed to his handicap status than his fame. FS's interaction with PP had left him uncomfortable.

-At best, a determination of discriminatory intent here might require the extra step required in mixed motives cases like Jilek. Under Price Waterhouse: the relevant question would be whther FS would have made same decision to "interfere" with PP's housing if he had simply been a celebrity, and not handicapped." Under the amended Civil Rights Act of 1991, that analysis would simply affect PP's entitlement to damages for his claim.

3B: Student Answer #2: P will argue that F's actions rise to the level of interference with his right to housing [3604(a)] because she did not want a person with dwarfism in the building as it is contrary to the building's image and since P is famous, the building will be viewed in light of his celebrity [i.e. because they have accepted a famous dwarf, all other dwarfs are welcome]. F will counter by stating that her actions were driven by need to prevent burdens to other tenants due to press because of Ps celebrity, and that regardless her actions don't rise to level of "interference" anyways.

Court will have to choose how to interpret "interfere." Gourlay [severe/pervasive] and McDermott [type of force or compulsion] arguably too drastic to comply with legislative intent [re. Trafficante]. However, a broad definition could turn 3617 into vehicle for neighborly disputes. Borrow from Babin court and use definition of "directly effect the exercise of housing rights" because eliminates actions for economic interference from neighbors but provides Ps with substantial opportunity for redress, fitting with legislative mandate.

Important issue is whether P gave up housing right. Although F is president of board, and therefore in position to directly affect decision, board decided to accept P, indicating that P suffered no harm. However, we do not know if P still wants to live there, as he sent the letter w/drawing his app before learning of boards vote. Assuming that at the time the letter was sent, P had decided to give up, F could be liable under 3617 if she effectively interfered with board decision which resulted in P giving up because he thought he wouldn't be accepted. Evidence that F influenced board is (1) she was president, (2) board only 5 people, (3) she makes decisions about scheduling and delayed the meeting.

Even if its clear that F had influence over the board, F would argue that she delayed meeting because of celebrity not dwarfism. P would point to

(1) advertisments, (2) statements "he doesn't exactly fit our marketing profile" (3) questions re. safety/use of appliances during interview (4) "now, now" treating him like a child during interview and (5) "we want happy, not grumpy"

as evidence that his dwarfism was at least on F's mind and was a motivating factor when she made decisions. F will argue that she was joking around with some comments [saw show, and expected him to be carefree]and other concerns were benign. F will say advertisements don't reflect her intent, but intent of whole board. F will further argue she made decision to delay, which resulted in abandonment, because of celebrity. She'll point to:

(1) primary issue during interview was because of celebrity; (2) P was angry when questioned about celebrity, not handicap; (3) MM's reaction alerted F to the fact that P was very famous (4) After meeting F indicated she was worried about the press.

Court likely would find that statement "doesn't exactly fit our marketing profile" and delay of meeting indicate intent to interfere "because of handicap" but unlikely to be enough to have P prevail. Furthermore, unsure if Mixed Motive applies, but F could argue that even if handicap

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was factor, she wouldn't have allowed P anyways because of celebrity. If mixed motive applies court woudl have to determine whether PW or CR 1991 rules apply - likely 91' which means that even if F wins, P can get attorney's fees.

3C: Student Answer #1: 3604(c): literal language- to make, print or publish or cause to be made, printed or published

We are not told whether the "ads" are printed or published anywhere or where the ad that is discussed comes from. If the ad is in a magazine,newspaper or posted around town on bulletin boards than it passes the literally definition of being made, printed or published.

in order to determien if the ad indicates any perference limition or discirmination based on handicap or an intention to make a preference, under RAGIN the court uses the ordinary reader test. The ordinary reader is neither the most suspicious nor the most insensitive, similar to the "reasonable man" standard from tort law. P would argue that an ordinary reader would construe that the advertisement shows a preference towards healthy, fit and active people unlike himself. The pictures use "very fit men and women" and they are all pictured using atheltic facilities. The text of the ad references "perfect body", "staying fit in the city", "world class training facility", "weights", "aerobic machines", "excercise classes", "pool", "tennis courts", "committed to perfect health and fitness". However, Healthy Highrises (HH) would use the ordinary reader test to show that people in todays day are not used to seeing handicap people in advertisements and tehrefore an ordinaryr eader would not take the advertisement to be indicating a preference to discrimination against handicap people. Nowhere does it say or imply that working out is required in order to be accepted, rather the ad is just showing all the amenitites that the complex has to offer thier residents. It would be helpful to know the exact layout of the advertisiment, how many pictures it contained, how many ads were printed/published around town. Was this the only advertismeent published or was it published every week for a year? If there were sevearl pictures it is a stronger case for P, but if there is only one picture it is a stronger case for F becasue there is less "room" to fit in every singel protected class. Furthermore, the ad explicitly says "equal hosuing opporunity" stating that they do not discirminate in their preferences for residents.

PP will argue that the court should use the ordinary reader in the the protected class test. All ads are geared toward a certain group of people, here the non-handicap, and therefore when the ad companies see if thier campaigns are working they look to repsonses from these group members. Therefore, only the handicap would be able to know if the ad is showing a preference for discirminating against people like them. If a handicap person were to view the ad they would point out that all the activities dicsussed and shown in the picture (i assume) require some level of athleticism. However, HH will say that the use of the ordinary reader test using the protected class is not the best test to use because people of the protected class are probably too sensitive to be impartial and will always feel that they are being discirminated against if they do not see someone in the ad exaclty like them. Additionally, an ordinary reader who is not a memer of the protected class, may be more inclined to listen to all the facts in teh case before them regarding the advertisement.

Although, PP is not restricted to a wheelchair or the use of a cane or anything he probably has less stamina for a "group excercise class" or swimming laps in an "olympic sized pool" than "regular sized" people would. HH will point out that this is a generalization about dwarfs because there are many "regular sized people" who cannot (due to being unhealthy, overweight etc) do these same "stamina required" excercises. Also, there are many "regular sized" people who have the ability to do these activities and choose not to. Therefore, the advertisements do not show a preference to discriminate against handicap people they are only showing a preference towards people who are fit, able, and healthy (which is not a protected category). It is not forbidden to

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favor single people or young people or professionals, so it likewise seems odd that it would not be ok to favor healthy and fit "lifestyle" residents.

HH can argue that the people in the ads are not in fact models, but they are residents in teh community and at this time there is not a visibly handicap individual in the community, or if there is a visibly handicap individual in the community he or she was unable to participate in the photoshoot. HH will also argue that there are people in the ad who have mental impairments (that are protected by handicap classifications) so the add cannot be showing a discriminatory preference against handicap people. HH will also say that an ordinary (handicap reader) might not see that the place excludes handicaps but maybe that it is not a place that they feel promote their idea of a perfect community.

It would be useful if we knew more about the photos in the ad concerning if there are headshots of people or if each person had a fully body shot. If there are headshots that HH as a stronger case that this image implies that the person could be handicap and therefore is not discriminating agaisnt these people.

Overall, seems like a HH would win the case in advertising and that the ad does not show a preference to discriminate against handicap people. (with whatever test is applied).

3C: Student Answer #2: 3604(c) Claim:

Pro: Here it seems that the text in the ad indicates a strong preference of able-bodied persons. The heading Perfect Body, Perfect Living indicates that there is such thing as a "perf." body and that to live in this complex, this may be a requirement. The ad then lists a multitude of active activites that tenants could engage in like exercise classes, and tennis in which only an able-bodied person would be able to participate. This suggests that an active lifestyle is preferred and maybe even a requirement of living at HH. When the ad further states "only people...all committed" inscinuates that every single person at HH is committed to this "perfect body" where clearly P's is not.

The models used in the ad also do not display those with handicaps. It has been uncontested that the use of models can indicate a preference of race/national origin (Ragin), but the question of the use of models and handicapped people has not been settled. Here, the use of a;; able-bodied models could indicate a preference of able-bodied residents expecially when cupled with the text analyzed above. Although they were of all ages and races, none had disabilities. It has been seen that the use of models inadvertising is an attempt to create an identification between the model. the consumer, and the product (Saunders). Adertisers specifically choose models whom the targeted consuers will identify with. Here, P has absolutely no model to identify with. Models as a medium for handicapped prefence also have the same effect on the reader as models with race or national origin which can be seen by P's reactiona nd subsequent withdrawal of application.

Application of the OR test: This would depend on whether the OR was int eh protected class or not in the protect class - courts are split on which OR.

- OR here in the protected class may be able to realize that the text coupled with the photos show that a disabled person would not be the ideal tenant of this complex.Here applying OR in protected class, they would have a similar reaction as P did realizing that they are not the :target acudience" and like P feel unwanted.

CON: This ad could not indicate preference because HH is an athletic community, and clearly states this. This is their purpose and gial as a complex to promote human health - which can be seen by the facilities and advertisement. The models do not indicate a preference, but are just merely showing off the facilities that HHw ants to highlight because they are a leading atheltic

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facility in Manhattan. The models were all able-bodied to display to plethera of ammenities that HH wanted to advertise. This is the point of advertising, to show why one complex is better than another and here HH is emrely highlighting the activities and accommodations that set them apart from the competition. Also the text clearly states EHO which allows the disabled person who may feel excluded form the ad to call and ask about commodations.

The text although emphasizing itness, also includes activities that a diabled person can engage in like swimming. Although it is more difficult for a disbaled person to swim, therapeutic swimming is a common actiivty for many who are disabled. Also just because one is disabled does not mean that they do not go to the gym and would not use the "world-class" training facility, it is often that a person ina wheelchair works out at the gym to pain upper arm strength.

OR test outside of the protected Class:

- likely not to recognize preference.

- disabled not as prevelant as race in noticability

- EHO would be enough showing for them most likely.

Therefore a person who was not in the protected class who was an OR would not be likely to notice that this ad was prefering able-bodied persons.

This is a very close case, but I think that P could most likely succeed if the court adopts that models can be a meedium for displaying preference for handicapped people.

Q3: Overall Best Student Answer:

1. HC w/i 3602 h? 3602 states that handicap means "a physical or mental impairment which substantially limits 1 or more major life activities; a record of having an impairment; or being regarded as having an impairment" These can be broken into 2 different types of claims:

Substantially limits P would likely be disabled w/i this meaning b/c of the effects of his disorder- he has stature & bone growth problems, may have to get surgery at some point in his life, & needs specialied furnutire. P has to bring a stool w/ him every where he goes, which would substantially impair life b/c it is a hinderance others don't have to deal w/. Further, his dwarfism is recognied as a medicial problem and he could get experts to testify as to his everyday issues. He likely cannot reach the same things as others and might have to go different places based on his height.

Regarded As Even if P did not make out that dwarfism is a type of disability that Congress was trying to protect, he veyr likely can show that he is regarded as having a disability. The info re: dwarfism states that it is a highly visible condition and often carries negative connotations, showing that the public views it as different. FS's comments in the meeting w/ P show that she regarded him as disabled, as she asked whether he would be able to reach things and use appliances, therefore doubting his capacity to do the things "normal" ppl can. Further FS told P "we want happy not grumpy" identifying him w/ a dwarves from Disney & highlighting his differences from average ppl. She supported this also by stating she was concerned w/ his ability to use the facilities despite his reassurances. This conveys that she was probably influenced somewhat by the stereotypes referred to in the appendix.

The only evidence against this is: 1. LL's, LPA's Pres, statements that dwarfs are "no different than any other person... can do everything an averaged-height person can" but this only really speaks to the objective aspects of the condition and not the subjective regarded as claim. 2. while MM's comment was nice in the sense that MM was a "fan" of P and could be construed as accepting, this seems to relate more to P's status as a TV star. As the info states, P's occupation

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itself shows that dwarves are suggested in popular media as imparied or disabled, b/c they are on TV for others to watch not to identify with but as spectacles.

2. 3617 Interference by FS by postponing the B meeting: The evidence against FS is: stating in the meeting she wants happy, not grumpy and then sayin it was just a little joke shows that she was allowing her subjective beliefs to influence her business conduct. Comments like these can be discriminatory & understandably offensive to someone who walks in trying to buy housing and talk business, yet is forced to listen to these sort of degrading jokes. Her concern for his ability to use appliance and facilities shows that she was aware of his disability (which is necessary for a claim).

After P left, she said he "wouldn't fit the marketing profile" and b/c the profile is related to fitness, this infers that P would not make good press for HH if word got out that a fitness complex's most well-known celebrity resident was a dwarf. The necessary assumption for her to link the fact he's a dwarf, his not fitting in, and celebrity, is her assumption that others would also care and look negatively on the complex for that reason, thereby showing the issues w/ stereotypes against P in society and that FS either believes them or is concerned enough w/ others' opinion that she thinks it would hinder HH's business. Either way, it is using P's protected characteristic as a reason or factor in her decision making, which is prohibited.

Even if these comments show FS's discriminatory animus, would the decision to postpone a meeting be a claim under 3617? It would have to be an interference claim, if any claim, b/c there is no evidence FS coerces, intimidated or threatened P. Whether or not FS violated this depends on if the court determines interfere is a catch-all or if it must have an element of durress (persuaded by ejusdem generis, to be in the same genus as the specific preceeding verbs in the list). If it decides on the latter, P likely does not have enough evidence. FS did not act w/ force or compulsion to hinder P's FHA rights; she just delayed a meeting. Further, b/c P voluntarily withdrew his application before FS rejected him, the court would be likely to find that FS did not adequately interfere w/ P's rights & P probably doesn't have a claim under 3603-06 (unless the ad claim is valid), which makes 3617's evidentiary burden usually higher (see Frasier, Stirgus).

The strongest argument in favor of P's 3617 claim is equating FS's interference w/ the sort of economic interference that is sometimes barred. If the court decided to take the approach from Hughes, interference could mean that it encompasses all itnerference that has a purpose to deny access to housing. B/c FS said that she was postponing the meeting b/c she thought the B would approve P, her motive was clearly to deny him access to housing. & Although P ultimately was accepted, her action DID accomplish something- it violated B's normal procedures (B would have heard P's app otherwise and probably approved him, as it did later) and it made P frustrated enough to withdraw his app. The rationale of the futile gesture doctrine would suport P's withdrawal as a denial of rights b/c P told him he would hear from the B and then purposefully did not accord to this procedure so perhaps P had a rational basis for assuming there was no point in waiting b/c FS's comments and HH's ads showed he was not wanted there.

Evidence in favor of FS: FS seemed more worried about P's celebrity status than his disability. She stated when the interview began that she was worried about whether P's celebrity would cause problems. She insiuated that b/c P is a star he would throw loud parties and disrupt people. After P left, she said she was worried about te press interfereing w/ other residents. These concerns are all persmissible under the FHA b/c FS is allowed to discriminate based on celebrity, as it is not a protected class. Further, there is no issue w/ celebrities getting housing so there is not a FHA purpose argument here. If FS can show that this was the real reason for her decision to forego the B meeting for an extra 2 weeks, then FS should not be liable to P.

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3. 3604 c Advertising claim: First issue here is whether handicapped ppl should have an ad claim under the FHA at all pertaining to use of models, or if tey should be held to the same standard as race claims. The arguments for this include: that Congress included handicapped ppl on the same list of protected characteristics as race or sex in 3604, thereby showing it intended to give them the same protection equally. Further, they can suffer the same feelings of being unwanted or dispreferred by the housing complexes as the other classes. HC is a unique characteristic that should be protected b/c none of us know whether we will one day be handicap, so it is important to safeguard those rights as they will likely affect everyone, either individually or by the effect on our families. Also, allowing HCs to bring the same type of evidentiary claims is not a problem for advertisers b/c they have resources and plan their ads.

The negatives of allowing this are that advertisers may think of including them b/c race is a more thought of characteristic on a regular basis, where as people may go long periods of time without seeing a HC person. Also, there are stats of how many races are in a community so an advertiser should know that it would be discriminatory to not include, eg blacks in an area where the population is 75% black. There are (likely) no similar stats for HC people, so it would place an undue burden on advertisers. Also there are many different types of disabilities from blindness to immobility so it would be very difficult and likely expensive for advertisers to include every possible type to insulate them from liability.

Here, there were pictures of people of several races (showing it doesn't intend to discriminate based on race, might signify that it is truly an EHO and not just including the slogan for good image), men and women (also, not sexist), using the facilities (the place is CALLED Healthy Hightrises- it is logical to emphasise facilities for a place build for ppl who want fitness). The text of the ad states "perfect body, perfect living" which may have the connotations to P that ppl that do not have perfect bodies- stereotypically a regular height person build proportionally (which P is not)- are not welcomed there. It says "ALL committed to health and fitness" therefore emphasiing the continuity in the same type of people that live there, that there is a sort of model resident.

Whether or not P's OWN perceptions count will hinge on whether the court decides to use an OR test or an OR test from the particular class. If it uses the particular class, P's case is more likely to succeed simply b/c "normal" people probably would not look at an ad for a fitness themed building and wonder why there are no HC ppl in the pictures or why the text doesn't mention them. If a HC person saw it on the other hand, they may feel, as P did here, that they were excluded and not welcomed. The effect on P can be seen b/c he withdrew his app to the complex after he saw the ad.

The HH has a good reason to include all of the information it does in its ad b/c it is a niche community and markets to ppl that wanty an active lifestyle and facilities, which is very persuasive given this is in NY & its likely a lot of ppl would want this type of community since its a city w/ limited access to rec facilities. Its emphasis on this and not its condos is shown in its ref to the condos as something "coming w/ the facilities" as normally it would be the other way around; people usually buy condos FOR the condos and not access to fitness facilities and- on the side- also get a condo. Finally, HH's ads are not overlty discriminatory; they at least include an EHO ad.

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