Can the selection of a roommate give rise to a legal claim for discrimination? The Ninth Circuit recently weighed in.

In Fair Housing Council of San Fernando Valley v., 666 F.3d 1216 (9th Cir. 2012), a website that matches roommates based on sex, sexual orientation, and family status, was sued for violation of the anti-discrimination provisions under the federal Fair Housing Act (FHA) and the California Fair Employment & Housing Act (FEHA).  The question addressed in the case was whether the provisions of the FHA and the FEHA limit our right to chose with whom we will live, and if so, whether government interference with our choice violates our constitutional right to privacy.

Common sense would seem to dictate that people have a right to chose who they want to live without being considered discriminatory.  However, in the case, a federal District Court first ruled that the website’s questions requiring disclosure of sex, sexual orientation and family status, and its sorting, and matching of users based upon those characteristics, violated the FHA and the FEHA.  The District Court granted summary judgment for the plaintiff and awarded almost $500,000.00 in attorney’s fees.

The Ninth Circuit Court of Appeals reversed the decision of the District Court, noting that the federal FHA prohibits discrimination on the basis of race, color, religion, sex, familial status, or national origin in the sale or rental of a dwelling.  In addition, California’s FEHA contains substantially similar language and further prohibits discrimination based on sexual orientation and gender identity. Despite this language, the Ninth Circuit was skeptical about whether either Congress or the California legislature intended to govern the selection of roommates.  As noted by the Court in its opinion, if individuals could not discriminate in the selection of roommates based upon gender, then a female could be forced to select a male roommate or be subject to a claim of discrimination. The opinion went on to observe: “Telling women they may not lawfully exclude men from the list of acceptable roommates would be controversial today; it would have been scandalous in the 1960s.”

Ultimately, the Court in the case held that applying the nondiscrimination requirement to roommate selection would constitute a serious invasion of privacy and therefore the anti-discrimination provisions of the FHA and the FEHA do not apply to roommate selection.  Accordingly, roommates remain free to choose their roommates in a manner that might be considered discrimination if the entire housing unit was to be sold or rented.

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About Michael G. Kerbs

Michael Kerbs joined Reid & Hellyer in 1987 and has spent the entirety of his 22-year legal career with the firm. A 15-year partner, he was nominated as president of the firm in 2009. Michael practices business and real estate litigation as well as writs and appeals. He is a graduate of the University of San Diego, obtaining his B.A. in 1984 and his J.D. in 1987, graduating magna cum laude after serving as an editor of the San Diego Law Review. He can be reached at and via phone at (951) 682-1771.



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