Overview of Religious Discrimination under the Fair Housing Act
The Federal Fair Housing Act (“FHA”), 42 U.S.C. §3601, et. seq. prohibits a condominium association or homeowners’ association from discriminating against a potential purchaser or an owner based upon religious beliefs. 42 U.S.C. §3604 provides in pertinent part:
As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful— (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin. (b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin. (c) 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.
Most claims will involve an allegation that the condominium or homeowners’ association has enacted or attempted to enforce a restriction or rule that allegedly abridges the religious freedom of an owner and makes housing “unavailable” to that person.
A violation of the Federal Fair Housing Act based on religious grounds can be established in two separate ways. First, a claim can be established based on intentional discriminatory action that resulted in disparate treatment. To establish a claim, a plaintiff must demonstrate that:
….an “invidious discriminatory purpose was a motivating factor” behind the HOA’s actions. “A plaintiff does not have to prove that the discriminatory purpose was the sole purpose of the challenged action, but only that it was a ‘motivating factor.’”
See e.g. Morris v. West Hayden Estates First Addition Homeowners Association, Inc., No. 2:17-CV-00018-BLW, 2017 W.L. 3666286, at *3 (U.S.D.C., D Idaho, August 24, 2017), citing Ave 6E Investments, LLC v. City of Yuma, Ariz., 818 F.3d 493, 504 (9th Cir.), cert. denied, __U.S.__, 137 S.Ct. 295, 196 L.Ed.2d 214 (2016) (citations omitted) and Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015) (citations omitted). Second, a claim can be established if an action of the community association, while not intended to be discriminatory, had a disparate impact on owners that held certain religious beliefs. Texas Dept. of Hous. & Cmty. Affairs (TDHCA) v. Inclusive Communities Project, Inc., __U.S.__, 135 S.Ct. 2507, 2525, 192 L.Ed.2d 514 (2015) (“The Court holds that disparate-impact claims are cognizable under the Fair Housing Act upon considering its results-oriented language, the Court’s interpretation of similar language in Title VII and the ADEA, Congress’ ratification of disparate-impact claims in 1988 against the backdrop of the unanimous view of nine Courts of Appeals, and the statutory purpose.”). Generally speaking, a disparate impact claim can be established by demonstrating that the decision of the community association had a segregative effect or that it made housing options significantly more restrictive for members of a protected group than for persons outside that group. Hallmark Developers, Inc. v. Fulton Co., Ga, 466 F.3d 1276, 1286 (11th Cir. 2006).
No matter what theory of religious discrimination is alleged, the plaintiff bears the burden of establishing that the association has discriminated against him or her. Savanna Club Worship Serv., Inc. v. Savanna Club Homeowners’ Association, Inc., 456 F.Supp.2d 1223, 1231-32 (S.D. Fla. 2005). Once this is established, “the burden then shifts to the defendant to establish a legitimate non-discriminatory business reason for taking the action. If the defendant comes forth with such reason, then the burden returns to the plaintiff to establish that the defendant’s reason is merely a pretext.” Id.
Religious Services in Units
One of the most common issues that condominium and homeowners’ associations are forced to deal with is when a co-owner conducts religious services in their unit. The Texas Court of Appeals upheld an injunction against an owner who performed religious services in a unit in violation of the restrictive covenants. In Tien Tao Ass’n, Inc v Kingsbridge Park Cmty Ass’n, Inc, 953 SW2d 525, 532 (Tex App, 1997), the court held as follows:
The Federal Fair Housing Act (FHA)….makes it unlawful to deny, or “otherwise make unavailable,” a dwelling to any person because of religion. Enforcement of discriminatory zoning and deed restrictions may make housing otherwise unavailable….The record makes it clear Kingsbridge sought to enforce its deed restrictions not to abridge Tien Tao’s right to religious freedom, or to exclude Taoist believers from the community, but to abate a nuisance. The repercussions of Tien Tao’s activities were indistinguishable from those that could ensue from any nonresidential use. The record contains evidence of a high volume of visitors, traffic congestion, noise, and eyesores on the property. These created a nuisance. That the nuisance stemmed from a gathering of a religious nature does not exclude it from coverage by the restrictions. In urban areas without zoning, homeowners have increasingly come to rely upon use restrictions to maintain the residential nature of their neighborhoods. Although such restrictions may have an impact on the manner in which homeowners observe their religions, this does not automatically equate to religious discrimination. We hold the judgment was not against public policy.
Accordingly, courts have generally recognized that religious services within a unit must be conducted in a manner that does not violate the restrictive covenants. However, the above case may have had a different result if there was not high traffic, noise, etc. and the community association simply attempted to ban religious services for an improper reason. Therefore, each case needs to be evaluated on its specific facts.
Religious Services in Common Areas
Condominium and homeowners’ associations are frequently called upon to make decisions about whether religious services will be allowed in common areas. While a co-owner could establish a claim for religious discrimination if the community association allowed certain types of religious services, but not others, it is unlikely that a claim could be established when all religious services are banned. A Florida federal court was faced with this issue and held that a community association could ban all religious services. Specifically, the Court held:
None of the Club’s homeowners have been denied access to Savanna’s common areas. Rather, they have been denied permission to use the common areas to conduct their religious services. Just as clear is the fact that no other homeowner is permitted to conduct their religious services within Savanna’s common areas. Applying the reasoning of the majority of Courts that have considered post-acquisition discrimination, their interpretation of the FHA’s policy as being intended to provide access to housing, and further applying the relevant HUD Regulation and the few cases finding access to planned community facilities an incident of ownership, the Court finds that the FHA only applies to those deprivations in the provision of services which cause a complete denial of access to such services. The Application of a Rule barring all religious services from a community’s common areas without impeding a homeowner’s right to practice his or her religion, and without denying access to the common areas for all other purposes is not sufficient to established that the club is being treated differently from persons of other religions. The fact that it is more desirable or easier for Club members to practice their religion in Savanna’s common areas, does not make their current or future homes unavailable as contemplated by the FHA.
Savanna Club Worship Serv, Inc v Savanna Club Homeowners’ Ass’n, Inc, 456 F Supp 2d 1223, 1232 (SD Fla, 2005).
Condominium and homeowners’ associations also encounter situations involving the display of religious symbols. Community associations are free to adopt facially neutral covenants and enforce the same, which may have the impact of banning certain religious displays. A federal court in Maryland dismissed a religious discrimination claim when a condominium association’s restrictions prevented a co-owner from displaying a Jhandee in a certain area of his balcony in violation of the condominium bylaws. Boodram v Maryland Farms Condo, No. CIV. JFM-92-549, 1992 WL 813667, at *1 (D Md, October 2, 1992). The court held that Jhandee could be displayed in compliance with the condominium bylaws, and that there was no evidence that the condominium association made any derogatory remarks about the Hindu religion or that it intended to discriminate against Hindu beliefs. Id. However, the 7th Circuit Court of Appeals reached a different result in Bloch v. Frischholz, 533 F.3d 562 (7th Cir. 2008), aff’d. in part, rev’d. in part, 587 F.3d 771 (7th Cir. 2009, en banc). In that case, the condominium association selectively enforced facially neutral rules to remove a mezuzah in the hallway, but failed to enforce the rules related to other non-religious objects in the hallway. Id. The court held that an issue of fact existed as to whether the condominium association’s actions were motivated by religious animus. Id. Accordingly, consistent enforcement of restrictive covenants is important to avoid potential religious discrimination claims.
Condominium and homeowners’ association may also face religious discrimination claims related to restrictions on holiday lights. An Arkansas Court that dealt with this issue refused to strike down restrictions related to holiday lighting based on religious grounds. Specifically, the Court held:
…we view this case as one involving a public and private nuisance, not religious beliefs, and the RFRA is simply not controlling….In sum, massive commercial lighting displays generated by commercial transformers are not appropriate in quiet residential neighborhoods and violate express provisions of bills of assurances.
Osborne v Power, 319 Ark 52, 53; 890 SW2d 574, 575 (1994). Accordingly, like the above cases, the community association was able to prevail as it was enforcing facially neutral restrictive covenants and there was no evidence of discriminatory intent in enforcing the covenants.
The Federal Fair Housing Act is complex and community associations that are faced with religious issues should consult with an attorney as each case is highly fact specific. However, common sense dictates that members of the board of directors cannot target a co-owner for religious reasons. Accordingly, consistent enforcement of facially neutral condominium bylaws and rules is of the utmost importance in avoiding a claim for religious discrimination. Similarly, even when enforcing facially neutral condominium bylaws and rules, a board should consult with an attorney to determine if such enforcement may have an impermissible discriminatory impact.
Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners’ associations and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners’ associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or email@example.com.