Investigators Report: H08-0500

Untitled Document

[Complainant], individually and o/b/o minor children

[Respondent]

I. Complainant’s Charge:

[Complainant] alleges that [Respondent] and [Respondent] discriminated against her son SB on the basis of his disability, and against her and her daughter SS because of their association with her son by subjecting them to different terms and conditions of the application process to rent an apartment.

II. Respondent’s Answer:

The [Respondent] deny discrimination and allege that they subjected [Complainant], to the same terms and conditions of the application process as every other prospective tenant by asking to meet all parties who would be living in the apartment before renting.

III. Jurisdictional Data:

Dates of alleged discrimination: August 7, 2008.

Date complaint filed with the Maine Human Rights Commission: August 21, 2008.

The [Respondent] own and manage 8 rental units and are subject to the Maine Human Rights Act, the federal Fair Housing Act, as well as state and federal housing regulations.

Neither party is represented.

Investigative methods used: A thorough review of the written materials submitted by the parties, requests for follow-up information and documents, Issues and Resolution Conference over the phone, phone statements from other tenants.

IV. Development of Facts:

The parties and issues in this case are as follows:

SB is mentally disabled. He has mental retardation, autism and attention deficit disorder. Although Respondent never met SB both parties acknowledge that Ms. [Complainant] mentioned that her son was disabled when she applied for the apartment.

[Complainant] went with her daughter to view an apartment at [Property Location] in Old Town on August 7, 2008. During the viewing she mentioned that her son was a “special-needs child.”

[Respondent] was the only Respondent present during the apartment viewing.

BF is a current tenant in apartment A which [Complainant] looked at. BF moved in on or around September 18, 2008 after the alleged incident.

LK is a tenant in apartment A at a different building owned by the [Respondent] at [Property 2 Location]. She moved in on or around August 1, 2006.

[Complainant] alleges that [Respondent] seemed ready to rent her the apartment until she told him about her disabled son to which he responded that he would not consider renting her the apartment until he met her son since he wanted to “see how he behaves” as he did not “want to lose tenants.” [Respondent] denies making these statements but acknowledges that he asked to meet her son since it is his practice to meet every person who will be living in an apartment before renting it. [Complainant] alleges this is pretextual, and that the real reason he asked to meet her son is because she told him he was disabled.

[Complainant] provided the following:

On August 7, 2008 she went to view apartment A at [Location] with her 11-year-old daughter SS. They discussed her renting the apartment and he seemed ready to rent it to her. She then stated that she had a “special needs” son and he responded that he would “not even consider renting the apartment” until he met her son to “see how he behaves” because he did not want to “lose tenants.” She told him that this was discrimination and that she was very protective of her son. He ignored this and said that he was going on vacation and that they could talk about the lease when he got back or she could call his wife.

[Respondent] provided the following:

He did not state that he wanted to see how her son behaves or that he did not want to lose tenants. She mentioned she had a son and that he was special needs, and he told [Complainant] that he has to meet everyone who will be living in the apartment, and that this is a policy which applies to all prospective tenants. He started this practice about 2 years ago when he was having problems with tenants who would list their names on the lease and then others would live with them in the apartment. He does not discriminate on the basis of disability. He does not have a record of it, but he did rent to a family with a “special-needs” child 5 or 6 years ago.

Further investigation revealed the following:

Tenants from all 8 of the [Respondent]’s apartments were contacted via telephone and asked about their application processes. Relevant persons to the investigation were LK and BF. There statements are below.

(LK) She and her husband went to see the apartment for the first time by themselves. [Respondent] knew that they had a daughter but did not ask to meet her before renting the apartment. They visited the apartment a second time to sign the lease and turn in the security deposit, and decided to bring their daughter with them. This was not, however, at the request of [Respondent].

(BF) She and her husband moved in recently with their three daughters. She viewed the apartment for the first time with just her husband. They told [Respondent] that they had 3 children and he asked them how old they were and they “talked about them a bit.” [Respondent] did not ask to meet them before entering into an agreement to rent the apartment.

([Respondent]) LK moved in before he started the procedure of asking to meet all persons who would be living in the apartment. BF and her husband came 3 or 4 different times to look at the apartment. They brought the older daughter once and then the other two when they paid the deposit. (Note: he later stated that all 3 girls were in the car the first time they came to the apartment). BF’s husband came without BF a couple of times.

(BF) (Note: BF was contacted a second time after [Respondent] made the above statement when confronted about BF’s prior statement.) She and her husband had looked at the apartment twice together. Her husband did not go on his own without her. They went once before the security deposit and then once when they gave the deposit and signed the lease. She stated that she may have had 1 or 2 of her daughters with her when they went to sign the lease, but he did not meet all three before they signed the lease or gave the deposit and he did not ask to meet all of them as a condition for renting the apartment.

V. Analysis:

The Maine Human Rights Act requires the Commission to “determine whether there are reasonable grounds to believe that unlawful discrimination has occurred.” 5 M.R.S.A. § 4612(1)(B). The Commission interprets this standard to mean that there is at least an even chance of Complainant prevailing in a civil action.

The Maine Human Rights Act makes it unlawful for any owner to discriminate against any individual because of disability in the “price, terms, conditions or privileges of the sale, rental or lease of any housing accommodations.” 5 M.R.S.A. § 4582.

It is unlawful to discriminate against a tenant or prospective tenant because of the physical or mental disability of “[a]ny person associated with that person.” Me. Hum. Rights Comm’n Reg. § 8.06(A)(2)(c).

Prohibited actions include:

Using different qualification criteria or applications, or sale or rental standards or procedures, such as income standards, application requirements, application fees, credit analysis or sale or rental approval procedures or other requirements, because of . . . physical or mental disability. Me. Hum. Rights Comm’n Reg. § 8.04(B)(2)(d).

The Commission’s regulations also prohibit inquiries as to the nature or severity of a disability if such inquiries are not made of all applicants. Me. Hum. Rights Comm’n Reg. § 8.06(A)(3)(a).

Because this case does not involve direct evidence, Complainant establishes a prima-facie case of unlawful housing discrimination with respect to the price, terms, conditions, or privileges of the sale, rental, or lease of a housing accommodation by showing (1) Complainant is a member of a protected class, (2) that Complainant was not offered the same terms, conditions or privileges of rental of a dwelling or not provided the same services or facilities in connection therewith made available to others, and (3) under circumstances giving rise to a reasonable inference of prohibited discrimination. See Khalil v. Farash Corp., 260 F. Supp. 2d 582, 588 (W.D.N.Y. 2003).

Once Complainant has established a prima-facie case, the burden of production, but not of persuasion, shifts to Respondent to articulate a legitimate, nondiscriminatory reason its action. See United States v. Grishman, 818 F. Supp. 21, 23 (D.Me. 1993); HUD v. Blackwell, 908 F.2d 864, 870 (11 th Cir. 1990); Doyle v. Dep’t of Human Servs, 2003 ME 61, ¶ 15, 824 A.2d 48, 54. After Respondent has articulated a nondiscriminatory reason, the burden shifts back to Complainant to demonstrate that the nondiscriminatory reason is pretextual or irrelevant and that unlawful discrimination brought about the adverse housing action. See Id. The Complainant at all times retains the ultimate burden of persuasion on the question of whether unlawful discrimination has occurred. See Id.

In order to prevail, Complainant must show that she would not have suffered the adverse action but for membership in the protected class, although protected-class status need not be the only reason for the decision. See Maine Human Rights Comm’n v. City of Auburn , 408 A.2d 1253, 1268 ( Me. 1979).

In this case [Complainant] , (individually and acting on behalf of her children), establishes a prima-facie case for discrimination by showing that (1), her son is mentally disabled and was regarded as disabled by the Respondent (2), that she and her children were subjected to different terms and conditions of the rental application process, and (3), this gave rise to a reasonable inference of prohibited discrimination. [Respondent] admittedly told [Complainant] that he would have to meet her son before renting to her. Although he claimed this was a standard practice he subjected all tenants to, investigation revealed otherwise (see LK and BF statements above). The fact that [Respondent] subjected [Complainant] to this practice after she mentioned having a disabled son, leads to an inference of prohibited discrimination on the basis of disability.

[Respondent] articulated a legitimate non-discriminatory reason for asking to meet Ms. [Complainant] son; that he asks all prospective tenants to make sure he meets all persons (including children) who are going to be living in an apartment.

Testimony from other tenants, however, disproved Mr. [Respondent]’s non-discriminatory reason. LK and BF both stated that [Respondent] did not ask to meet their children before agreeing to rent them the apartment. [Respondent] did state that he adopted this policy “about 2 years ago.” If he were credited with this statement then it is possible that LK, who moved in two years ago, was not subjected to this practice. However, BF moved in after the incident with [Complainant] (into the same apartment that [Complainant] looked at) and was not subjected to this practice. This evidence eliminates Mr. [Respondent] ’s nondiscriminatory reason and makes it plausible that [Respondent] did in fact ask to meet [Complainant]’s son because she told him that he was “special-needs” and he was concerned with his behavior, as [Complainant], alleges.

VI. Recommendation:

For the reasons stated above, it is recommended that the Maine Human Rights Commission issue the following finding:

There are Reasonable Grounds to believe that [Respondent] and [Respondent] discriminated against [Complainant], [children] on the basis of disability and association with a person with a disability by subjecting them to different terms and conditions of the rental application process.

Conciliation should be attempted in accordance with 5 M.R.S.A. § 4612(3).

_______________________________ _____________________________

Patricia E. Ryan, Executive Director Angela Tizón, Investigator

The complaint is dual-filed with the U.S. Department of Housing and Urban Development, HUD No. 01-08-0514-8.

LK and BF’s statements are being credited due to the fact that they are both independent witnesses, had no knowledge of the MHRC complaint, and had no reason to fabricate their testimony.

COMMISSION INFORMATION

Investigators Report: H08-0500