Daily Development for
Friday, May 31, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

FAIR HOUSING; DISPARATE TREATMENT: A discriminatory practice existing before passage of prohibitory civil rights legislation, coupled with a post-legislation pattern of conduct maintaining the status quo, can establish the intent to engage in prohibited discrimination through a facially neutral rental policy. Human Rights Commission v. LaBrie, Inc., 668 A.2d 659 (Vt. 1995).

Tenants of a mobile home park had been advised when first leasing space that trailer occupancy was limited to two persons. At the time, they had no children. The park operators had maintained a practice of prohibiting rental to families with children under the age of 18. Following adoption of amendments to the Vermont Fair Housing Practices Act, V.S.A. 9-4508, prohibiting against discrimination against rental to persons with minor children, the operators revised their leases to limit tenancy to two permanent occupants per premises.

When tenant wife became pregnant, the operators advised the tenants that they would have to vacate the premises before their child was born. They immediately placed their mobile home on the market, but could not find a purchaser at their price. After the child was born and they returned to the mobile home, they were repeatedly told they had to leave and, eventually, served with eviction papers. The tenants and their child vacated the property and moved in with the tenant wife's parents. Eventually they did sell the home and then brought this action for violation of the Fair House Practices Act.

The operators offered evidence at trial that the septic system and water supply for the park could not support more than two occupants per unit. The trial court did not find this evidence creditable and found that the park operators had violated the Act based upon evidence of disparate treatment and the disparate impact of their rental policy. It awarded the plaintiffs damages for deprivation of civil rights and for mental distress as well as attorneys' fees.

On appeal, the Supreme Court of Vermont found it unnecessary to discuss the disparate impact branch of the trial court's decision because it found that there was adequate evidence of disparate treatment, i.e., the park operators intentionally discriminated against the tenants because of their minor child. In interpreting the Vermont Act, the court looked to decisions under the Federal Fair Housing and Fair Employment Practices Acts to determine what amounted to evidence of discrimination. Prior to the prohibition against discrimination in renting to tenants with minor children in the federal and state statutes, the operators had a policy that did discriminate. Once the Vermont Act was amended to meet the 1988 amendments to the federal act, their policy was changed from adults-only to the maximum two occupant rule. While appearing neutral on its face, this policy maintained the status quo in that no minor children have moved in since the park operators acquired it. This was sufficient evidence to permit an inference that the occupancy limit was adopted for the purpose of preventing persons with minor children from leasing space within the park.

The Vermont statute, unlike the Federal Fair Housing Act, as amended, does permit landlords to engage in "legitimate business practices necessary to protect and manage the rental property, such as the use of references." The Vermont Supreme Court affirmed the trial court's determination that the operators' business necessity claim was not supported by adequate evidence to show that septic and water supply systems could not support more than two persons per unit.

The court also rejected the operators' argument that damages for mental distress could not be awarded without expert medical testimony as to causation. Mental distress damages are statutorily permitted and the relationship between the alleged discrimination and testimony of the plaintiff's mental distress were not so unrelated in the minds of a lay person as to require expert testimony.

Comment: Many lawyers view as their "stock in trade" clever little changes in the phrasing of documents that accomplish the clients' objectives but skirt legal prohibitions. Many clients expect their lawyers to supply such devices. Here is more evidence (as if we needed more) that in the area of discrimination law, courts frequently look to substance, rather than appearance. Your client had better have a fully defensible explanation as to policy changes that have the impact of perpetuatuating prior discrimination, even if the client's true motives in making the change are innocent.

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