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Discrimination in Housing and EmploymentSimilarities and Differences
Susan SaylorAssociate Chief Counsel
Department of Fair Employment and Housing Oakland Legal Unit
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The Evolution of Fair Housing Law
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Four Step Analysis
1. Parallels between Title VII and Title VIII
2. Employment discrimination precedent; borrowing and guidance
3. Substantial equivalency
4. Liberal construction
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Parallels between Title VII and Title VIII
Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2 et seq. [Employment discrimination]
Title VIII of the Civil Rights Act of 1968, 42 U.S.C.A. §3601 et seq. [Fair Housing Act (FHA)]
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Role of Employment Discrimination Precedent
“We apply Title VII discrimination analysis in examining Fair Housing Act (“FHA”) discrimination claims.” (Gamble v. City of Escondido (9th Cir. 1997) 104 F. 3d 300, 304.)
“[P]rinciples at issue in cases of employment discrimination are often applied in housing discrimination cases.” (Auburn Woods I Homeowners Association v. Fair Employment and Housing Commission (2004) 121 Cal. App. 4th 1578, 1591
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Substantial Equivalency
FEHA is intended to be “substantially equivalent” to the Fair Housing Act (FHA) “FEHA in the housing area is thus intended to
conform to the general requirements of federal law in the area and may provide greater protection against
discrimination.” (Brown v. Smith (1997) 55 Cal. App. 4th 767, 780.)
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The FEHA is to be liberally construed and is independent
from federal law
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Borrowed Concepts from Employment Law
How to prove discrimination McDonnel Douglas burden-shifting analysis for
circumstantial evidence of intentional discrimination Availability of disparate impact theory
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Imperfect transfer of ideas from employment to housing
Harassment Reasonable Accommodation
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Differences
How Housing Discrimination Law is Unique1. Who is your client?
2. Standing
3. Procedure
4. Damages
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Who is your client?
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Standing
Trafficante v. Metropolitan Life Ins. Co. (1972) 409 U.S. 205, 210 [Any person harmed by a discriminatory act has standing to sue.]
Plaintiffs alleged that they were harmed by living in a racially segregated community
“The person on the landlord’s blacklist is not the only victim of discriminatory housing practices; it is …‘the whole community.’”
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Plaintiffs
Anyone who claims to have been injured by a discriminatory housing practice
Persons who believe “they will be injured by a discriminatory housing practice that is about to occur.”
Testers Fair Housing Councils
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Procedure
No exhaustion requirement
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Damages
Compensatory and Punitive Damages Humiliation, Embarrassment, Emotional Distress,
and Other Intangible Harms Fair Housing Council Damages
Unruh Statutory Damages $4,000 per discriminatory act
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THE END