U.S. Department
of Justice
CNY Fair Housing v. Swiss Village LLC, et al. (N.D.N.Y.)
CNY Fair Housing filed a complaint against Defendant Swiss Village alleging disparate impact and intentional discrimination on the basis of national origin and race, in violation of the FHA, based on the Defendant’s policy of only renting out apartments if a prospective occupant spoke and read English. Defendant filed a motion to dismiss, arguing that CNY Fair Housing had failed to state a claim and that HUD Guidance regarding renting to persons who are Limited English Proficient (LEP) was not due any deference. See https://www.hud.gov/sites/documents/LEPMEMO091516.PDF The United States filed a statement of interest arguing that Plaintiff had plausibly alleged disparate impact and intentional discrimination claims and that the HUD LEP Guidance was due deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944).
The Court denied the Defendant’s motion in its entirety. The Court first found that, contrary to the Defendant’s position, the HUD LEP Guidance did not assert that LEP status alone is a protected class under the FHA, but rather that language criteria may be evidence of discrimination, the same as any other potentially discriminatory criteria. The Court held that the HUD LEP Guidance was “persuasive and entitled to deference” because it was consistent with case law regarding the use of language as a proxy for race and national original, was consistent with other HUD Guidance, and that the Fourth Circuit had given it deference in a recent case, Reyes v. Waples Mobile Home Park LP, 903 F.3d 415, 432 & n.10 (4th Cir. 2018). The Court also found that the Complaint alleged sufficient facts to state a disparate impact claim (it repeated statistical Census data allegations regarding national origin and race made in the Complaint). The Court found that the Complaint stated a claim for intentional discrimination in that “[d]iscriminatory intent may be inferred from the totality of the circumstances, and this Court discerns no reason why” that “would not include evidence of a language policy being used as a proxy for discrimination on the basis of national origin or race.” Finally, the Court held that a “Plaintiff does not need to identify the specific national origin or race of particular tenants in order to state a prima facie case of discrimination under the FHA” and that “neither disparate impact nor discriminatory statement claims require a showing that Defendants were aware of the national origin or race of the prospective tenants.”
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