Case Summary and Outcome

The Fair Housing Councils of San Fernando Valley and San Diego brought a suit against Roommates.com, an internet-based business that facilitates the pairing of roommates. The United States Court of Appeals for the Ninth Circuit found that the home is a private area that should remain free from government invasion, and, thus the Fair Housing Act and the California Fair Employment and Housing Act did not apply to actions by Roommates.com.

Facts

Roommates.com (Roommates), an LLC, is an internet-based business that helps its users find roommates. Roommates has roughly one million new roommate postings per year and over 40,000 views per day. New users complete a profile, answer questions about themselves, and have the option of adding more information in an “Additional Comments” section. Users also list qualities they prefer in a roommate, such as sexual orientation and gender. Based on their stated preferences and profile information, users are matched with a list of other roommate seekers.

The Fair Housing Councils of San Fernando Valley and San Diego (FHCs) brought a suit in federal court against Roommates. In this suit, FHCs alleged that Roommates’ practice of sorting users based on disclosed characteristics was a violation of both the Fair Housing Act (FHA) and the California Fair Employment and Housing Act (FEHA). The lower court had dismissed FHCs’ claims and found that Roommates was immune under the Communications Decency Act (CDA).

The United States Court of Appeals for the Ninth Circuit reviewed this case on the issue of CDA immunity and determined that “Roommate[s] was protected by the CDA for publishing the ‘Additional Comments’ section, but not for (1) posting questionnaires that required disclosure of sex, sexual orientation and familial status; (2) limiting the scope of searches by users’ preferences on a roommate’s sex, sexual orientation and familial status; and (3) a matching system that paired users based on those preferences.” The Ninth Circuit had not initially considered violations of FHA.

On remand, the lower court held that Roommates violated FHA and FEHA when it solicited discriminatory preferences from its users and then used these preferences to match users. The lower court granted a permanent injunction and summary judgment in favor of FHCs, and it also awarded the FHCs attorney’s fees in the amount of $494,714. See U.S., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). Roommates appealed this lower court decision heard after the initial remand.

Decision Overview

Kozinski, C.J., delivered the opinion of the Court. The United States Court of Appeals for the Ninth Circuit considered the issue of whether FHA’s provisions on discrimination apply to roommate selection and Roommates involvement in it. Among other things, the FHA outlaws “discrimination on the basis of ‘race, color, religion, sex, familial status, or national origin” during “the ‘sale or rental of a dwelling,’” and the FHA goes on to define “dwelling.”

In determining the reach of the FHA with regards to “dwellings,” the Court first considered Congress’ intent. The court found that Congress likely did not want to interfere with “personal relationships inside the home,” but distinguished this arrangement from that between a landlord and a tenant. According to the Court, this latter relationship is what Congress likely intended to regulate with FHA.

The Court then looked to constitutional issues, such as “the freedom to enter into and carry on certain intimate or private relationships.” This freedom, which has been recognized by the U.S. Supreme Court, includes the freedom to enter into relationships without interference by the state. When determining if a relationship is covered under the recognized right of intimate association, the Court considered factors such as “size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship.” After considering these factors, the Court held that the roommate relationship qualifies as an intimate association.

Citing the concurring opinion in Minnesota v. Carter, the Court found that government’s regulation of a person’s roommate selection was an invasion into the home, an area where there is special protection given and there is a freedom from “‘unwarranted government intrusion.’” The Court reasoned that applying the FHA to issues inside the home would be a “serious invasion of privacy, autonomy and security.”

Therefore, given that the FHA does not apply to shared living units, an individual cannot unlawfully discriminate when selecting a roommate. Furthermore, given that the act of selecting a roommate is not discriminatory under the FHA, the Court found that Roommates’ assistance with roommate selection is not a violation of the FHA. The Court clarified that, even though Roommates itself is not involved in an intimate association, “it is entitled to raise the constitutional claims of its users,” for whom it is facilitating these intimate roommate associations. The Court found that  FEHA did not apply either. Accordingly, the Court vacated the lower court’s ruling on attorney’s fees and remanded to have judgment entered for Roommates.