by Bruce D. Voss

The anti-discrimination provisions of the federal Fair Housing Act do not apply to the selection of roommates, the Ninth Circuit Court of Appeals has ruled.

The case, Fair Housing Council v. Roommate.com, arose from a website that received about 40,000 visits a day from people looking for roommates. Users are asked to list their preferences for roommate characteristics, including sex, sexual orientation, and family status, and based on those preferences the website matches users and provides them a list of housing seekers or available rooms meeting their criteria. A district judge first ruled that practice was unlawful discrimination under the Fair Housing Act, but the Ninth Circuit reversed.

The Ninth Circuit noted that the Fair Housing Act prohibits discrimination on the basis of “race, color, religion, sex, familial status, or national origin” only in the “sale or rental of a dwelling.” Renting a room and sharing living space with roommates was simply not the same as a landlord selling or renting an entire housing unit, the Ninth Circuit concluded. The Ninth Circuit also found that applying the Fair Housing Act “inside a home or apartment would allow the government to restrict our ability to choose roommates compatible with our lifestyles,” and would be a “serious invasion of privacy, autonomy and security” in violation of the U.S. Constitution right of free association.

The opinion, written by Ninth Circuit Chief Judge Kozinski, highlights a trend by more conservative federal judges to limit the scope of federal anti-discrimination laws to the particular language selected by Congress: nothing more, nothing less. If continued, that trend may produce fewer anti-discrimination lawsuits against Hawaii property owners and associations, and more predictable outcomes for those lawsuits that are filed.