Soules v. United States Department of Housing & Urban Development
967 F.2d 817 (1992)
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Rule of Law:
Inquiries about a prospective tenant's children, including their age and whether they are noisy, do not violate the Fair Housing Act's prohibition on discriminatory statements (§ 3604(c)) if they are motivated by a legitimate, non-pretextual reason rather than a discriminatory preference against tenants with children.
Facts:
- In April 1989, realtor Mary Jean Downs was hired to rent a second-floor apartment, with instructions from the owner to find a tenant who could 'live harmoniously' with the elderly tenants on the first floor.
- Sherry Soules, a single mother with a twelve-year-old daughter, called Downs about the apartment.
- During the call, Downs asked Soules how old her child was. Soules responded confrontationally, and the conversation became 'unpleasant.' Downs did not pursue Soules's application further.
- Soules contacted Housing Opportunities Made Equal (HOME), which sent two testers. A tester posing as a single person with no children was offered an appointment to see the apartment.
- A second tester, who said she had a seven-year-old son, was asked if her son was quiet because an elderly couple lived downstairs. This tester was never shown the apartment.
- During this same period, Downs offered the apartment to the Perrys, another family with children whom she managed at a different property.
- Downs ultimately showed Soules a different, less appealing apartment and falsely told her nothing in the desired area was available.
- The apartment was eventually rented to a single woman with no children under eighteen.
Procedural Posture:
- Sherry Soules and HOME filed a discrimination complaint with the U.S. Department of Housing and Urban Development (HUD).
- The case was adjudicated by Administrative Law Judge William C. Cregar.
- The Administrative Law Judge issued an order dismissing the petitioners' discrimination claims under the Fair Housing Act.
- The ALJ's order became a final order of the Secretary of HUD.
- Soules and HOME (petitioners) petitioned the United States Court of Appeals for the Second Circuit for review of the final order from HUD (respondent).
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Issue:
Does a landlord's inquiry into the age of a prospective tenant's child and whether the child is noisy constitute a statement indicating a discriminatory preference based on familial status in violation of § 3604(c) of the Fair Housing Act, when the stated purpose is to ensure a quiet environment for an elderly downstairs tenant?
Opinions:
Majority - Meskill, Circuit Judge
No. A landlord's inquiry into the age of a prospective tenant's child and whether the child is noisy does not, in and of itself, violate the Fair Housing Act if supported by a legitimate, non-discriminatory reason. The court applies an 'ordinary listener' standard to determine if a statement indicates an impermissible preference under § 3604(c). Unlike facially discriminatory statements (e.g., 'whites only'), inquiries about children are not per se violations because legitimate reasons, such as compliance with zoning laws or ensuring a quiet environment, may exist. In such cases, the fact-finder may examine the speaker's intent, not as an affirmative defense, but to determine the context and how an ordinary listener would interpret the statement. Here, the Administrative Law Judge (ALJ) found that Downs's questions were motivated by a legitimate concern for the quiet enjoyment of the elderly downstairs tenants. This reason was found not to be pretextual, a conclusion strongly supported by the fact that Downs offered the same apartment to another family with children. The court held that the ALJ's finding was supported by substantial evidence and therefore affirmed the dismissal of the claim.
Analysis:
This decision clarifies the application of the Fair Housing Act's familial status protections, establishing that not all inquiries about children are per se illegal. It carves out a space for landlords to address legitimate concerns like noise, provided their reasoning is not a pretext for discrimination. By allowing an inquiry into intent to determine how an 'ordinary listener' would perceive a facially neutral statement, the court introduces a more nuanced, context-dependent analysis for § 3604(c) claims. This precedent balances the FHA's anti-discrimination mandate with the practical realities of property management, though it may make it more difficult for plaintiffs to win cases based on subtle or ambiguous statements.
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