The United States District Court for the District of Oregon ("the Court") recently issued an opinion with possible ramifications for any parties potentially the target of a Fair Housing Act ("FHA"), Americans with Disabilities Act ("ADA"), or Rehabilitation Act of 1973 ("Rehabilitation Act") claim.
In Gibson v. Community Development Partners, No. 3:22-cv-454-SI, 2022 U.S. Dist. LEXIS 189828 (D. Or. Oct. 18, 2022), the Plaintiff, Katie A. Gibson ("Plaintiff"), was a transgender woman suffering from gender dysphoria, who on May 1, 2021, began a residential tenancy at the Milepost 5 Studios apartment complex in Portland, Oregon ("the Complex"). The Complex is an affordable housing community for creatives and working artists owned and operated by Defendant Community Development Partners ("CDP"). On March 23, 2022, less than a year into her tenancy, Plaintiff filed suit against CDP raising claims under the FHA, ADA, and Rehabilitation Act, as well as multiple state level claims under Oregon's various analogs to these federal statutes.
Plaintiff's allegations documenting her mere ten-month stay at the Complex were incendiary, alleging the existence of threatening and violent treatment by her co-tenants and dangerous and uninhabitable living conditions. Specifically, Plaintiff claimed that, because of her gender identity, other tenants had assaulted, menaced, harassed, and "threatened to kill" her numerous times. She further alleged that within the Complex there was "rampant drug use and sale, prostitution, methamphetamine production, squatters inhabiting the premises, a stolen car and bicycle 'chop shop' operation, tenants' belongings and trash creating obstructions in common areas, filthy and dangerous conditions in shared bathrooms, discarded syringes left in common spaces, package theft, bed bugs, and open firearm displays." Plaintiff alleged that she had complained to CDP regarding these issues on numerous occasions, but that her complaints had fallen upon deaf ears and gone ignored.
FHA claims
In response, CDP moved to dismiss Plaintiff's FHA discrimination allegations, which were based upon her transgender identity and gender dysphoria condition. In ruling on CDP's motion the Court first addressed the potential existence of any disparate treatment, finding none, as even were the Court to assume that Plaintiff was a protected class member she had failed to link the poor property conditions to her protected characteristic. Instead, all Plaintiff had done was "demonstrate a pattern of [] neglect affecting all tenants who use the community spaces," and thus her claim failed as she could not show "she was treated differently from other tenants at all, let alone because of a protected status."
Beyond the property conditions Plaintiff also claimed that the allegedly violent and harassing actions by her co-tenants constituted disparate treatment, as CDP had ignored her complaints concerning these behaviors and "failed to intervene" to prevent them, with this failure to act serving to "implicitly ratify" the tenants' conduct and thus constituting discriminatory action by CDP. The Court found this claim unavailing, holding that a "failure to intervene" to prevent tenant–on–tenant harassment would only constitute disparate treatment where the landlord had intervened in similar matters in the past, and then subsequently refused to intervene in these same matters when they were related to a protected status. Put more simply, it "cannot [be] assume[d] that a landlord's blanket failure to respond to complaints constitutes discrimination."
As to any potential disparate impact, the Court interestingly observed that CDP's "failure to respond to complaints of harassment or unsafe living conditions might constitute a neutral policy that has a significantly adverse or disproportionate impact on persons who share Plaintiff's protected characteristics," thus satisfying the necessary criteria. However, as Plaintiff had failed to raise any such policy or practice allegation, and had failed to plead any facts which would permit the drawing of such an inference, no disparate impact could be found.
Finally, in addressing any lack of reasonable accommodations, the Court observed that Plaintiff's gender dysphoria condition could constitute a "handicap" within the meaning of the FHA, as the condition would fall within the classification of a "mental impairment which substantially limits one or more of such person's major life activities." 42 U.S.C. § 3602(h). However, even were the Court to assume this criteria was met, Plaintiff's claim still failed as she had not linked this condition to a specific necessary accommodation, as it remained "unclear what specific accommodation she sought, how such accommodation may have been necessary to address her disability or 'handicap,' and how it would make her housing situation equal to the opportunities afforded non-disabled persons."
Plaintiff's FHA claim was accordingly dismissed, with the Court careful to limit its holding by stating that it was disposing of Plaintiff's claim by: "Assuming without deciding that Plaintiff's status as a transgender woman with a disability of gender dysphoria might constitute sex and disability discrimination under the FHA."
ADA and Rehabilitation Act claims
CDP also moved to dismiss Plaintiff's ADA and Rehabilitation Act claims, arguing that gender dysphoria did not fall within the purview of either Act as both exclude "'gender identity disorders not resulting from physical impairments' from their definitions of disability. 29 U.S.C. § 705(20)(F)(i); 42 U.S.C. § 12211(b)." Interestingly, to avoid these prohibitions, Plaintiff argued that gender dysphoria was not a "gender identity disorder," but instead a medical diagnosis falling within the American Psychiatric Association's classification of mental disorders. The Court agreed with Plaintiff, observing that recently issued Fourth Circuit case law comported with Plaintiff's allegations. The Court found it was unnecessary to rule on this issue, however, as these claims failed "for the same reason" as Plaintiff's FHA claim–a lack of factual contentions describing necessary accommodations or documenting any link between CDP's actions and her gender dysphoria.
Plaintiff's remaining state level claims were dismissed as the Court declined "to take on the task of crafting novel Oregon law, and therefore decline[d] supplemental jurisdiction."
Looking forward
Despite Plaintiff's claims resulting in dismissal, this matter was ultimately a close-call with several takeaways that can be gleaned. First and most obviously, there will be little debate that transgender individuals fall within a protected class. It also appears likely that, as more of these claims are litigated, courts intend to expansively and inclusively interpret the terms "disability" and "handicap," as here the Court was willing to construe both Plaintiff's transgender status and her gender dysphoria impairment as satisfying these criteria, and likely would have allowed this matter to proceed had Plaintiff provided more sufficient factual assertions.
As to landlords, property managers, or any on-site party responsible for handling tenant complaints, this case makes clear that transgender parties may indeed require "reasonable accommodations," as although Plaintiff was unable to articulate specifically what these hypothetical accommodations would consist of, the Court endorsed that they could indeed exist. These parties should also be mindful that a blanket failure to respond to complaints of tenant–on–tenant harassment can cause disparate impact violative of the FHA, as it appears that had Plaintiff adequately pled this contention the Court would have permitted it to proceed.
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