United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
JOHN J. McCONNELL, Jr., District Judge.
On February 1, 2012, Mardea Caulcrick-Grimes and Ernest Grimes became the proud parents of Janjay Grimes, their first child. Whatever the other consequences of the happy event, and there no doubt were many, the birth of Janjay caused the owner of Briarwood Meadows (the apartment complex in Warwick where the family lived) to serve notice that the family would have to either move from their one-bedroom apartment into a two-bedroom unit or leave the complex altogether. The March 12, 2012, letter, sent by limited partner Defendant Noreen D. Graul, advised that the occupancy limits precluded more than two persons in a one-bedroom apartment. The letter gave the family a six-month grace period if they paid a premium rental fee. If they neither moved to a two-bedroom unit nor paid a premium for a delayed move, they faced eviction once their lease expired in April. (ECF No. 56-7).
Briarwood Meadows Limited Partnership (hereafter "Briarwood") relied on an interpretation of Rhode Island's residential occupancy code to assert a "two heads per bedroom" policy (ECF No. 57 at 18); it maintained that the code required at least seventy (70) square feet of bedroom space for the first occupant plus at least fifty (50) square feet for each additional occupant (including a baby), for a total of 170 square feet in a bedroom in which three people slept. It is undisputed that the Grimeses' bedroom measured at least 150 square feet. Briarwood contends that no other room in the apartment could be used as a bedroom because no other room conformed to code requirements for a sleeping area.
The Grimeses filed a complaint with the Rhode Island Commission for Human Rights, alleging under both federal and state fair housing laws that they were being discriminated against on account of their "familial status." The Commission agreed and brought this lawsuit on behalf of them and Allison Cote, a tester who attempted unsuccessfully to rent a one-bedroom apartment for her "pretend" three-person family. The case is before the Court on the Plaintiffs' Motion for Partial Summary Judgment, limited to liability, and the Defendants' Motion for Summary Judgment. (ECF Nos. 40 and 56).
For reasons explicated below, not the least of which is that the applicable state building code now and at that time demanded only 150 square feet of bedroom space for three occupants, the Court finds that there are no genuine issues of material fact, that the occupancy policy of the Defendants had an adverse discriminatory and disparate impact upon the Grimeses because of their familial status, and that the Plaintiffs are therefore entitled to summary judgment as to liability on both federal and state law grounds.
The federal Fair Housing Act ("FHA") was passed as part of the comprehensive Civil Rights Act of 1968 in a multi-pronged response to "a period of considerable social unrest;..." Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., ___ U.S. ___, 135 S.Ct. 2507, 2516 (2015) (hereafter, "Inclusive Communities" ). Focusing in particular on "residential segregation and unequal housing and economic conditions in the inner cities as significant, underlying causes of the social unrest, " the Kerner Commission recommended, and Congress passed, "a comprehensive and enforceable open-occupancy law, making it an offense to discriminate in the sale or rental of any housing... on the basis of race, color, religion or national origin." Inclusive Communities, supra . 
Twenty years later, Congress amended the Act to include "familial status" as a prohibited category of discrimination, based in part on two HUD-sponsored studies that found policies prohibiting children were used as a pretext to discriminate on the basis of race. "Familial status" is defined as a household with one or more people under the age of eighteen (18) living with a parent or guardian. 42 U.S.C. § 3602(k). In a bi-partisan effort, Congress "carefully crafted" this amendment to protect "single-parent families, young families with children, and poor families... without placing an undue burden on owners and landlords." Tim Iglesias, Moving Beyond Two-Person-Per-Bedroom: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards, 28 Ga. St. U. L. Rev. 619, 628-629 (2012). In support of the Senate's revised bill, which explicitly extended coverage to pregnant women and families seeking to adopt minors, U.S. Representative Don Edwards (D-CA), then Chairman of the House Civil and Constitutional Rights Subcommittee, stated:
There are few experiences more humiliating, more cruel, than to be denied housing because of your race, religion, sex, handicap, or because you have children. Discrimination in housing, perhaps more so than in any other area, continues to be pervasive in our country. It divides us into hostile camps. It encourages racial tensions, crime, and disillusionment. The House is now called upon to give final approval to another essential law, a statute that can bring hope and some comfort to men, women, and children who need and deserve our help.
134 Cong. Rec. H6491-02, 1988 WL 185128.
The 1988 amendment inserting "familial status" was impelled not only by the widespread restrictions on children in rental units,  but by the increasing crisis of family homelessness and the belief that all Americans are entitled to the "basic human right" of decent, affordable, and stable housing. In a simultaneous effort to eradicate homelessness, the U.S. House of Representatives introduced, and Congress eventually passed, the Omnibus McKinney Homeless Assistance Act of 1988. At a hearing in August 1988, Representative Nancy Pelosi (D-CA), then a member of the Housing Subcommittee, stated: "More people are homeless today in America than at any time since the Great Depression. Overall, the homeless population grew by 25 percent in 1987 alone. Families with children are now the fastest growing group among the homeless. In the richest Nation on earth, growing numbers of men, women, and children are living on the streets and eating out of garbage cans." 134 Cong. Rec. H6196-01, 1988 WL 174641. "When families are unable to obtain rental housing, 63% resort to living with relatives or friends and 33% end up living in cars, vans, abandoned buildings, or tents." Bilott, The Fair Housing Amendments Act of 1988: A Promising First Step Toward the Elimination of Familial Homelessness? 50 Ohio St.L.J. 1275, 1280 at n.53 (1989), citing J. Greene & G. Blake, " A Study of How Restrictive Rental Practices Affect Families with Children, 3 (1980) (prepared for the Office of Policy Development and Research, U.S. Department of Housing and Urban Development (1980)). "The U.S. Conference of Mayors recently estimated that families with children now constitute more than 30 percent of the homeless population nationwide, with some American cities reporting figures closer to 50 percent." Bilott, supra at 1280-81.
While states were slow to address the problem, Rhode Island was among the first to prohibit discrimination on the basis of familial status. Id. at 1281, citing only fourteen (14) states, including Rhode Island, which by 1988 "had proscribed to any extent discrimination against families with children in rental housing based on familial status." The Rhode Island Fair Housing Practices Act ("FHPA") declares that "the practice of discrimination in rental housing based on the potential or actual tenancy of a person with a minor child" undermines public policy, because it "subverts" the fundamental principles upon which Rhode Island and the United States were established. R.I.G.L. § 34-37-1(c). The existence of discrimination based on familial status has detrimental consequences for Rhode Island communities, including "condemn[ing] large groups of inhabitants to dwell in segregated districts or under depressed living conditions in crowded, unsanitary, substandard, and unhealthful accommodations;" contributing to intergroup tension; compromising the public health, safety, and general welfare; and creating substantial burdens on the public revenues for the relief of these undesirable effects. Id.
It is with this backdrop, of clear, established federal and state social policy, expressed by the United States Congress and the Rhode Island General Assembly, that the Court reviews the Commission's claims.
The Defendants first posit a procedural barrier to the Court's consideration of the merits of the Commission's discrimination claims. They argue that the administrative process leading up to the filing of the Complaint was flawed and did not constitute exhaustion of administrative remedies. (ECF No. 57-4). Exhaustion was allegedly deficient in two respects: (a) that the Commission did not give sufficient notice of the reliance on discriminatory impact (as compared to discriminatory treatment ) and (b) that the Commission's efforts at conciliation were inadequate for a similar reason - because the Defendants were not put on adequate notice of the theory of discriminatory impact.
The exhaustion requirement serves to give a potential defendant "prompt notice of the claim and to create an opportunity for early conciliation." Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996) (employment discrimination). That notice then serves to limit the scope of any subsequent complaint to "the charge filed... and the investigation which can reasonably be expected to grow out of that charge." Id.
The claim under the FHA and FHPA is that of discrimination in housing. Although disparate treatment and disparate impact are theories of liability, they are not independent causes of action. The Court must look at the substance of the charge, focusing "on the factual allegations made..., describing the discriminatory conduct about which a plaintiff is grieving." Williams v. New York City Housing Auth., 458 F.3d 67, 70 (2d Cir. 2006), quoted in Rivera-Andreu v. Pall Life Sciences PR, LLC, No. 14-1029, 2014 WL 5488409 at *3 (D.P.R. October 29, 2014).
The gist of a discriminatory impact claim, as discussed more fully below, is that a facially neutral policy was implemented in a way that adversely and disproportionately impacted a protected group. There is no question that the Defendants were on notice that the Grimeses were a family with children and therefore members of a protected class, that the catalyst for their being denied housing was the addition of a child to their family, that the reason they were denied housing was because of a policy applied to them rather than because of anything unique (or "offensive") about them or their conduct, and that the policy - which was Defendants' own - was facially neutral. Ironically, while the Defendants' memorandum claims insufficient notice because, inter alia, the charge "make[s] no reference to... a facially neutral policy, " their defense at the pre-determination conference was specifically that they were enforcing "a neutral occupancy policy." (ECF No. 56-4 at ¶ 4). While the statistical evidence of disparate treatment of families with children as opposed to households without was neither proffered nor mentioned at the administrative level, that goes more to awareness of the proposed proof of the claim, and is not essential to notice of the nature of the claim. Pacheco v. Mineta, 448 F.3d 783, 792 (5th Cir. 2006) (plaintiff need not allege a prima facie case before the agency in order to exhaust).
The charge filed by the Commission in this case clearly described the offending action as an alleged breach of the lease "due to an excess in the number of occupants for a one-bedroom unit." (ECF No. 56-10 at ¶ 7). An occupancy policy is a facially neutral practice or policy. See Zawacki v. Realogy Corp., 628 F.Supp.2d 274, 281 (D.Conn. 2009) (court must look at actual facts alleged to determine whether notice adequate). The Grimeses did not allege specific actions on the part of the Defendants demonstrating a purposeful intention to keep children out of the complex. Nor did they allege that there was anything unique about them that prompted enforcement of the occupancy policy. Nor did they point to anything about their particular family status, other than the number of persons, that prompted the Defendants' actions. Indeed, the same policy had been cited when the tester was told that her "pretend" family of two adults and a newborn would not be permitted under the occupancy policy to occupy a one-bedroom apartment. (ECF No. 17-2 at ¶ 11).
The judicial complaint need not mirror the complaint filed with the administrative agency. "[T]he scope of the civil complaint is... limited by the charge filed with the EEOC and the investigation which can reasonably be expected to grow out of that charge." Lattimore v. Polaroid Corp., supra at 464 (employment discrimination). Claims may be asserted in a lawsuit "if they are reasonably related to those that were filed with the agency." Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003), quoting Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (claimant's description of national origin sufficient to provide notice of race discrimination). "[I]t is the substance of the charge and not its label that controls." Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 458 (S.D.N.Y. 1998). The claimant's charge need not be specific or plead a prima facie case. Pacheco v. Mineta, supra .
At the pre-determination Conference held in this case on May 24, 2012 the occupancy policy, as a policy, was explicitly discussed. (ECF No. 63-4 at ¶ 15-16). The fact that the policy was uniformly enforced was specifically discussed. Id. at ¶ 13. The words "disparate impact" may well never have been spoken aloud, as the Defendants allege (ECF No. 56-4 at 2), but they need not have been.
The Court finds that the theory of disparate impact was sufficiently exhausted, because the core elements of the claim were known or apparent, because the disparate impact claim was "reasonably related" to the charge, and because the disparate impact ...