Discriminating Roommates

The Roommates decision might look like a setback for civil rights, it also has pro-civil-rights implications.

Salem-News.com

(COLUMBIA, Mo.) - Can a roommate-seeker be sued for housing discrimination? Last week, the Ninth Circuit Court of Appeals became the first court in the nation to say, “no.” The case involved a lawsuit against Roommates.com, a roommate-locator service that asked users to fill out a form stating the sexual orientation of their preferred roommate and whether they wanted to live with children. Roommates.com then matched people according to these preferences. This ran afoul of state and federal fair housing laws, which prohibit housing discrimination based on sexual orientation or the residence of children in the home. (Preferences for race, religion, and national origin, though not at issue here, would similarly violate the law.)

The court ruled that the First Amendment’s guarantee of free association should take roommate-seekers-- and by extension, a roommate matching service -- outside of the law’s coverage entirely. The right to freely associate, after all, includes the right not to associate with someone. The court reached the sensible conclusion that the roommate relationship involves a level of intimacy that does not lend itself to governmental interference, even in the service of a laudatory goal like combatting housing discrimination. Roommates share close quarters and often spend a good deal of time together. As the court notes, “[W]e are fully exposed to a roommate’s belongings, activities, habits, proclivities and way of life.” Things that might be very important to a roommate-seeker – for example, whether the prospective roommate keeps a kosher kitchen or speaks Mandarin as a first language – would be both bizarre and illegal for a landlord to consider when renting to a tenant.

Last year I conducted a study in which I reviewed 10,000 housing ads post on Craigslist from all over the country, which led to some unexpected findings. For instance, racial, ethnic, and religious minorities are actually more likely to express discriminatory preferences for roommates. This could be because, as minorities, they feel it is particularly important to establish their home as a space where they can be with someone like themselves, without having to navigate differences in language, culture, or deeply held beliefs. Nevertheless, before the Ninth Circuit’s ruling such individuals were technically in violation of the law.

My study also revealed what you might expect: ads for roommates are qualitatively different from ads for tenants. Landlords post ads with basic descriptions of the property. Roommate-seekers tend to post ads that sound more like personals, stating preferences for music, politics, schedules, and hygiene . . . and sometimes (but much less often) for religion, ethnicity, race, or familial status. In a very real way, most of the roommate ads I reviewed looked like ads for friends – for someone who is similar to, or at least compatible with, the person taking out the ad.

Though the Roommates decision might look like a setback for civil rights, it also has pro-civil-rights implications. If people have a right to live with whomever they choose, and if even the strong state interest in eradicating discrimination cannot interfere with this right, then people in non-traditional living arrangements should be protected from governmental intrusion into their homes, too. Specifically, unmarried couples – straight or gay – who cohabitate and raise children together should not be barred from living in areas zoned for single families simply because they fail to meet an overly-strict definition of “family” that requires household members be related through blood, marriage, or adoption. (In case you think this is unlikely, it happened in my home state of Missouri just a few years ago.)

It would be great if more people from different backgrounds roomed together. The best way for society to become more integrated is for people to get to know each other as people. But governmental intrusion into highly intimate relationships and living arrangements is not the right path. If the court had ruled otherwise the potential for backlash would have been enormous. Prohibiting people from seeking roommates with whom they will feel comfortable is not an effective means to reduce discrimination, and it violates the right of free association where it matters most.

Professor Oliveri has been at the University of Missouri School of Law since 2005 and currently serves as the associate dean for research and faculty development. Prior to coming to MU, Professor Oliveri served as a trial attorney with the U.S. Department of Justice through the Honors Graduate Program.

She practiced in the Civil Rights Division, Housing and Civil Enforcement Section. She litigated a number of significant cases involving housing discrimination and sexual harassment in housing. In 2003 she was awarded a Special Commendation from the Attorney General for outstanding service. Professor Oliveri attended Stanford Law School, where she was an Articles Editor for the Stanford Law Review and was elected to the Order of the Coif. Professor Oliveri's scholarship focuses on housing discrimination, residential segregation, and sexual harassment. Her published work has appeared in the Stanford Law Review, the Harvard Civil Rights-Civil Liberties Law Review, and the Vanderbilt Law Review, among other journals.