• Ronald A. Flate

Fair Housing Act Doesn’t Apply to Roommates

An online roommate matching website helps compatible roommates to find each other. Part of the process requires users of the service to answer questions about their gender and sexual orientation and whether children will be living with them. Users are asked to give their preferences as to those same characteristics so that like-minded individuals can be matched. This process came to the attention of some nonprofit housing rights organizations that unsuccessfully sued the roommate service, alleging violations of the federal Fair Housing Act (FHA).

The FHA prohibits discrimination based on sex or familial status in the sale or rental of a “dwelling.” The FHA defines “dwelling” as essentially a living unit designed or intended to be occupied by a family. The lawsuit against the roommate service failed because a federal court reasoned that “[i]t makes practical sense to interpret `dwelling’ as an independent living unit and stop the FHA at the front door.” It would be difficult to divide a single-family house or apartment into separate “dwellings,” and, in any event, the court concluded that when it passed the FHA, Congress did not mean to interfere with relationships inside a single home.

The court also found that constitutional concerns tipped the balance away from applying the FHA to roommate decisions. Because of the role of certain intimate human relationships in safeguarding individual freedom, choices to enter into and maintain such relationships must be secured against undue intrusion by the state. The right of intimate association is not restricted exclusively to family members, and that right also implies a right not to associate.

To determine whether a particular relationship is protected by the right to intimate association, courts look to size, purpose, and selectivity and to whether others are excluded from critical aspects of the relationship. The roommate relationship easily qualifies: People generally have very few roommates; they are selective in choosing roommates; and nonroommates are excluded from the critical aspects of the relationship, such as using the living spaces.

In the court’s view, aside from immediate family or a romantic partner, it’s hard to imagine a relationship more intimate than that between roommates, who share living rooms, dining rooms, kitchens, bathrooms, and even bedrooms. Because of a roommate’s unfettered access to the home, choosing a roommate also implicates significant privacy and safety considerations.

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