DOJ seal United States Department of Justice
Civil Rights Division
RELIGIOUS FREEDOM IN FOCUS

March - May 2009
Volume 38
 

Religious Freedom in Focus is a periodic email update about the Civil Rights Division's religious liberty and religious discrimination cases. Through vigorous enforcement of:

  • Federal statutes prohibiting religion-based discrimination in education, employment, housing, public facilities, and public accommodations;
  • Federal laws against arson and vandalism of houses of worship and bias crimes against people because of their faith; and
  • The Religious Land Use and Institutionalized Persons Act (RLUIPA);

the Civil Rights Division is working to protect the right of all people to practice their faiths freely and without discrimination.

Back issues of this newsletter may be found at www.FirstFreedom.gov. You may also contact the Special Counsel for Religious Discrimination, Eric W. Treene, at (202) 353-8622.

 

IN THIS ISSUE:

Fair Housing Act Covers Allegations in Mezuzah Suit, United States Tells En Banc Seventh Circuit

On May 13, the United States argued before the en banc United States Court of Appeals for the Seventh Circuit that the Fair Housing Act extends to discrimination that occurs after purchase of a property, and asked the court to reinstate a suit alleging that a Chicago condominium board discriminated against members of a Jewish family by barring them from maintaining a mezuzah on their door frame. Acting Deputy Assistant Attorney General Steven Rosenbaum argued in the case, Bloch v. Frischholz, that based on its text and implementing regulations, the Fair Housing Act clearly covers post-acquisition discrimination and that the issue of whether the family faced discrimination because of religion should have been permitted to go to a jury.

A mezuzah is a small case containing a piece of parchment with a religious text on it that observant Jews affix to the doorposts of their homes. The Blochs had a mezuzah on the door frame of their condominium in Chicago for many years. Beginning in 2004, the condominium board began to interpret a rule barring “mats, boots, shoes, carts, or objects of any sort . . . outside Unit entrance door” to bar mezuzot. The Board had maintenance staff remove the Bloch’s mezuzah on several occasions and threatened them with a fine if they replaced it.

In 2005, the Blochs filed suit under the Fair Housing Act over the board’s actions. A federal trial court dismissed the suit, holding that the Fair Housing Act only applies to discrimination in the sale or rental of property, and does not apply to discrimination that occurs after the property has been acquired. Thus, the court ruled that discrimination by a condominium board in how a property is managed, since this occurs after purchase, would not be covered. The trial court also ruled that the Blochs had not shown intentional discrimination. A panel of the United States Court of Appeals for the Seventh Circuit affirmed, 2-1, holding that the Fair Housing Act “does not address discrimination after ownership has changed hands.” The majority further held that since the condominium board’s rule against objects outside owners’ units was neutral toward religion, that is, that it applied to secular as well as religious objects, even if the Fair Housing Act reached condominium board rules, there would be no violation here. The en banc, or entire, Court of Appeals ordered rehearing of the case, and requested the United States to file a brief setting forth its position. The United States submitted a brief and requested permission to participate in the oral argument.

During oral argument, Mr. Rosenbaum argued for the United States that the text of the Fair Housing Act plainly encompasses discrimination that occurs after property is acquired. Section 3604(b) of the Fair Housing Act makes it illegal to discriminate “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.”

Mr. Rosenbaum emphasized that the words “terms,” “conditions,” “privileges,” “services,” and "facilities" all suggest things that often can occur after acquisition. This is particularly true with regard to “privileges,” which suggests things such as use of common areas, swimming pools, laundry rooms, and other privileges that come with enjoyment of a dwelling and are ongoing in nature. Moreover, he argued, the Department of Housing and Urban Development regulations interpreting the Fair Housing Act apply its provisions to post-acquisition discrimination, and these regulations are entitled to deference by the courts.

Since post-acquisition religious discrimination is covered by the Fair Housing Act, Mr. Rosenbaum argued that whether the actions of the condominium board to remove the mezuzah were done because of the Bloch’s religion, as they allege, was an issue that should have been allowed to be presented to a jury. The court took the case under advisement.

United States’ Religious Discrimination Case on Behalf of New York City Transit Workers Should Move Forward, Brief Argues

In a brief filed March 16, the Civil Rights Division argued that its suit alleging that the New York City Transit Authority discriminated against workers wearing religious headcoverings should go to trial. The case, United States v. New York City Transit Authority, alleges that the Transit Authority discriminated against Muslim and Sikh bus and subway workers in violation of Title VII of the Civil Rights Act of 1964 by refusing to permit Muslim women to wear headscarves and Sikh men to wear turbans unless they cover them with Transit Authority caps or affix Transit Authority logos to them.

The suit alleges both that the Transit Authority selectively enforced a no-headcovering rule against Muslims and Sikhs and that the Transit Authority failed to make a reasonable accommodation to its dress code for the wearing of religious headcoverings for religious reasons. The brief, filed with United States District Court for the Eastern District of New York, argues that the court should deny the Transit Authority’s motion for summary judgment and schedule the case for trial.

Title VII prohibits discrimination on the basis of race, sex, religion, and national origin in hiring and in the terms and conditions of employment. Title VII also requires employers to make a reasonable accommodation of employees’ religious observances and practices, unless doing so would create an undue hardship for the employer.

As set forth in the United States’ brief, prior to 2002 Muslims and Sikhs working as bus drivers, subway drivers, and in other public contact positions had worn turbans and headscarves for religious reasons with their Transit Authority uniforms. One complainant had worn his turban for more than 20 years working as a subway driver, and another had worn her headscarf for more than 13 years. Starting in 2002, however, the Transit Authority began to interpret its dress policies to forbid the wearing of headscarves and turbans unless a Transit Authority cap was placed over the turban or headscarf, or if a Transit Authority patch was affixed to it.

The United States’ brief contends that there is substantial evidence that the Transit Authority has not enforced its bar on non-regulation headcoverings uniformly, and that employees regularly wore New York Mets caps, Yankees caps, and other non-regulation secular headcoverings. The brief contends that the Transit Authority “has engaged in a pattern or practice of selectively enforcing its uniform policy against its Muslim and Sikh employees” in violation of Title VII.

The brief also contends that the Transit Authority has failed to meet its obligation to accommodate Muslim and Sikh religious practices under Title VII: “The evidence demonstrates that the Transit Authority’s standard operating procedure is to deny Muslim and Sikh employees reasonable accommodations for their religious practices under the guise of enforcing a uniform policy, even though reasonable accommodations exist that would resolve the religious conflict without imposing an undue burden on the Transit Authority.” The employees had offered to wear headcoverings of a color that would match the uniform and wear a Transit Authority logo or identification badge on the collar or chest of their uniforms. The United States’ brief argues that accommodating the employees would not cause an undue hardship on the TA: “[T]he Transit Authority has provided no explanation as to how allowing Muslim and Sikh employees to wear turbans or khimars [headscarves] without Transit Authority logos would adversely affect its chosen public image or detract from the perceived professionalism of its work force. . . . Unsupported speculation of such harm is insufficient to show undue hardship.” The brief therefore concludes that the court should deny the Transit Authority’s motion for summary judgment, and should allow the case to proceed to trial.

Additional information about the Civil Rights Division’s enforcement of laws against employment discrimination is available at the Employment Litigation Section homepage.

Justice Department Settles Housing Discrimination Suit Against New Jersey Apartment Complex

On April 30, the U.S. District Court for the District of New Jersey approved a settlement resolving a suit brought by Department of Justice against the owners and managers of a New Jersey apartment complex alleging that they had violated the Fair Housing Act by discriminating based on religion, national origin and race. The settlement in the suit, United States v. Triple H. Realty et al., required the defendant to pay $200,000 in damages and civil penalties and take various corrective measures.

The suit alleged that the Cottage Manor Apartments in Lakewood, N.J. transferred and attempted to transfer Hispanic and African American tenants from a more desirable building in the complex to units in the rear of the property that were not as well maintained and had fewer amenities in order to make room for Jewish tenants. The suit alleged that the Hispanic and African American tenants were also charged higher rent than Jewish tenants for similarly sized apartments. Under the settlement, the defendants are required to pay $170,000 to 23 identified victims of discrimination and an additional $30,000 to the government as a civil penalty. The settlement also requires fair housing training for defendants’ employees, adoption of policies to prevent discrimination, record keeping and reporting requirements, and other corrective measures.

When the settlement was announced, Acting Assistant Attorney General Loretta King said: “Segregating tenants and providing discounted rents based upon religion, national origin or race, is degrading and discriminatory. The Civil Rights Division will vigorously pursue such discrimination.”

Fighting illegal housing discrimination is a top priority of the Justice Department. The Federal Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability.

More information about the Fair Housing Act can also be found at www.usdoj.gov/fairhousing or www.hud.gov/fairhousing.


United States Department of Justice
Civil Rights Division
http://www.usdoj.gov/crt