Court Allows Discrimination in Roommate Selection

One of my passions is to help people be fair to their roommates. But how fair are you required to be to your potential roommates? Roommate.com is a popular roommate finding site, which allows you to search for roommates based on sex, age, sexual orientation, and family status. Is this fair? The Fair Housing Council of San Fernando Valley thought not, and the case landed in the 9th Circuit Court of Appeals.

The Court tasked itself with interpreting the Fair Housing Act, to see if it applies to the roommate search process. The Fair Housing Act prohibits landlords/owners from renting or selling a “dwelling” based on race, sex, religion, or national origin.  Under the Fair Housing Act, you can’t even post an advertisement stating a preference for a tenant that fits one of these categories. So if the Act applies to roommates, helping people search for roommates of a certain sex is against the law.

The question is: are individual bedrooms within an apartment a “dwelling” protected by the Fair Housing Act? The court gave its answer on February 3rd, and the answer was no: the Act does not protect roommate searches.

Now, I’m not a lawyer or a law student, so my opinion on this issue is strictly editorial. But as an important roommate fairness issue, I would like to weigh in.

On the one hand, it’s realistically quite hard to live in some cities without a roommate (New York, for instance). If discrimination is allowed in roommate choice, then a person being discriminated against is at a serious disadvantage in finding a place to live in a desirable neighborhood. Surely, the Fair Housing Act was designed to prevent this from happening. This was my first instinct, and I was a little bit shocked by the opinion.

However, after reading the opinion itself, I found myself mostly agreeing with the logic of the argument. The big difference between discriminating as a landlord and discriminating as a potential roommate is that, as a landlord, you don’t have to live with your tenant. Renting an apartment to only certain races, sexes, or nationalities is discrimination, pure and simple. However, I can imagine legitimate religious or gender-based reasons for picking a certain roommate (for instance, you share a bathroom or kitchen with them).

Who you bring in to your private home is a very personal decision that the state has no business regulating. This is the part of the opinion that convinced me.

The home is the center of our private lives. Roommates note our comings and goings, observe whom we bring back at night, hear what songs we sing in the shower, see us in various stages of undress and learn intimate details most of us prefer to keep private…. [two paragraphs omitted] “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home.” Lawrence v. Texas, 539 U.S. 558, 562 (2003).

Holding that the FHA applies inside a home or apartment
would allow the government to restrict our ability to choose
roommates compatible with our lifestyles. This would be a
serious invasion of privacy, autonomy and security.

For example, women will often look for female roommates
because of modesty or security concerns. As roommates often
share bathrooms and common areas, a girl may not want to
walk around in her towel in front of a boy. She might also
worry about unwanted sexual advances or becoming romantically involved with someone she must count on to pay the rent.

An orthodox Jew may want a roommate with similar
beliefs and dietary restrictions, so he won’t have to worry
about finding honey-baked ham in the refrigerator next to the
potato latkes… Taking away the ability to choose roommates with similar dietary restrictions and religious convictions will substantially burden the observant Jew’s ability to live his life and practice his religion faithfully. The same is true of individuals of other faiths that call for dietary restrictions or rituals inside the home.

One could add many other examples. It would be odd to think that the Fair Housing Act was trying to prevent people from considering these roommate compatibility issues.

What was not made explicit by this opinion is whether or not individuals have a legitimate right to discriminate based on race in their choice of roommate. It bothered me that many other examples are used, but no comment is made to clarify this confusing line between private choice and civil rights. It’s especially frustrating in light of the history of the FHA, which began as Title VIII of the 1968 Civil Rights Act. In light of this racially charged history, I found the following two remarks of the opinion extremely off-putting.

Because of a roommate’s unfettered access to the
home, choosing a roommate implicates significant privacy
and safety considerations… when you invite others to share your living quarters, you risk becoming a suspect in whatever illegal activities they engage in.

While safety is obviously a legitimate roommate concern, the omission of race from most of an opinion combined with a discussion of “safety considerations” and “illegal activities,” left me with a bad taste in my mouth. What exactly is the Court implying? Though it is left unsaid, this passage implies to me that generalized racial fears about crime are an allowable justification for a person to publicly conduct a roommate search explicitly based on race. This is the kind of thing I was worried about before I read the opinion.

In fairness, this might not be the intent of the opinion, and a more specific opinion about race discrimination among roommates isn’t required to rule on the issue. If Chief Judge Kozinski felt there were potential constitutional problems (as argued above) with defining “dwelling” as a bedroom within a home, this meant the Fair Housing Act doesn’t apply to roommate selection, so the law as a whole doesn’t apply, which is enough to make a decision in this case without dealing with the hypothetical example of a racially-based roommate search.

However, in context, the wording chosen felt to me like a defense of racist thinking. While safety is a good reason to preserve people’s personal choice, that doesn’t make it a legitimate reason to using race as a search criterion before you even meet someone. People ought to make an assessment about how safe a roommate will be by speaking with them, or assessing their individual reputation. Allowing Roommate.com users to hypothetically search only for certain races would go back to my worry about groups being discriminated against and not being able to find an apartment and being kept out of the neighborhood.

That said, there are also non-racist cultural reasons to want to live with people of the same race or national origin as you. For instance, one may want to live with only Russian graduate students because one admires their music or food. Some people may enjoy living with people with whom they share cultural interests, such as an interest in black culture. I’m not sure we need a law specifically forbidding racial based searches if most searchers are non-exclusionary, and I think a private right to live with whom you choose exists. But the way in which the court left things leaves me worried that the Constitution leaves no remedy against a hypothetical situationt in which roommate ads for desirable apartments can feature bylines like “Whites only.”

On balance, I would agree that the Fair Housing Act should not apply to individual bedrooms in the interests of personal privacy and common sense. I would agree that individuals have a right to pick their roommates in individual cases, and that common standards of decency are keeping blatant racism out of most roommates advertisements I have seen. However, if Congress were to pass a law called the “Civil Rights For Roommates Act” in response to evidence of racist roommate searches, banning a search-by-race feature from roommate selection websites ought to be constitutional.

You can read the coverage that brought this to my attention in the LA Times.

* Full disclosure: Splitwise has a link exchange with a competing roommate website, EasyRoommate. Roommate.com redirects to Roommates.com, for some reason. I added some clarifying comments at 3pm on February 7th due to early feedback.

Published by

Jon Bittner

Splitwise helps you and your friends keep track of shared expenses, so that bills (and friends) get paid on time.

19 thoughts on “Court Allows Discrimination in Roommate Selection”

  1. While I agree with your concerns about racial discrimination, I honestly think that if someone is actually going to be biased enough to want to exclude someone of a different race as their roommate, it is going to be safer for the one that’s being discriminated against. If some white guy is adamant about not living with a black guy (or vice versa), but the FHA forces him to consider the black guy as a roommate, do you really think that the two will get along?

    Being able to get along most of the time is key to having a good roommate arrangement, and if you have such conflicting elements that will be impossible. Whether it’s a Kosher Jewish person vs. a bacon addict, or a shy young woman not wanting a male roommate, or a white supremacist not wanting a black roommate, I think it works in the favor of the one being discriminated against as far as a hostile roommate situation is concerned.

  2. @CT I think that’s definitely a legitimate point – you wouldn’t want roommates to be forced to live with anyone they hated or felt uncomfortable with for whatever reason, because that’s definitely likely to cause even more problems. I’m more worried about the case where the whole neighborhood starts posting ads that (for instance) Asian roommates need not apply. If that started happening a lot, I would hope it would be constitutional to pass a law forbidding that kind of discrimination (in advertising at least). But I’m not a lawyer, and I’m not entirely sure this is a defensible position.

  3. Another issue that is alarming, aside from race, is that of disability. This is mentioned and, invariably, hotly debated on other blogs and posts relating to this issue.

    We rightly worry about seeing ads that read “Whites only” for instance, but we should be equally concerned about ads that read “No wheelchair users” or “Sighted people only”. Many have vehemently defending this as a legitimate criterion on which to discriminate in ads because wheelchair users and sighted people would both potentially require assistance or would require the arrangement of furniture and items to be different. These are definitely legitimate concerns when they are actually the case, but they are fueled by fear and prejudice. As with employers, many renters seeking roommates wrongly assume that the necessary accommodations will be heavily burdensome or costly. There’s a compelling reason to forbid people from posting some discriminatory preferences in roommate listings, as the author seizes on with respect to race. Very often, our fears about certain populations can be allayed by frank conversation prior to signing a lease.

    If a space is physically “inaccessible” due to narrow interior door widths (as is the case in MANY apartments, especially in older cities), a wheelchair user may not be a suitable roommate, but many wheelchair users have limited mobility and can park their wheelchair in the hallway outside their room or bathroom and walk or transfer to another assistive device such as a cane/walker for the remaining distance. Blind roommates may require merely that items be kept off the floor and that their items not be moved, stipulations levied by many sighted people already! These are very individual considerations that renters and potential roommates can very frequently work out in the same way that many with initial apprehensions about living with members of different races, religions, and even genders find their fears allayed by a frank and open conversation between the potential cohabitants. Very often, people of different backgrounds are able to set aside their differences, which often sets the stage for common interests to come to the forefront and serve as a scaffold upon which to build a successful roommate relationship and/or friendship.

    This said, we should not require by law that people open their homes to any individual whom they believe will be incompatible with their lifestyle. These discriminatory preferences, whether we sympathize with them or not, are at the discretion of the original inhabitant. It is difficult to legislate what is in a person’s heart.

    But allowing people to state these discriminatory preferences in a housing ad, even for roommates, would put many at a disadvantage in realizing equal access to housing by giving people tools to easily eliminate them from applicant pools based on unsubstantiated concerns. I guess my gut-feeling is that we can’t tell roommate-seekers that they can’t discriminate on these factors, but we can tell them that they can’t use these criteria to select against applicants without considering other factors as well. I am eager to see this dialogue continued.

    1. The “unsubstantiated concerns” part is valid, since some of us out here are constantly victims of Misperception Discrimination. People look at the colour of our skin, ASSUME what “race” we must be, and ASSUME lifestyle and cultural inclinations that we actually AREN’T part of. I don’t think that the way I talk, act, dress, or carry myself should indicate any connection to “ghetto” culture but people are going just by the shade of my skin pigmentation and NOTHING ELSE. Even if I’m “suited and booted” when I show up.

  4. I think you should be allowed to discriminate your roommate in any way. If it’s ok for a Latino to date only girls that are blonde, tall white girls with blue eyes, then it’s ok for a Korean girl to prefer to have a Korean female roommate. It’s not like you’re the one that is passing the rent. My rule is simple: if you ain’t paying for it then don’t worry about what other people do with their preference. That goes with guys preferring guys and girls preferring girls whether it’s marriage, roommate, dating or whatever.

  5. This is hilarious. The cognitive dissonance is so powerful that you’re honestly asking a question in an almost paradoxical and double standerd way without even seeing how ridiculous you sound.

    So, fearing for safety based on an almost mythological pop trend of male violence is ok. Thinking that only religious groups share similar personal habits and should have the right to seek similar views is ok. But, acknowledging that vast racial differences in crime would be something to base one’s security needs on is RACIST!!! Thinking that people of different races might live differently is RACIST!

    Why even have preferences anymore? We should all just be forced to integrate. But, not just RACIST! whites. Everyone should be forced. No more nationality or race based dating websites. No more special interest websites at all. One world. One culture one love.

    1. Considering how BlackLivesMatter is an extremely racist group in practice… yeah, one should definitely admit to feeling wary about that kind of association.

      This whole topic and it’s comments are interesting though. I’m considering moving out of my current apartment, and I know that since I can’t just room with a family member, I’m obviously going to have preferences that, as much as people in this pc world are scared of people having preferences on, will involve race, gender, and religion.

    2. Glad to see I’m not the only one who knows that “thinking that people of different skin colours might live differently is RACIST!” That accounts for all the doors that get slammed in my face not only “from Sea to Shining Sea” but “around the Northern Hemisphere.” One particularly light-skinned Hispanic woman who had rented to me, told me when I was moving out, “people think you’re “black” when they first see you, that’s why.” And that automatically brings up so many “cultural” and lifestyle and even educational things that I’m also NOT, it’s unbelievable. Within nanoseconds. When I start speaking and the Queen’s English comes out (or reasonably proper “Belgian” French) the bat-crap surprise on their faces…is making me want to go to Antarctica or Greenland as long as I could telecommute to some job that I could get and DO sight-unseen, build my own igloo and not deal with people and their instantaneous racist assumptions…

  6. So the BBC had a similar article about adverts for flatmates (the UK has different laws), but what they said was whilst technically race and religion could not be stated, it was possible to write attributes (and skirt the laws by publishing adverts in languages relevant tot he culture). So whilst saying ‘Polish only’ is wrong, must speak Polish and familiar with Polish culture is fine. ‘Jewish only’ is wrong but must respect ‘Jewish dietary requirements’ is fine. And that seems like a good balance.

    1. Yeah, well, someone “Red Indian” who happens to either BE Jewish or be dating a Jewish guy, would probably fit a “must respect Jewish dietary requirements” requirement but would show up at the door “the wrong colour” like what has plagued me my entire life. Yeah, I get doors slammed in my face by white Jewish people too. My Jewish boyfriend happens to be Israel-raised and more “middle eastern looking” (at least according to people whom I have to show his picture to before they believe that “someone your colour” deserves a guy who looks like my own FATHER…another issue, believe me). The whiter ones tend to shun me when they see me, too. I have a Jewiccan necklace but even when I’m wearing THAT it still happens. It’s always “see brown skin = slam door” sort of thing.

    2. It shouldn’t surprise anyone that AmeriKKKan racism comes from the UK. It certainly doesn’t come from France. (No, QUEBEC racism comes from France…but I digress…) British and American racism is skin-pigmentation based, period. French racism is…well “technically” it’s based on class and how you speak the language but as that can be learned or unlearned (like Eliza Doolittle on “My Fair Lady”) it’s initially based on skin pigmentation there too. I can’t count the times it’s been automatically PRESUMED that I must not be able to speak French (by their bat-crap surprise when I start speaking it) the minute Francophone people SEE me, too. That HAS to be skin-colour based as it happens when I haven’t SAID ANYTHING YET. In ANY language.

  7. As Native American who gets treated “like Black” when people see me, and as someone who has thus had nothing but problems finding roommate situations or rooms-for-rent situations everywhere I’ve been my entire adult life of 35+ years, I must say that in my old age I’m getting sick and tired of trying to “force” myself in where I”m not wanted. I grew up in the suburbs and went to college-prep schools in a “good” area (read “white” area even though it’s mostly Asian, Hispanic, and very little actual “white”) in the 70’s and 80’s and I found that in the 90’s when I was in college and trying to find off-campus living situations I suddenly got treated everywhere I tried to find a place or a room, like an entire CULTURE I was not, and treated accordingly. “Black” areas don’t like the way I live my life even though at first glance people think I “look” like “one of them.” “White” areas either don’t respond to me at all or slam the door in my face when I show up, even though I “grew up ‘white'” as minorities say. I have to “settle” for Hispanic areas in the USA – where there’s usually a language barrier, and also a lifestyle “culture shock” as I wasn’t raised “Hispanic” culturally either.

    My point is, misperception discrimination exists in housing and it can render otherwise normal people either homeless or living in cheap motels (when available). People look at the colour of your skin and instantaneously assume how you “must” live your life even if you’ve bent over backwards refuting all the stereotypes in your ad, in writing, or over the phone! For instance: I don’t smoke ANYTHING. I can’t even count all the times I’ve said that over the phone but in person when they see me they’re still saying “No smoking in my house!” sort of thing. As if they didn’t hear me, choose to selectively FORGET that I already SAID I don’t smoke, or are calling me a LIAR about my lifestyle. And so on, and so forth. And etc, etc. I have a picture of my boyfriend in my purse that I now SHOW PEOPLE to assure them that I won’t be “bringing black ghetto trash into the house.” (He’s Jewish and actually looks like my father back in World War 2). I have to resort to showing people pictures of my father (which I also keep in my wallet) to assure them that I’m not even the RACE they think “is going to trash their house and bring ghetto culture to the neighbourhood.” I’ve spent a lot of my life wanting to go to either Greenland or Antarctica and build my own igloo so I can live by myself and not have to deal with trying to find a place to live either renting it FROM other people or with other people actually living IN it.

    Unfortunately, misperception discrimination lawsuits only win when they’re employment-related, not housing-related. So far.

    1. I just found this post, years after its original publication date. Since I’m running into quite a problem finding housing in New York City, I feel compelled to share my perspective. I don’t want to divulge too much personally identifying information, so I’ll say simply that I’m a member of multiple (at least four) different easily discernible “minority” groups, each of which has struggled with discrimination. When I was an undergraduate I’d answer housing ads via phone. Landlords or potential roommates would speak at length with me about availability–practically begging me from the conversation to move in; I’ve great credit, outstanding rental references, and leave a tiny carbon footprint–to the benefit of my communities. I’d show up to see the place the same day–often within an hour–and either the apartment would be magically rented (in the time it took me to book it over to the address), or my once-warm would-be roommates, looking awkwardly back and forth among each other, would tell me they’d call me with a final decision that night. The call would never come.

      Now much older, I find things haven’t changed at all. I was invited to teach for the NYC school system as a Teaching Fellow. The salary for the “service” position is in the ballpark of $50K. I’m paying off student loans, must pay partially for a teaching degree, and must pay union dues. After taxes, I’d be taking home around $1500/month. Again: student loans…

      Anyway, I’ve spent the past three months searching within a 2-hr commute from Brooklyn. I keep running up against a strong gender bias in housing ads. At first, I just ignored it. But then I found them. The explicit age-range criteria. And this before the “No X (ethnicity/race)” ads. The cumulative effect of all these exclusion criteria, in one of the country’s toughest housing markets, for a struggling teacher (or similar worker), can be catastrophic. I’ve actually very seriously looked at transitional living housing for those sobering up from substance abuse–because this is about all I can afford.

      Sorry, I didn’t mean to steal this thread, and I’m not looking for pity. But I’m trying to put authentic experience to the often theoretical question of where personal freedom to discriminate ought to be permissible. Yes, I agree that we should all feel comfortable with anyone in our homes. However, when there are deep and broad cultural biases–especially during economically tumultuous times and in barely affordable housing markets, these cultural realities can make survival for people who, for no other reason than the skin they’re born into, exceedingly, even insurmountably, difficult.

      I’ll be renting a motel outside NYC and commuting 4-hrs a day. It will cost nearly every penny I take home. It would have been nice to find a roommate to make living reasonably close to my school and my students possible. But no, I don’t begrudge others their freedoms to decide whom they associate with.

    2. “I’ve spent a lot of my life wanting to go to either Greenland or Antarctica and build my own igloo so I can live by myself and not have to deal with trying to find a place to live either renting it FROM other people or with other people actually living IN it.” Thank you for your honest, vulnerable admissions. I read your posts after commenting myself. We’ve had very similar experiences. I actually did spend a year living on a 40 acre farm on the northernmost tip of the US/Canadian border for the very reason you asserted (quote). It was one of the most depressing, isolating experiences of my life. For an entire year I spoke to nearly no one. I tried to move into a neighboring town–about a half hour drive away. But you already know the outcome of that.

      I don’t know what the solution is. Discrimination isn’t going away. The emotional/psychological effects are traumatizing enough. But when there are all these financial, medical, legal, and other social-structure loopholes to fortify fundamental human group-based-biases that have nothing to do with an individual’s character or behavior, the situation is downright demoralizing and even threatens people’s survivability. I’ve fantasized about leaving the US, teaching abroad. But looking on the teachers’ blogs and community boards, I read far too often that there’s a very strong race bias just about everywhere. Even outside the USA. What are you going to do. (Notice there’s purposely no question-mark ending that sentence…)

      Best of luck to you.

  8. I’ve just found this in a random Google search after I was twice discriminated against by potential roommates. Both times, it was due to my age. The first time, just prior to my arrival, I received a text, “How old are you? I forgot to ask.” I was just at the door, so I didn’t answer. There were two young people and they were terribly embarrassed. They tried their stock line on me, “But you can’t climb the stairs!” However, it was obvious that rehearsed line wouldn’t work. I’m nearly 60 but I’m a distance runner. Upon leaving the apartment, I noticed that these young people failed to hear a detector that was out of batteries and beeping in their home. I, an older person, could hear the sound. I pointed it out to them. I wondered if I had successfully blown their stereotype of me as a decrepit and deaf old granny. I told them how to replace the batteries, and left.

    Just two days ago, I was “found” in a roommate search. I guess they didn’t see my age. They said in an email that I was “perfect” for them. Upon seeing me, they didn’t even realize that I was the one they had contacted. Uh oh, too old! They realized their mistake, hoping they’d hear something objectionable about me, some polite reason to turn me down. Of course I knew this and kept them very frustrated a good long time, just hoping for a reason to say no besides, “We do not want an older person, sorry.” Finally I told them I had a dog. Immediately, I could see them already getting up to leave, packing their things, saying the landlord didn’t allow dogs. Within a minute I was alone in the coffee shop, my own coffee completely untouched. I knew they wanted to end the conversation as quickly as they could and be rid of me.

    Outside, the rain came down in a downpour as I waited for the bus. I had to get undercover. The only place was a Verizon phone shop. I felt like a homeless person. Now the word is “transitional.” Ugly euphemism it is. Verizon was the one who started my bad credit.

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