666 F.3d 1216 (9th Cir. 2012)
Roommate.com, LLC operates an internet-based business that helps roommates find each other.1 The website receives over 40,000 visits a day and roughly a million new postings for roommates are created each year.2
When users sign up, they must create a profile by answering a series of questions about their sex, sexual orientation and whether children will be living with them.3 Users are asked to list their preferences for roommate characteristics, including sex, sexual orientation and familial status.4 Based on the profiles and preferences, Roommate matches users and provides them a list of housing-seekers or available rooms meeting their criteria.5 Users can also search available listings based on roommate characteristics, including sex, sexual orientation and familial status.6
The Fair Housing Councils of San Fernando Valley and San Diego sued Roommate in federal court, alleging that the website's questions requiring disclosure of sex, sexual orientation and familial status, and its sorting, steering and matching of users based on those characteristics, violate the Fair Housing Act and the California Fair Employment and Housing Act.7 The district court initially dismissed the claims, holding that Roommate was immune under section 230 of the Communications Decency Act.8 The Ninth Circuit reversed in part, holding that Roommate was not protected by the CDA for posting questionnaires that required disclosure of those characteristics, limiting the scope of searches by users' preferences on a roommate's sex, sexual orientation and familial status, and a matching system that paired users based on those preferences.9
On remand, the district court held that Roommate's prompting of discriminatory preferences from users, matching users based on that information and publishing these preferences violated the FHA and FEHA, and enjoined Roommate from those activities.10 Roommate appealed the grant of summary judgment and permanent injunction, and also the district court's order awarding the FHCs $494,714.40 in attorney's fees.11 The FHCs cross-appealed the amount of the attorney's fees.12
Prior to commencing litigation, the FHCs investigated Roommate's alleged violations and, in response, started new education and outreach campaigns targeted at discriminatory roommate advertising.13 The resources spent on those campaigns were not associated with litigation.14 Because Roommate's conduct caused the FHCs to divert resources independent of litigation costs and frustrated their central mission, the FHCs have organizational standing.15
Whether the Fair Housing Councils of San Fernando Valley and San Diego have organizational standing to sue Roommate.com, LLC?16
An organization has direct standing to sue when it shows a drain on its resources from both a diversion of its resources and frustration of its mission.17 Standing must be established independent of the lawsuit filed by the plaintiff.18 An organization cannot manufacture an injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all.19
Yes. Prior to commencing litigation, the FHCs investigated Roommate's alleged violations and, in response, started new education and outreach campaigns targeted at discriminatory roommate advertising. The resources spent on those campaigns were not associated with litigation. Because Roommate's conduct caused the FHCs to divert resources independent of litigation costs and frustrated their central mission, the FHCs have organizational standing.
The Fair Housing Councils of San Fernando Valley and San Diego have organizational standing to sue Roommate.com, LLC.20
Related opinions on this issue
Ikuta concurs in the holding that the Fair Housing Councils have standing.21 She expresses concern that the circuit's test for organizational standing cannot be reconciled with Supreme Court precedent requiring a concrete and particularized injury.22 She argues that the organizations suffered no invasion of their interest in obtaining funding or recruiting members.23
They were not hampered from advancing their mission because they spent money investigating and addressing housing discrimination in the exact way they planned through education and outreach.24 Ikuta concludes that the Fair Housing Councils' voluntary redirection of resources to a new frontier of discrimination reflects adaptive organizational management rather than injury.25 She suggests that the circuit revisit its test en banc.26
Whether the Fair Housing Act applies to the selection of roommates in shared living arrangements?27
The FHA prohibits discrimination on the basis of race, color, religion, sex, familial status, or national origin in the sale or rental of a dwelling.28 A dwelling is defined as any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.29 Where an otherwise acceptable construction of the statute would raise serious constitutional problems, the court will construe the statute to avoid such problems unless the construction is plainly contrary to the intent of Congress.30
No. If the FHA extends to shared living situations, it is quite clear that what Roommate does amounts to a violation. The pivotal question is whether the FHA applies to roommates.31 The FHA can reasonably be read either to include or exclude shared living arrangements.32 Applying the FHA to the selection of roommates would raise substantial constitutional concerns regarding the right to intimate association.33 The narrower construction excluding roommate selection from the reach of the FHA is therefore adopted.34
The Fair Housing Act does not apply to the selection of roommates in shared living arrangements.35
Whether the California Fair Employment and Housing Act applies to the selection of roommates in shared living arrangements?36
The FEHA makes it unlawful to discriminate in the sale or rental of a housing accommodation.37 A housing accommodation is defined as any building, structure, or portion thereof that is occupied as, or intended for occupancy as, a residence by one or more families.38 Where an otherwise acceptable construction of the statute would raise serious constitutional problems, the court will construe the statute to avoid such problems if the construction is fairly possible.39
No. The same constitutional concerns over the right to intimate association would arise if the FEHA were applied to roommates. Like the FHA, the FEHA definition of housing accommodation is ambiguous.40 Applying the canon of constitutional avoidance, the narrower construction that excludes roommate selection from the statute's reach is adopted to avoid those serious constitutional problems.41
The California Fair Employment and Housing Act does not apply to the selection of roommates in shared living arrangements.42
Related opinions on this issue
Ikuta dissents from the majority's decision to apply the canon of constitutional avoidance to the FEHA claim.43 She argues that FEHA is unambiguous regarding its applicability to shared living arrangements.44 The statute expressly defines discrimination as not including the use of words stating or tending to imply that the housing being advertised is available only to persons of one sex, where the sharing of living areas in a single dwelling unit is involved.45
This expresses the legislature's intent to exempt sex-specific advertisements for shared living units but not advertisements that discriminate on the basis of other protected characteristics such as race or religion.46 Ikuta concludes that because FEHA is unambiguous the majority cannot interpret it to avoid constitutional problems.47 She would remand the issue to the district court for initial resolution after hearing from the parties.48
Whether the district court's award of attorney's fees to the Fair Housing Councils should be vacated?49
When a party is no longer the prevailing party after the underlying judgment is vacated, the district court's order awarding attorney's fees must also be vacated.50
The district court's award of attorney's fees to the Fair Housing Councils should be vacated.54