William Bleveans: Students’ gender-specific subletting advertisements violate fair housing acts

Although Facebook, Inc., has received its fair share of scrutiny recently, the behavior of UCLA students on the platform demands attention as well.

Around the end of every school year, dozens of UCLA students post in a Facebook page titled “UCLA Sublets/Apartments” to sublease their apartments to their peers staying in Westwood for the summer. It has become common for female tenants to state, most of the time explicitly, that they will only sublease their apartments to people of a certain gender. Visitors of the page are often greeted with disclaimers such as “female subletters only.” These posts raise a series of possible legal concerns related to fair housing and, perhaps even more importantly, undercut UCLA’s commitment to diversity and inclusion.

Although students’ posts are seemingly innocuous and although subletting per se is legal when the landlord agrees, renters who state they will only sublease to a certain gender violate the federal Fair Housing Act of 1968 and the California Fair Employment and Housing Act of 1959. These statutes prohibit renters from turning any potential occupant away on the grounds of their gender, race, religion, national origin and a whole host of other criteria.

The federal Fair Housing Act of 1968, for example, makes it illegal for any individual to lease or sublease a dwelling with the intention of discriminating on the basis of the aforesaid criteria. The state statute also “prohibits discrimination in all aspects of the housing business,” according to the California Department of Fair Employment and Housing.

By preventing men and gender non-conforming individuals from subleasing their apartments, students are violating fair housing law and placing a black mark on the reputation of a university purportedly committed to equity, diversity and inclusion. Even more than this, UCLA’s failure to warn students about legal liabilities arising from discriminatory subleasing practices amounts to a serious error. If the university wants to uphold its values and protect its students from legal liability, it should ensure gross violations of fair housing law do not happen right under its nose.

At the very least, the university should make it clear that it does not condone its students’ discriminatory practices. In addition, UCLA should issue guidelines on nondiscriminatory subleasing practices that square with the applicable federal and state statutes, if only to protect students from possible legal liability.

Explicit declarations that men and gender non-conforming individuals will not be allowed to sublease a certain apartment constitute easy targets for these fair-housing statutes. Usually, harmful discrimination in housing is incredibly difficult to prove, even when the government collects substantial evidence.

But an explicit statement that men and gender non-conforming individuals cannot sublet a specific apartment is the fair housing equivalent of “No Irish Need Apply” – an antiquated and laughably obvious statement of exclusion.

Furthermore, establishing a violation of fair housing law doesn’t usually require the defendant to have acted with harmful motives, according to the Akron Law Review’s brief on fair-housing violations. That is to say, even if a subleaser added discriminatory language to an advertisement of a sublease because they simply preferred to live with people of a certain gender, they have stilled violated fair housing law.

Moreover, these infringements transcend abstract legal doctrine and affect real people. Tristan Jahn, a rising second-year political science student, and Amaan Maredia, a rising second-year computer science student, said they had difficulty finding an apartment lease for the upcoming school year in part because of pervasive discrimination against nonfemale subleasers. Specifically, the two students observed that the vast majority of subleases advertised on the Facebook page included language restricting nonfemale subletters, making their search for school-year housing much more difficult.

It is true that the federal Fair Housing Act contains an exception that indemnifies renters from fair housing enforcement if they can cite a compelling rationale for their policies. But, as the Akron Law Review notes in its brief, fair housing case law establishes that discrimination in housing on the explicit basis of gender, race, national origin or various criteria cannot be made good by the justification exception in any conceivable circumstance.

Although renters whose practices are only correlated with discrimination are free to offer a justification for their policies, the law still prevents them from advertising that justification, per Nolo.com, a legal reference website. The “justification exception,” therefore, is not applicable under any conceivable interpretation of the facts or the legal precedent at issue.

Of course, there’s the question of whether renters have the right to choose their own roommates. This exception is embodied in the “intimate association” doctrine articulated by the federal courts. In 2012, the 9th U.S. Circuit Court of Appeals ruled in Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, that fair housing law did not apply to the “roommate relationship” because it involves personal intimacy issues that negate constitutional concerns, according to a legal brief from the law firm Fox Rothschild, LLP. However, a renter who advertises a sublease to the general public is not seeking an intimate association with a single roommate, but is seeking out an otherwise unknown member of the public to occupy an apartment.

“Females only” subleases may seem harmless, but they raise a bevy of concerns relating to fair housing. These subleases violate fair housing law and undercut the UCLA community’s commitment to equity, diversity and inclusion.

Let’s hope that the offending renters change their behavior. Although Facebook itself may remain largely untamed, our fair housing laws can certainly restrain the bad behavior of its users.