Standing Up for Fair Housing Rights Doesn’t Mean Standing Alone: Unleashing the Full Potential of the Indiana Fair Housing Act

Doneisha L. Posey, Esq.†
Caroline Ryker, Esq.‡

In June of 1965, Reverend Dr. Martin Luther King, Jr. gave a commencement speech at Oberlin College, titled “Remaining Awake Through a Great Revolution,” in which he said “[l]et nobody give you the impression that the problem of racial injustice will work itself out. Let nobody give you the impression that only time will solve the problem. . . . [W]e must help time and realize that the time is always right to do right.”[1] Throughout the Civil Rights Movement, Reverend Dr. Martin Luther King called people to collaborative action, and because people answered the call, the Civil Rights Movement was successful in advocating for the passage of the Civil Rights Act of 1964 and the Fair Housing Act of 1968.[2]

Fair housing in Indiana is no exception to Reverend Dr. Martin Luther King, Jr.’s call for collaborative advocacy, and the Indiana Fair Housing Act is one mechanism Indiana residents can use to collectively support equality in housing. In fact, the spirit of community collaboration was built into the Indiana Fair Housing Act because the Indiana Fair Housing Act grants standing to individuals who are harmed by discriminatory acts, even when those individuals are not the direct target of the discrimination. In short, standing under the Indiana Fair Housing Act is not limited to persons who are themselves in the protected class against which the housing provider takes a discriminatory action, and therefore individuals who are harmed by housing discrimination in their communities may have standing to file fair housing complaints with the Indiana Civil Rights Commission.

The plain language of the Indiana Fair Housing Act illustrates that an individual who is injured by the discriminatory act of a housing provider has standing to bring a complaint to the Indiana Civil Rights Commission, even if that individual does not fall within the protected class that is the target of the discriminatory act. The Indiana Fair Housing Act provides that “[a]n aggrieved person may . . . file a complaint with the commission alleging the discriminatory housing practice[,]”[3] and that Indiana Civil Rights Commission shall, when the investigation warrants, “immediately issue a finding of reasonable cause on behalf of the aggrieved person.”[4]

Furthermore, the Indiana Fair Housing Act authorizes an aggrieved person to “elect to have the claims asserted in a finding of reasonable cause decided in a civil action.”[5] The term “aggrieved person” is defined extremely broadly as “any person who: (1) claims to have been injured by a discriminatory housing practice; or (2) believes that the person will be injured by a discriminatory housing practice that is about to occur.”[6] Accordingly, the plain language of the Indiana Fair Housing Act authorizes any persons who are injured or who believe they will be injured by a discriminatory act in housing to file a complaint with the Indiana Civil Rights Commission or to file a civil suit on the basis that the Indiana Fair Housing Act was violated.

The interpretation of the Indiana Fair Housing Act as having broad standing is not without precedent. The Indiana Supreme Court reached a similar conclusion in a Indiana Fair Housing Act case when it stated “[t]he Civil Rights Law is to be construed broadly to serve its purpose and explicitly provides for relief to anyone who is ‘personally aggrieved’ by a discriminatory practice, whether or not that person is the direct object of the practice.”[7] Furthermore, the Indiana Fair Housing Act is substantially similar to the federal Fair Housing Act, which authorizes the Indiana Civil Rights Commission to investigate complaints under the Fair Housing Assistance Program.[8] Furthermore, Indiana Courts have continually recognized the close relationship between the Indiana Fair Housing Act and the federal Fair Housing Act.

In State, Civil Rights Comm’n v. Cty. Line Park, Inc., the Indiana Supreme Court noted that the Indiana Fair Housing Act “borrows heavily” from the federal Fair Housing Act and that “in construing Indiana civil rights law [Indiana courts] look to federal case law for guidance.”[9] Additionally, the Indiana Supreme Court has also, in the context of a housing discrimination case brought under the Indiana Fair Housing Act, stated that “[i]n construing Indiana’s Civil Rights Law we look to federal case law for guidance,” a conclusion the Indiana Supreme Court affirmed in State, Civil Rights Comm’n v. Cty. Line Park, Inc., another case brought under the Indiana Fair Housing Act.[10] The federal Fair Housing Act contains the same definition of “aggrieved person” that the Indiana Fair Housing Act contains, and accordingly, Indiana courts and potential complainants can rely on federal case law to determine the scope of standing under the Indiana Fair Housing Act.[11]

Federal courts have determined that if an individual was personally injured by a discriminatory act in housing, then that individual has standing under the federal Fair Housing Act, regardless of whether the individual falls into the relevant protected class. The United States Supreme Court made its foundational declaration on this aspect of standing under the federal Fair Housing Act in Trafficante v. Metro. Life Ins. Co. when the Court held that standing under the federal Fair Housing Act extended as far as Article III standing, “insofar as tenants of the same housing unit that is charged with discrimination are concerned.”[12]

In Trafficante, the United States Supreme Court reversed the lower court’s holding that individuals who are not the intended target of discrimination are “not within the class of persons entitled to sue under the Act” because the United States Supreme Court placed a high degree of importance on the language of the federal Fair Housing Act, which defines an aggrieved person as any “person who claims to have been injured by a discriminatory housing practice.”[13] The Court focused on “individual injury or injury in fact to petitioners” as the key ingredient to standing when individuals who are not the intended target of a discriminatory act bring claims under the federal Fair Housing Act and concluded that where there is injury, there is likely standing under the federal Fair Housing Act.[14]

Over the next few decades, the United States Supreme Court’s holding in Trafficante, while not without controversy, was continually confirmed by the Court. In Gladstone Realtors v. Vill. of Bellwood, the Court was forced to confront its holding in a new context, and ultimately found that the same extensive Article III standing applied in cases brought by parties in court and in cases that were brought in the administrative forum, despite the fact that the term “aggrieved party” does not appear in the language of the federal Fair Housing Act that authorizes immediate lawsuits to be brought by individuals in court.[15] In a footnote, the Court explicitly stated that “as long as the plaintiff suffers actual injury as a result of the defendant’s conduct, he is permitted to prove that the rights of another were infringed.”[16]

Again, in Havens Realty Corp. v. Coleman, the Court faced the question of whether Trafficante’s holding could still survive in its broad form when testers sought standing under the federal Fair Housing Act.[17] The Court upheld Trafficante and held standing was appropriate for testers because “[a]s we have previously recognized, the actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.”[18] Only more recently has Trafficante’s holding been questioned, in an opinion written by the late Justice Scalia.

In an employment case decided under Title VII, the Court reflected on the dictum in Trafficante that suggested Article III standing would also be appropriate in employment cases brought under Title VII and concluded that “we now find that this dictum was ill-considered[.]”[19] In discussing Trafficante’s dictum (creating a statement that is itself dictum) the Court suggested that the cases decided under Trafficante’s holding folded into the analysis a “zone of interests” limitation.[20] However, the Court recognized that the cases following Trafficante explicitly rely on the term “aggrieved person” to find that standing reaches Article III standing requirements.[21] Accordingly, Trafficante holding that standing under the federal Fair Housing Act extends as far as Article III standing is good law with a long and strong history in American jurisprudence.

The Seventh Circuit Court of Appeals also reached the same conclusion as the United States Supreme Court in Trafficante when the Seventh Circuit Court of Appeals decided Gorski v. Troy, a case brought on the basis of familial status under the federal Fair Housing Act.[22] In Gorski, the plaintiffs were a couple who wanted to become foster parents and were told by their housing provider that they would not be approved to have children in their apartment.[23] Relying again on the broad definition of the term “aggrieved person,” the Seventh Circuit Court of Appeals found that “[w]hile the [federal Fair Housing Act] uses the definition of ‘familial status’ to define what constitutes prohibited housing discrimination, it does not limit standing to persons within the class defined by that term.”[24] Turning to the United States Supreme Court’s guidance in Trafficante, the Seventh Circuit Court of Appeals wrote “the Supreme Court has explicitly held, that a plaintiff suing pursuant to the FHA need not be a member of the class that was the object of discrimination to satisfy the injury-in-fact requirement.”[25] The Seventh Circuit has recognized that when the three part test for standing under Article III is met, an individual has standing under the federal Fair Housing Act, even when that individual is not a member of the protected class against which the housing provider intended to discriminate.

Accordingly, an individual can obtain standing under the Indiana Fair Housing Act when they are not a member of the targeted protected class if that individual can meet the requirements of standing under Article III of the United States constitution. The United States Supreme Court has defined the standard for Article III standing as when a “plaintiff must show that he [or she] personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.”[26]

In Lujan v. Defs. of Wildlife, the United States Supreme Court devised a three part test for standing.[27] Plaintiffs must show (1) they suffered an injury in fact; 2) causality between the Defendant’s act and the Plaintiff’s injury, and (3) redressability.[28] Under the Indiana Fair Housing Act, redressability is easily met because the Indiana Fair Housing Act explicitly states the relief that can be granted. Furthermore, causality is established when a nexus can be shown between the act of discrimination and the individual filing the complainant with the Indiana Civil Rights Commission. By far and away, the most complicated aspect of obtaining standing under the Indiana Fair Housing Act for an individual who was not the intended target of discrimination is injury. However, case law shows that there are several ways that an individual who is not the intended target of a discriminatory act can still be injured by discrimination by virtue of living in an environment where discrimination occurs.

It is no surprise that Trafficante is the foundational case on damages for an individual who is not in a protected class that is the intended target of a discriminatory act by a housing provider.[29] In Trafficante, the United States Supreme Court found that “loss of important benefits from interracial associations” is an injury sufficient to support standing under the federal Fair Housing Act.[30] Importantly, the United States Supreme Court found that the injury was sufficient because the tenants all lived in the same apartment complex.[31]

In Havens Realty Corp. v. Coleman, the United States Supreme Court stated that receiving false information about the availability of housing, even when a tester “expect[ed] that he would receive false information” and did not have “any intention of buying or renting a home” was an injury sufficient to support standing under the federal Fair Housing Act.[32] Finally, in Gladstone Realtors v. Vill. of Bellwood, the United States Supreme Court made its broadest finding as to injury for standing when it held that the loss of “the social and professional benefits of living in an integrated society” was sufficient to support standing for home owners in a neighborhood where racial steering was segregating a previously integrated community.[33] The Court even explicitly stated that “we perceive no categorical distinction between injury from racial steering suffered by occupants of a large apartment complex and that imposed upon residents of a relatively compact neighborhood[,]” and recognized that decreasing home values was another economic injury that resulted from discrimination.[34] Finally, as the Seventh Circuit Court of Appeals recognized, injury that results from being prevented from joining a protected class can also result in an injury sufficient to provide standing under the federal Fair Housing Act.[35] Courts have recognized that community members who live in a community that is actively discriminating suffer real injury when diversity is lost.

The Indiana Fair Housing Act was designed to protect Indiana residents from discrimination in housing on the basis of race, religion, color, sex, disability, national origin, and familial status.[36] The legislature, understanding that law alone is not always enough, left room for community members to come alongside members who are the target of discrimination and support them in demanding equality in housing. When a housing provider discriminates against a protected class, the community can directly voice its support for the targeted community member, and the community can voice its complaint against the housing provider to the Indiana Civil Rights Commission on the basis that the entire community is injured when diversity is divested. Together, community members can stand against discrimination in housing and turn a legal requirement into to the touchstone of Indiana’s housing culture by using the Indiana Fair Housing Act to demand equality in housing and reaffirm that “[i]njustice anywhere is a threat to justice everywhere.”[37]

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†              Doneisha Posey, Esq. is currently the Deputy Director and General Counsel of the Indiana Civil Rights Commission, where she previously was appointed as the Administrative Law Judge. She manages the operations of the agency in addition to her role as chief legal counsel. In her capacity as Administrative Law Judge, Ms. Posey presided over cases of discrimination in the areas of housing, employment, education, public accommodations, and credit. Prior to her appointment with ICRC, Ms. Posey practiced in the private sector in the areas of Immigration and Family Law. She also served as a judicial clerk for Chief Judge Nancy Vaidik of the Indiana Court of Appeals during law school. Ms. Posey’s background includes litigation before federal administrative agencies, particularly in the Executive Office of Immigration Review within the Department of Justice, and state and federal courts. Doneisha Posey received her Juris Doctor from Indiana University Robert H. McKinney School of Law and receive her Bachelor of Arts from Marion University. She is admitted to the Indiana Bar and the U.S. District Courts of Northern and Southern Indiana.

 

‡              Caroline A. Stephens Ryker is a Staff Attorney for the Indiana Civil Rights Commission. As a staff attorney, Ms. Ryker litigates complaints under the Indiana Fair Housing Act. She has a deep passion for housing law, and she is excited to share her fair housing knowledge with the Indiana community. She graduated Summa Cum Laude from the Robert H. McKinney School of Law in Indianapolis and received her Bachelor of Arts Degrees in English and Communications from Indiana University Bloomington.

 

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[1] Rev. Dr. Martin Luther King, Jr., “Remaining Awake Through a Great Revolution,” Oberlin C. Archives (Last visited Mar. 19, 2018), available at http://www2.oberlin.edu/external/EOG/BlackHistoryMonth/MLK/CommAddress.html.

[2] Georgetown Law Library, “A Brief History of Civil Rights in the United States,” Geo. L. Libr. (Feb 20, 2018), available at http://guides.ll.georgetown.edu/c.php?g=592919&p=4172702.

[3] Ind. Code § 22-9.5-6-1 (2018).

[4] Ind. Code § 22-9.5-6-8 (2018).

[5] Ind. Code § 22-9.5-6-12(a) (2018).

[6] Ind. Code § 22-9.5-2-2 (2018) (emphasis added).

[7] State, Ind. Civil Rights Comm’n v. Indianapolis Newspapers, Inc., 716 N.E.2d 943, 946 (Ind. 1999).

[8] Department of Housing and Urban Development, Fair Housing Assistance Program (FHAP) Agencies, U.S. Dept. of Housing & Urb. Dev. (last visited Mar. 20, 2018), available at https://www.hud.gov/program_offices/fair_housing_equal_opp/partners/FHAP/agencies#IN.

[9] 738 N.E.2d 1044, 1048 (Ind. 2000).

[10] Ind. Civil Rights Comm’n v. Alder, 714 N.E.2d 632, 636 (Ind. 1999).

[11] “Aggrieved person includes any person who–(1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur.” 42 USC § 3602 (2018). Compare, Ind. Code § 22-9.5-2-2 (2018).

[12] 409 U.S. 205, 209 (1972).

[13] Id. at 208.

[14] Id. at 209.

[15] 441 U.S. 91, 104 (1979).

[16] Id. at 103, n.9.

[17] 455 U.S. 363, 373 (1982).

[18] Id. at 373 (internal citations and quotation marks omitted).

[19] Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 176 (2011).

[20] Id. at 176. The “zone of interests,” as defined by the Court, assesses “if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id. at 178. In the context of Title VII, the Court found that the term “aggrieved person” includes any plaintiff “with an interest arguably sought to be protected by the statutes[.]” Id. at 171 (internal citations and quotation marks omitted). Arguably, an individual who brings a Fair Housing complaint and is not in a protected class still meets the zone if interests test if the injury pertains to a loss of equality in housing, and accordingly, even if the zone of interests test is implicated in Trafficante, the analysis of this article would remain unchanged. Id. at 178.

[21] Id.

[22] 929 F.2d 1183 (7th Cir. 1991).

[23] Id.

[24] Id. at 1188.

[25] Id. at 1189.

[26] Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979).

[27] 504 U.S. 555, 560-61 (1992).

[28] Id.

[29] Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972).

[30] Id. at 210.

[31] Id.

[32] 455 U.S. 363, 364 (1982).

[33] 441 U.S. 91 (1979).

[34] Id. at 114.

[35] Gorski v. Troy, 929 F.2d 1183 (7th Cir. 1991).

[36] Ind. Code § 22-9-1-2 (2018).

[37] Rev. Dr. Martin Luther King, Jr., Letter from a Birmingham Jail, U. Pa. (Apr. 16, 1963), available at https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html.