Seventh Circuit Becomes First Federal Appellate Court to Rule That Discrimination Based on Sexual Orientation Violates Fair Housing Act

By Shane Stahl • August 27, 2018 • 6:38 pm

A three-judge panel for the Seventh Circuit Court of Appeals ruled unanimously today that an Illinois nursing home can be held liable for the harassment and discrimination experienced by a tenant, allowing her to move forward with her case and building further momentum for the growing legal consensus that federal laws prohibiting discrimination based on “sex” also cover discrimination based on sexual orientation and gender identity.

Marsha Wetzel, an elderly woman, moved into the Glen St. Andrew Nursing Home after losing her partner of more than 30 years. After disclosing to fellow tenants and staff that she had been in a relationship with a woman, including raising a child with her, tenants immediately began harassing her both verbally and physically. Although Marsha repeatedly complained to the staff about what was going on, they ignored her, and retaliated against her for lodging the complaint.

Following an extended period of time where the issue was not addressed, Marsha contacted our partners at Lambda Legal for help, and in July 2016, they filed suit in U.S. District Court in Illinois. In January 2017, the court dismissed the case without addressing Marsha’s discrimination complaints, leading to the Seventh Circuit appeal.

Today’s unanimous decision reverses the earlier dismissal and adds fuel to the movement for LGBTQ-inclusive nondiscrimination protections. The panel determined that a 2017 en banc ruling from the 7th Circuit in Hively v. Ivy Tech Community College, which found that the “sex” discrimination prohibition in Title VII of the Civil Rights Act also covers employment discrimination based on sexual orientation, applies equally to the Fair Housing Act, which similarly prohibits discrimination based on sex. In April 2017, a federal judge became the first to ever find that discrimination based on sexual orientation and gender identity violates the Fair Housing Act in the Lambda Legal case Smith v. Avanti, in which a landlord in Colorado refused to rent to a same-sex couple, but today’s decision is the first federal appellate ruling to agree. Today’s decision also rejected the notion that the facility could not be liable for actions of tenants. It held that there could be liability if the facility had knowledge of the harassment and was deliberately indifferent to it (and perhaps could be liable if it should have known about it and failed to take action within its power to correct it). The court further held that Wetzel could proceed on her claim that the facility improperly retaliated against her after she complained about the harassment and assaults.

“Our elders should not have to worry about being themselves in their own homes – whether that’s in a private residence or an assisted living community. The ability to be safe, secure, and authentic at home is something that matters to all of us,” said Masen Davis, CEO of Freedom for All Americans. “Today’s decision affirms that much-needed protections from housing discrimination should be available to everyone, no matter who you love. The Seventh Circuit has done the right thing by sending a message of fairness by upholding Ms. Wetzel’s right to equal and safe housing.”

LGBTQ people have seen a wave of recent court victories holding that federal laws prohibiting sex discrimination also cover sexual orientation and gender identity. Earlier this year the Second Circuit Court of Appeals, sitting en banc, ruling in Zarda v. Altitude Express that plaintiff Don Zarda was improperly terminated after disclosing his sexual orientation to a female client, and the 7th Circuit Court of Appeals ruled the same way in 2017’s Hively v. Ivy Tech Community College. Just this year, the 6th Circuit Court of Appeals determined in EEOC v. R.G. & G.R. Funeral Homes that a funeral home owner illegally fired a transgender employee, Aimee Stephens, after she indicated she would begin to transition on the job. Though both these cases dealt with employment claims, not housing, they show a growing trend of the judiciary upholding the freedoms and dignity of LGBTQ people.

Congratulations to Marsha Wetzel and our friends and partners at Lambda Legal on this major victory. For more information on cases pending before state and federal courts, visit Freedom for All Americans’ litigation tracker at https://www.freedomforallamericans.org/litigation-tracker/.


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