The short answer is No. A tenant seeking and advertising for a roommate is not covered by the Fair Housing Act (FHA). The long answer is more complicated. It involves a 9th Circuit Appellate case that distinguishes the roommate situation from the FHA. For those of you that want the legal explanation, read on.
“Dwellings” As Defined By the Fair Housing Act
The FHA is very broad-based legislation that prohibits discrimination in housing on the basis of “race, color, religion, sex, familial status, or national origin” in the “sale or rental of a dwelling.” 42 U.S.C. § 3604(b) . Dwelling is the operative word, according to the 9th Circuit decision, Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216 (9th Cir. 2012).
The FHA does not interfere with relationships inside the home.
The FHA defines “dwelling” 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.” Id. § 3602(b). A dwelling is thus a living unit designed or intended for occupancy by a family, meaning that it ordinarily has the elements generally associated with a family residence: sleeping spaces, bathroom and kitchen facilities, and common areas, such as living rooms, dens and hallways.
The Court concluded that there is no indication that Congress intended to interfere with personal relationships inside the home. Congress wanted to address the problem of landlords discriminating in the sale and rental of housing, which deprived protected classes of housing opportunities. But a business transaction between a tenant and landlord is quite different from an arrangement between two people sharing the same living space. According to the Court, Congress did not mean for the FHA to apply to people sharing the same living spacc. Consider, for example, the FHA's prohibition against sex discrimination. Could Congress, in the 1960s, really have meant that women must accept men as roommates? Telling women they may not lawfully exclude men from the list of acceptable roommates would be controversial today; it would have been scandalous in the 1960s. By extension, “Female seeking female roommate” would be allowable under this case.
There are also Constitutional concerns with applying the Fair Housing Act to roommate situations. The Court concluded that the roommate relationship is so personal and intimate that potential government interference with that relationship raises significant Constitution concerns, and is unwarranted. The Court reasoned that the roommate relationship falls under the ambit of the fundamental right of intimate association, which, necessarily, also includes the right not to associate. The Court extended to roommate selection the same level of Constitutional protection afforded to “marriage, child-bearing, child rearing and cohabitation with relatives.” Our roommates, the Court reasoned, have unique access to every aspect of our personal home lives, and, we, likewise, have unfettered access to every aspect of theirs. We have a right, therefore, to select our roommates based upon our personal beliefs and opinions regarding things that may be offensive, dangerous, annoying, or otherwise incompatible with our own lifestyles. Extending the FHA anti-discrimination provisions to apply to the roommate relationship would permit the government to intrude into our homes, which are “entitled to special protection as the center of the private lives of our people.” Accordingly, it is perfectly reasonable for a woman to seek only female roommates.
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