REJECTED JOB APPLICANT’S CLAIM FOR RETALIATION UNDER FAIR HOUSING ACT CAN PROCEED

In a recent case that should give pause to employers,  the Sixth Circuit Court of Appeals, in Linkletter v. Western & Southern Financial Group, Inc., No. 16-3265, 2017 U.S. App. LEXIS 5130 (6th Cir. Mar. 23, 2017), reversed the trial court’s dismissal and allowed a plaintiff’s suit to proceed whose job offer was rescinded when the potential employer discovered that two years prior to the job offer, she had signed a petition in support of a women’s shelter, with the which the company had had a lengthy property dispute. The ruling was based on the appeals court’s determination that the company may have retaliated against the plaintiff for her support of the shelter’s residents in violation of both the federal Fair Housing Act and the Ohio Civil Rights Act.

In 2012, Gayle Linkletter signed a petition in support of the Anna Louise Inn, a women’s shelter located near Western & Southern’s offices in the Lytle Park area of Cincinnati. At that time, the company was involved in an ongoing real estate dispute with the shelter over the shelter’s location in the neighborhood and the company’s alleged attempts to force the shelter to move. The shelter eventually sued the company under the federal Fair Housing Act and the dispute ended when Western & Southern agreed to purchase the property and removed the shelter from the neighborhood.

Linkletter had worked at Western & Southern from 1997 to 2006 when the employment relationship ended amicably. In May 2014, she applied for a job at the company and, after a series of interviews, was hired. In September 2014, just prior to her beginning work, a senior vice president in the company’s legal department contacted Linkletter and told her that the company was rescinding the employment offer because it discovered she had signed the petition, which Western & Southern stated was contrary to its position. After the job offer was rescinded, Linkletter sued the company, and the employee that had rescinded the job offer, for retaliation under the Fair Housing Act, particularly 42 U.S.C. § 3617, and the Ohio Civil Rights Act.

She claimed that the rescission of her contract was in retaliation to her supporting the housing rights of the shelter’s female residents in violation of § 3617 of the Fair Housing Act. That section states, in part: “it shall be unlawful to . . . interfere with any person . . . on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.” (emphasis added). Specifically, she claimed that her petition-signing “encouraged” the residents of the women’s shelter in their rights granted by § 3604, involving discrimination in the rental or sale of housing. The district court dismissed the lawsuit for failure to state a claim because it determined, among other things, that she did not “aid or encourage” the shelter’s residents as contemplated by the statute and that the housing rights under § 3604 were not at issue. It also dismissed the claims under the Ohio Civil Rights Act for essentially the same reasons because the language of the Ohio act is virtually the same as the federal one. Linkletter appealed both rulings.

The Sixth Circuit began its analysis by stating that because the statute is a remedial one, its terms should be interpreted broadly. It noted that prior rulings had held that the rescission of an employment “contract” can qualify as “interference” under the statute because it “hampers” an employment process. Even though there does not appear to be any allegation that Linkletter and Western & Southern had entered into an employment contract, the court nonetheless extended the concept to a job offer.

The court then turned its attention to the “aided or encouraged” prong of the Act. It stated that while Linkletter’s signing of the petition in itself may have seemed innocuous, taking into account the timing and the language of the petition, it was clear that it existed to encourage the women to remain in the shelter in opposition to Western & Southern’s alleged discrimination. As such, it determined that the “aided or encouraged” prong was satisfied.

Finally, the court had to analyze whether the required nexus between her actions and the rights protected by § 3604 was present. Western & Southern argued that even if it fired Linkletter for signing the petition, its motivation in the underlying lawsuit was economic, not discriminatory. While the court acknowledged that past Sixth Circuit cases required a showing of discriminatory animus for § 3617 claims, that requirement only forces the plaintiff to show “some evidence” of discriminatory effect or intent on the defendant’s part to survive summary judgment and that a plaintiff can show either direct proof of discriminatory animus or proof of disparate impact or effect. It noted that Western & Southern’s alleged actions only affected one class of people – women, and that the existence of other non-discriminatory motivations “does not protect the defendants from housing discrimination claims when their actions had a clear discriminatory effect.” Therefore, taking the allegations in the complaint in the light most favorable to Linkletter, it determined that a trial court could conclude that the company’s efforts interfered with housing rights under § 3604 and that Linkletter encouraged those same rights under § 3617 by signing the petition. As such, it reversed the trial court’s dismissal of the § 3617 claim. Because the court determined that the Ohio Civil Rights Act mirrored the language of the Fair Housing Act, it similarly reversed the lower court’s dismissal of that claim as well.

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