Q: I’m an African-American and a tenant at our small apartment complex. I believe my landlord has discriminated against me in several ways, including giving only me a rent hike (yet many other tenants paid the same rent for the same kind of unit), and refusing to upgrade my kitchen when he refurbished all of the other units on this floor. I want to pursue this, but I am afraid that if I lose, I’ll have to pay the landlord’s court costs, which I cannot afford. Is there any way I can check out my rights without this risk? –Luther L.
A: Lots of people assume that when someone loses a lawsuit, he or she automatically gets stuck with the winner’s attorney fees and costs. Not so. Losers pay the winner’s fees and costs only in two kinds of situations:
- When the lawsuit is over the meaning or implementation of a contract that specifies "loser pays." Many leases have such clauses, and many write the clause one-way, specifying that a victorious landlord will collect from a losing tenant, but a winning tenant will not have the same right. In many states, such "one way" clauses will be read to be "two way" by law.
- When the statute that the plaintiff uses as a basis for his or her lawsuit gives the judge the discretion to award fees and costs to the "prevailing party." In theory, this means that not only can a winning plaintiff recover fees and costs from a losing defendant, but a winning defendant can do the same.
Now let’s look at your situation. First, the quickest and easiest way to begin your case is to file a complaint with the Department of Housing and Urban Development (HUD), which you can do online. They will evaluate the circumstances and, if they decide to go forward, will investigate and possibly attempt a conciliation, or settlement, between you and the landlord. If that’s not possible, they can also take the matter to court. If you wanted to take over with counsel of your choice, you could ask for permission to take the case over (and you could also go right to a private lawyer, bypassing HUD altogether).
Suppose you hire your own lawyer and proceed with a discrimination claim, and suppose you lose. Can you expect the court to make you pay the landlord’s fees and costs? According to the United States Supreme Court, you’ll pay only if the judge were to decide that your lawsuit was unreasonable, frivolous, meritless or vexatious (Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978)). The reason for this high standard is the Court’s unwillingness to chill the exercise of rights under anti-discrimination laws — tenants who thought that they would always pay the landlord’s costs would hesitate to bring such lawsuits, even when they had a good case. As a matter of public policy, we want to encourage plaintiffs to bring meritorious cases, and will not saddle plaintiffs with punishing fees and costs unless there was really no good reason for their lawsuit in the first place.
Such a rule is cold comfort to a landlord who successfully defends a discrimination lawsuit that a judge finds had some good reason to be brought. Landlords who have adequate insurance will find their carrier bearing most of the cost, though the deductible will fall to them.
Discrimination cases are not for the do-it-yourselfers (that’s one good reason to work with HUD, who will not charge you even if it does not proceed with your case). If you consult with an experienced fair housing attorney, that lawyer should be able to analyze your claims and evidence and tell you whether you have a plausible case, or are on the edge of the frivolous, vexatious or meritless. The closer you are to that line, the less that lawyer will be willing to take the case, and the more you should consider dropping it.
Q: The staff at our apartment complex has been asked to come up with ideas that will build community among our residents. One of us suggested a rose bouquet giveaway on Mother’s Day as a way to honor the moms who rent at our property. Our supervisor nixed the idea, fearing that we would be risking a sex discrimination lawsuit (from male tenants) if we did so. It seems to me that he’s being overly cautious — but is he? –Rafael S.
A: In your situation, you’re proposing that only moms will receive the gift of a bouquet. Giving gifts to one sex and not the other can be a form of discrimination. A "ladies’ night" at the ball game or local bar, with reduced admission, might look like discrimination to some courts. Cases like these sometimes come down to how valuable the gift is and why it’s given to only one gender. For example, a California court recently held that it wasn’t discriminatory for the California Angels to give a free tote bag to moms who attended a game on Mother’s Day, partly because those moms paid the same ticket price as everyone else to attend the game; the tote bag was just an inexpensive gift. But you can see how it might be different if, for example, a hardware store gave every dad who entered on Father’s Day a gift certificate for a discount on power tools. In this situation, the "gift" has a monetary value; plenty of women might feel that this is unfair; and presuming that men but not women use power tools is based on gender stereotypes.
Now, let’s consider the practical aspects of your plan. How are you going to differentiate among the women at your complex? Because there’s no easy way to know who is and isn’t a mom, you’d be well served to offer bouquets to any woman over, say, the age of 18, who claims that she qualifies for one. And if a male tenant objects, take the high road and hand over the flowers — it’s a whole lot cheaper than answering a summons and complaint in a lawsuit! Perhaps the better solution — especially if your goal is to build community — is to host a "family day," open to everyone, with games and entertainment. This will bring people together and let them get to know each other; it will also show your appreciation and support for all of your tenants.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.
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