The Ohio House, LLC v. City of Costa Mesa, 135 F.4th 645 (2024)

Citation: The Ohio House, LLC v. City of Costa Mesa, 135 F.4th 645 (2024)
Parent Document: The Ohio House, LLC v. City of Costa Mesa, 135 F.4th 645 (2024)
Jurisdiction: United States (federal)
Effective Date: 2024-12-04
Original Source: https://www.courtlistener.com/opinion/10287865/the-ohio-house-llc-v-city-of-c... ↗

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I generally concur in the majority opinion, but would
hold that in order to establish a facial disparate treatment
claim under the Fair Housing Act (FHA) and Fair
Employment and Housing Act (FEHA), a plaintiff must
show that the protected group suffered unfavorable
treatment compared to the unprotected group, not merely
show that a protected group has been treated differently than
an unprotected group. See Maj. Op. 21. Because Ohio
House failed to make such a showing, it did not establish a
prima facie case of disparate treatment.
    It has long been the rule that to prove disparate treatment,
the plaintiff must show that the defendant intended to have
an adverse effect on the protected group. See Ricci v.
DeStefano, 557 U.S. 557, 577 (2009) (stating standard under
Title VII); see also Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80 (1998) (“The critical issue, Title VII’s
text indicates, is whether members of one sex are exposed to
disadvantageous terms or conditions of employment . . . .”
(emphasis added) (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 25 (1993) (Ginsburg, J., concurring))); Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (“No
one doubts that the term ‘discriminate against’ [in Title VII]
refers to distinctions or differences in treatment that injure
protected individuals.” (emphasis added)). Conc. 66–67.
The Supreme Court has recently confirmed this longstanding
rule, stating: “The words ‘discriminate against,’ we have
explained, refer to ‘differences in treatment that injure’
employees.” Muldrow v. City of St. Louis, 601 U.S. 346, 354
(2024) (quoting Bostock v. Clayton Cnty., 590 U.S. 644, 681
(2020)).
          THE OHIO HOUSE, LLC V. CITY OF COSTA MESA          63

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