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 agree with Judge Ikuta that under Supreme Court
precedent, a plaintiff must prove adverse differential
treatment to establish discrimination. See, e.g., Muldrow v.
City of St. Louis, 601 U.S. 346, 354 (“The words
‘discriminate against,’ we have explained, refer to
‘differences in treatment that injure’ employees.” (quoting
Bostock v. Clayton Cnty., 590 U.S. 644, 681 (2020))); cf.
Gamble v. City of Escondido, 104 F.3d 300, 304 (9th Cir.
1997) (“We apply Title VII discrimination analysis in
examining [FHA] discrimination claims.”). I also agree that,
because adversity is part of discriminatory treatment, a
plaintiff should be required to show that facially differential
treatment was adverse as part of its prima-facie case. See
Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale,
46 F.4th 1268, 1274–79 (11th Cir. 2022); Prima Facie Case,
Black’s Law Dictionary (12th ed. 2024) (a prima facie case
requires enough evidence to “rule in the party’s favor”). But
for the reasons described in the majority opinion, I cannot
read Community House, Inc. v. City of Boise, 490 F.3d 1041
(9th Cir. 2007), as requiring a prima facie showing of
unfavorable treatment. See Maj. Op. at 21. That is where I
respectfully disagree with Judge Ikuta.
    That leaves the question of how to handle this tension
between our precedent and Supreme Court precedent. The
Supreme Court had long espoused an adversity requirement
for facial discrimination when Community House was
decided. See Muldrow, 601 U.S. at 354 (citing Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998), for
the proposition that discrimination implies disadvantageous
treatment); Bostock, 590 U.S. at 657 (same, citing
Burlington N. & Santa Fe R. Co. v. White, 548 U.S. 53, 59
          THE OHIO HOUSE, LLC V. CITY OF COSTA MESA          67

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