DRAFT FOR ATTORNEY REVIEW — NOT FINAL

§ 290

Citation
§ 290
Parent Document
Francis v. Kings Park Manor, Inc., 992 F.3d 67 (2021)
Effective Date
2021-03-25
Original Source
https://www.courtlistener.com/opinion/4867798/francis-v-kings-park-manor-inc/ ↗

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issues. Mandala addressed whether the plaintiffs in that case had adequately
pleaded a claim under Title VII. Here, by contrast, the panel’s opinion held, for the
first time since the FHA was enacted over fifty years before, that a plaintiff may
hold his landlord liable under the FHA based on the conduct of another tenant.
That decision dramatically expanded the scope of the FHA and effectively
established a new cause of action under federal law. Unlike the pleading issue in
Mandala, this case “raise[s] issues of important systematic consequences for the
development of the law and the administration of justice,” Watson v. Geren, 587 F.3d
156, 160 (2d Cir. 2009) (per curiam) (en banc), and there is no inconsistency in the
Court’s treatment of the two cases.
       30  Francis’s attempt to analogize the FHA to Title IX, 20 U.S.C. § 1681 et seq.,
ignores the substantial textual differences between the two statutes. While Section
3604(b) of the FHA simply prohibits committing discrimination, Title IX also
prohibits permitting discrimination. Instead of focusing on the intent of the actor, as
the FHA does, see 42 U.S.C. § 3604(b) (making it unlawful to “discriminate . . .
because of” a protected characteristic), the language of Title IX evinces a concern
for consequences, see 20 U.S.C. § 1681(a) (prohibiting a student from being
“excluded from participation in,” “denied the benefits of,” or “subjected to
discrimination under any education program or activity”). Accordingly, Title IX is
best read as requiring a lesser showing of intent for liability than does Section
3604(b) of the FHA. See, e.g., Davis, 526 U.S. at 649 (holding that defendant board of
education could be held liable if plaintiff could “show that the Board ‘subjected’
[plaintiff] to discrimination by failing to respond” to complaints of harassment
(alteration omitted and emphasis added)).