More Recent Dismissals of Human Rights Act Cases Against Associations
Last December we examined an Illinois Human Rights Commission opinion affirming dismissal of a condominium smoke infiltration case. This month, we entertain three more recent condominium cases before the Illinois Human Rights Commission, all of which affirm the dismissal of the cases by the Illinois Department of Human Rights for lack of substantial evidence.
The Illinois Human Rights Act, 775 ILCS 5/1-101, et seq., breaks actionable violations into separate articles of the Act. Articles 2, 4, 5, 5A, and 6 of the Act address, respectively, employment, financial credit, public accommodations, schools, and other civil rights violations. Article 3 of the Act addresses civil rights violations related to housing.Article 7A of the Act provides procedural rules relating to all violations except those under Article 3. Article 7B has separate procedural rules for housing violations.
Dismissal Process for Human Rights Charges
A petitioner files his or her charges with the Illinois Department of Human Rights. Department employees investigate the charges. Pursuant to §7B-102(D) of the Human Rights Act, Department employees must prepare a report for each of their investigations to the Department’s Director. If the Director determines that no substantial evidence exists to support the charge and vote it to complaint status, then the Director may dismiss the charge, as happened in each of the cases we consider here. The complainant may then appeal the dismissal to the Human Rights Commission, as happened here.
Article 7B is silent as to any standards regarding what constitutes substantial evidence in the Director’s determination whether to proceed with a complaint. However, Article 7A, which applies to violations other than housing, provides some guidelines as to what constitutes substantial evidence. Article 7A has a similar process for the Director to receive a report and determine, based on substantial evidence, whether to proceed to complaint and dismiss the charge.
The determination of substantial evidence is limited to determining the need for further consideration of the charge pursuant to this Act and includes, but is not limited to, findings of fact and conclusions, as well as the reasons for the determinations on all material issues. Substantial evidence is evidence which a reasonable mind accepts as sufficient to support a particular conclusion and which consists of more than a mere scintilla but may be somewhat less than a preponderance. 775 ILCS 5/7A-102(D)(2).
The initial burden of proof lies with the petitioner but shifts throughout the process.
Once the Petitioner has established a prima facie case of discrimination, then the burden shifts to the land owner to rebut the presumption of discrimination and articulate a non-discriminatory reason for its’ action. . . . Petitioner must then show that the landowners articulated reason for its’ action was not its true reason and is a pretext for unlawful discrimination. . . . The Petitioner bears the burden of not only proving that the landowner’s articulation is false, but also a causal chain in which a prohibited factor plays a dispositive role. [Citations omitted.] In re Fabiyi, Charge No. 2016CH0478, 2019 WL 2024369, *2 (IHRC Apr. 17, 2019), citing Turner v. Human Rights Commission, 177 Ill.App.3d 476, 532 N.E.2d 392, 126 Ill.Dec. 707 (1st Dist. 1988).
Three Recent Condominium-Human Rights Decisions
In re Miller. The Illinois Human Rights Commission affirmed dismissal of charges brought by a tenant against the unit owner who rented his unit to her, the condominium association, and the property management company. In re Miller, Charge No. 2013CH2394, 2019 WL 1527687 (IHRC Mar. 27, 2019). The tenant accused the defendants of racial discrimination in violation of §3-102(B) of the Human Rights Act. Three months after signing her lease for the unit, the tenant complained to the unit owner that other residents in the association were harassing her because she was black. The unit owner told the tenant that she needed to report this situation to the property manager who was responsible for resolving the situation. Two employees of the property manager told the tenant that the unit owner needed to take care of the situation. The unit owner agreed to terminate the lease and returned the security deposit.
Under §3-102(B) of the Human Rights Act, the evidence must show that (1) the petitioner is a member of a protected class; (2) the petitioner was in good standing with the terms and conditions of the defendants; (3) the defendants subjected her to discriminatory terms and conditions; and (4) the defendants treated a similarly situated non-black renter more favorably under similar circumstances. 2019 WL 1527687 at *1, citing Turner v. Human Rights Commission, 177 Ill.App.3d 476, 487 (1st Dist. 1988). On appeal, the Commission found that the petitioner established the first three elements of the prima facie case but failed to establish the fourth element. She could not show any instances of a non-black tenant being treated more favorably under similar circumstances. Additionally, the unit owner established a nondiscriminatory reason for his actions because he told the petitioner to contact the manager and the police if she felt threatened. He also conducted his own inquiry with the manager and was told that many residents were complaining about the petitioner. He also talked to the petitioner’s son and when asked to break the lease without penalty, he complied. 2019 WL 1527687 at *2. Regarding the association and management company, the petitioner similarly failed to satisfy the fourth element of the prima faciecase. Also, these defendants showed a nondiscriminatory response, namely, that they had a policy of requiring that all tenants’ complaints be presented by the unit owner and applied this policy without regard to race. Id.
In re Fabiyi. On April 17, 2019, the Human Rights Commission affirmed dismissal of charges brought by a tenant against two associations and management companies based on race (black), marital status (single), and familial status (children under 18). Fabiyi, supra, 2019 WL 2024369 at *1. The charges were all related to violation notices that the tenant received, apparently many or all of them, because of the conduct of her children on the condominium property.
Section 7B-102(A) of the Human Rights Act has a one-year statute of limitations period in which to file a charge after the discriminatory conduct occurred or terminated. This limitations period is jurisdictional. The first three of the tenant’s counts in her charge were dismissed for lack of jurisdiction because more than one year had passed since the petitioner’s receipt of the violation notices. The commission affirmed dismissal of these three counts on jurisdictional grounds.
The remaining six counts of the petitioner’s charges were brought under §3-102(B) of the Act, and the commission, as in the Miller appeal, quoted Turner for the prima facie case. 2019 WL 2024369 at *2. The commission affirmed dismissal of the six counts, under all three bases of discrimination (race, marital status, and familial status) for lack of substantial evidence based on the Department of Human Rights investigation. The petitioner was the only person in the condominium building with children so she could not show others in similar circumstances being treated differently. The condominium instruments were not changed during her tenancy. The petitioner could not show others being treated differently under the condominium instruments. Her landlord, the unit owner, who was also black, refused to challenge the violation notices or to appear on the petitioner’s behalf at the violations meetings as required by the association. Id.
In re Pamela Wolfe. The Human Rights Commission affirmed dismissal of charges brought by a person charging that the condominium association failed to make an accommodation for an unspecified mental disability that required an emotional support dog. In re Wolfe, Charge No. 2016CH2210, 2019 WL 2024398, *1 (IHRC Apr. 24, 2019). In 2011, the petitioner obtained reasonable accommodations for an emotional support dog in a consent decree with the association that provided restrictions as to where she can walk the dog. The decree expired after two years. The opinion is unclear, but it appears that the parties continued to honor the decree except that the petitioner began walking her dog on the common elements outside the areas provided for in the decree. The association issued a warning notice telling her that she can walk her dog only in the areas outlined in the consent decree.
The petitioner’s charge was based on violation of §3-102.1(C)(2) of the Human Rights Act:
In order to establish a prima facie case of failure to reasonably accommodate a disability, the Petitioner must prove that 1) she is disabled as defined by the Act; 2) the Association knew or should have known that the Petitioner was a disabled person; 3) the Petitioner requested a reasonable accommodation in the Association’s rules, policies, practices, procedures, or services; 4) the Petitioner’s request was reasonable and necessary; and 5) the Association denied her request for a reasonable accommodation. Id., citing In re Bailey, Charge No. 2010SH0465, 2010 WL 6499718, *3 (IHRC July 14, 2010).
Here, the petitioner, Ms. Wolfe, failed to establish that she made a request for an accommodation and that the association refused her request. Her charge was based on receipt of the warning notice, not denial of a request, and therefore the petitioner failed to show a prima faciecase.
As noted last December, it appears condominium unit owners or tenants are increasingly trying to use the Illinois Human Rights Act as a basis to challenge associations and property managers. Based on these recent decisions, the petitioners do not appear to be meeting much success yet.
For more information about condominium law, see CONDOMINIUM LAW (ILLINOIS) — 2016 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.