Nicole DUSSAULT v. RRE COACH LANTERN HOLDINGS, LLC, et al.
Docket No. Cum-11-591.
Supreme Judicial Court of Maine.
Argued: May 8, 2012. Decided: Jan. 23, 2014.
2014 ME 8
The portion of the judgment awarding money damages in the amount of $145,223.08 to Darling‘s is vacated. Remanded to the Superior Court for a determination of damages. The judgment is affirmed in all other respects.
Margaret Coughlin LePage, Esq., and Katharine I. Rand, Esq. (orally), Pierce Atwood, LLP, Portland, for appellees RRE Coach Lantern Holdings, LLC, and Resource Real Estate Management, Inc.
John P. Gause, Esq., Maine Human Rights Commission, Augusta, for amicus curiae Maine Human Rights Commission.
Justin W. Andrus, Esq., and Neil S. Shankman, Esq., Shankman & Associates, Topsham, for amicus curiae Maine Apartment Owners and Managers Association.
Mark C. Joyce, Esq., Disability Rights Center of Maine, Augusta, for amicus curiae Disability Rights Center of Maine.
John J. McDermott, Esq., National Apartment Association, Arlington, Virginia, and David J. Van Baars, Esq., Windham, for amici curiae National Apartment Association and Maine Apartment Association.
J. Damian Ortiz, Esq., Patrick Bushell, Law Student, and Ian Friel, Law Student, The John Marshall Law School Fair Housing Center & Clinic, Chicago, Illinois, and David A. Lourie, Esq., Portland, for amici curiae The John Marshall Law School Fair Housing Center & Clinic.
Robert Edmond Mittel, Esq., MittelAsen LLC, and Danielle Pelfrey Duryea, Esq., James P. Dowden, Esq., and Thomas R. Sutcliffe, Esq., Ropes & Gray LLP, Boston, Massachusetts, for amici curiae National Center for Medical Legal Partnership and Lawyers’ Committee for Civil Rights and Economic Justice.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, SILVER, and MEAD, JJ.
Concurrence: ALEXANDER, J.
Dissent: LEVY, GORMAN, and JABAR, JJ.
SILVER, J.
[¶1] Nicole Dussault appeals from a summary judgment entered in the Superior Court (Cumberland County, Cole, J.) in favor of RRE Coach Lantern Holdings, LLC, and Resource Real Estate Management, Inc. (collectively, Coach Lantern). Dussault claims that Coach Lantern‘s policy of not including in its standard lease a tenancy addendum that binds the landlord to the requirements of the federal government‘s Section 8 Housing Choice Voucher Program constitutes unlawful discrimination on the basis of her status as a public assistance recipient in violation of
I. FACTUAL AND LEGAL BACKGROUND
[¶2] The following facts are drawn from the summary judgment record and are not disputed by the parties. Nicole
[¶3] Dussault sought housing in Scarborough in order to maintain her son‘s placement in the school system there. Through Craigslist, Dussault found a listing for a three-bedroom apartment in the Coach Lantern Apartments in Scarborough with an advertised rent that was within the voucher program limits. The apartment is owned by RRE Coach Lantern Holdings, LLC, of which Resource Real Estate Management, Inc., is an affiliate.
[¶4] On August 5, 2008, Dussault called Coach Lantern to inquire about renting the apartment. Dussault alleges that after she disclosed that she would be using a voucher to pay the rent, she was told that Coach Lantern does not accept vouchers. She alleges that her caseworker at Avesta Housing was told the same thing by Coach Lantern when the caseworker inquired on Dussault‘s behalf. Approximately two weeks later Dussault again called Coach Lantern to inquire about the apartment, but she did not mention that she would be using a voucher. After arranging an appointment and being shown the apartment, Dussault was given a rental application. A Coach Lantern employee encouraged her to fill it out. Two days later a Coach Lantern representative called Dussault to ask if she planned to submit the application. Dussault did submit an application, and on it she disclosed that she would be using a voucher. Dussault qualified for an apartment and “was accepted.”
[¶5] Dussault‘s Avesta caseworker sent Coach Lantern a “landlord packet” indicating that in order for Dussault to be able to use her voucher, Coach Lantern would have to include a HUD tenancy addendum in her lease. Federal regulations require any landlord that accepts a housing voucher to include the tenancy addendum in its lease.
[¶6] Coach Lantern, through its attorney, contacted Avesta Housing by letter dated September 3, 2008, to state its “problem with the inclusion of a Tenancy Addendum with [the standard] lease” and to see whether it could rent to Dussault without including the addendum in her lease. The letter stated, “I wish to make it absolutely clear that my client is not refusing to rent to [Dussault] primarily because she is a recipient of public assistance,” but because “[t]he addendum includes more restrictive rights and obligations on the landlord th[a]n the standard lease that they use, and my client does not wish to be bound by these more restrictive obligations.” Avesta Housing replied by email dated September 12, 2008, that Coach Lantern could not rent to Dussault without including the addendum.
[¶7] Coach Lantern is unwilling to include the addendum in any of its leases. Specifically, Coach Lantern finds it unacceptable that pursuant to the addendum the landlord agrees (1) to maintain the unit and premises in accordance with the housing quality standards set by the Housing Authority; (2) not to raise the rent during the initial term of the lease; (3) to charge a “reasonable” rent, as determined by the Housing Authority in accordance with HUD requirements, during the lease term; (4) not to evict the tenant or terminate the lease solely because the Housing Authority has failed to pay the subsidized portion of the rent; (5) not to evict a tenant who is a victim of domestic violence based on acts of domestic violence committed against her, unless the landlord can demonstrate an actual and imminent threat to other tenants or employees; (6) to open the premises to inspection by a Housing Authority inspector at the beginning of the lease, upon any complaint by the tenant, or after the landlord has remedied a problem identified by an inspector in a prior inspection; and (7) to notify the Housing Authority at least sixty days prior to any rent increase.
[¶8] Dussault was unable to afford the apartment without using the voucher. Because she could not use the voucher unless Coach Lantern included the addendum in her lease, she did not rent the apartment. She could not find housing in Scarborough and ultimately moved to South Portland. Dussault does not intend to seek housing at any Coach Lantern property in the future.
II. PROCEDURAL BACKGROUND
[¶9] In November 2008, Dussault filed a complaint with the Maine Human Rights Commission (Commission), alleging that Coach Lantern‘s policy of refusing to include the HUD tenancy addendum in her lease, and therefore its refusal to participate in the voucher program, constitutes discrimination against Dussault on the basis of her status as a public assistance recipient in violation of the MHRA. After an investigation, the Commission voted unanimously at a hearing on April 13, 2009, that there were reasonable grounds to believe that Coach Lantern discriminated against Dussault because of her status as a recipient of public assistance.
[¶10] Dussault then filed a complaint in the Superior Court seeking declaratory and injunctive relief and damages. Coach Lantern filed a motion for summary judg-
[¶11] Dussault timely appealed.
III. DISCUSSION
A. Standard of Review
[¶12] We review the court‘s interpretation and application of the MHRA de novo. See Russell v. ExpressJet Airlines, Inc., 2011 ME 123, ¶ 16, 32 A.3d 1030. “We review the court‘s ruling on cross-motions for summary judgment de novo....” F.R. Carroll, Inc. v. TD Bank, N.A., 2010 ME 115, ¶ 8, 8 A.3d 646. “Summary judgment is appropriate if the record reflects that there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law.” Id. (quotation marks omitted).
B. The Maine Human Rights Act
[¶13] The MHRA declares that individuals have a civil right to “[t]he opportunity . . . to secure decent housing in accordance with [their] ability to pay, and without discrimination because of race, color, sex, sexual orientation, physical or mental disability, religion, ancestry, national origin or familial status.”
It is unlawful housing discrimination, in violation of this Act . . .
[f]or any person furnishing rental premises or public accommodations to refuse to rent or impose different terms of tenancy to any individual who is a recipient of federal, state or local public assistance, including medical assistance and housing subsidies primarily because of the individual‘s status as recipient....
Nothing in this Act may be construed to prohibit or limit the exercise of the privilege of every person and the agent of any person having the right to sell, rent, lease or manage a housing accommodation to set up and enforce specifications in the selling, renting, leasing or letting or in the furnishings of facilities or services in connection with the facilities that are consistent with business
necessity and are not based on the race, color, sex, sexual orientation, physical or mental disability, religion, country of ancestral origin or familial status of or the receipt of public assistance payments by any prospective or actual purchaser, lessee, tenant or occupant.
[¶14] In construing a statute, we seek to give effect to the Legislature‘s intent. See Eagle Rental, Inc. v. State Tax Assessor, 2013 ME 48, ¶ 11, 65 A.3d 1278. We look beyond the plain language of the statute to other indicia of legislative intent only if the statute is ambiguous. See id.; Fuhrmann v. Staples the Office Superstore E., Inc., 2012 ME 135, ¶ 23, 58 A.3d 1083. The only discrimination that the MHRA prohibits with respect to public assistance recipients is “refus[al] to rent or impos[ition of] different terms of tenancy” based primarily on a person‘s status as a recipient.
[¶15] We previously construed the MHRA‘s prohibition of “unlawful housing discrimination” based on receipt of public assistance in Catir v. Commissioner of the Department of Human Services, 543 A.2d 356, 357-58 (Me. 1988). In Catir, a nursing home that had accepted state and federal Medicaid reimbursement stopped participating in the program and informed residents that it would no longer keep residents who were unable to pay the higher, private rate. Id. at 357. Residents receiving Medicaid sued, seeking a declaration that the nursing home was obligated to accept Medicaid reimbursement. Id. We upheld summary judgment for the nursing home, reasoning that it was not unlawful discrimination for the nursing home to stop participating in the Medicaid program and to require the residents receiving Medicaid to pay the same rate as residents not receiving Medicaid. Id. at 357-58. We concluded that the nursing home had not “refuse[d] to rent or impose[d] different terms of tenancy” on the Medicaid recipients because the record showed that, by refusing to accept the lower Medicaid payment, the nursing home merely “subjected the [Medicaid] recipients to the same terms of tenancy offered to any other individual.” Id. at 357-58 (first and second alterations in original) (quotation marks omitted).
[¶16] Here, as in Catir, the undisputed facts demonstrate that Coach Lantern did not “refuse to rent [to] or impose different terms of tenancy” on Dussault. Rather, Coach Lantern was willing to, and in fact did, offer Dussault the apartment, and was willing to rent to her after learning of her status so long as it could do so without including the tenancy addendum. In essence, Coach Lantern offered to rent the apartment to Dussault on “the same terms of tenancy offered to any other individual.” Id. at 358. A landlord does not violate the MHRA by offering apartments to recipients of public assistance on the same terms as it offers
[¶17] Even if we were convinced that Coach Lantern‘s policy of declining to include the tenancy addendum in Dussault‘s lease constituted a refusal to rent or imposition of different terms of tenancy within the meaning of section 4582, the undisputed facts show that Coach Lantern‘s refusal to include the addendum was not “primarily because of [Dussault‘s] status as recipient,” but rather because Coach Lantern did not wish to bind itself to the terms of the tenancy addendum. The term “status,” although not defined in the MHRA, is commonly defined as “[a] person‘s legal condition, whether personal or proprietary; the sum total of a person‘s legal rights, duties, liabilities, and other legal relations, or any particular group of them separately considered.” Black‘s Law Dictionary 1542 (9th ed. 2009). To the extent that there is any ambiguity in the meaning of “status,” the legislative history of the MHRA makes clear that the statute was meant to proscribe refusals to rent “made not with reference to the tenant‘s personal responsibility and integrity . . . but only on the general misapprehension that a family on public assistance is automatically an undesirable tenant.” L.D. 327, Statement of Fact (107th Legis. 1975).
[¶18] We recognize the MHRA‘s purpose to protect public assistance recipients’ rights to secure decent housing. We will not, however, read into the MHRA a mandate that landlords accept terms of tenancy that are otherwise required only if the landlord chooses to participate in a voluntary federal program. See
[¶19] We are limited by the language that the Legislature has enacted, and may not substitute our policy judgment for that of the Legislature. See Edwards, 783 N.W.2d at 179 (“[T]he issue of ensuring affordable housing availability is an issue for the . . . Legislature or the United States Congress, which have the power to establish policy and enact laws in this area.“). The Legislature has not required landlords to accept Section 8 vouchers. Although the Legislature has considered a bill that would have effectively required landlords to participate in the voucher program, it has not, to date, made this voluntary program mandatory in Maine. See L.D. 685, § 2 (123rd Legis. 2007) (proposing an amendment to the MHRA forbidding discrimination against recipients of public assistance “because of any requirement of such a public assistance program“); Comm. Amend. A to L.D. 685, No. S-162 (123rd Legis. 2007) (removing the language regarding discrimination based on the requirements of public assistance programs from the bill).
C. Summary Judgment
[¶20] In deciding the parties’ cross-motions for summary judgment, the Superior Court ruled in favor of Coach Lantern on each of three different theories of discrimination: direct evidence, disparate treatment, and disparate impact. We address each theory in light of the interpretation of the MHRA that we have now articulated.
1. Direct Evidence
[¶21] Courts have historically addressed claims of direct evidence of discrimination through a “mixed-motive” analysis. See Patten v. Wal-Mart Stores E., Inc., 300 F.3d 21, 25 (1st Cir. 2002). Pursuant to that analysis, a plaintiff must
2. Disparate Treatment
[¶22] When a plaintiff makes a disparate treatment claim at the summary judgment stage, a three-step, burden-shifting test applies. See Daniels v. Narraguagus Bay Health Care Facility, 2012 ME 80, ¶ 14, 45 A.3d 722. First, the plaintiff must establish a prima facie case of discrimination. See id. Second, if the plaintiff has met her burden in the first step, the landlord must present evidence of a legitimate, non-discriminatory reason for the adverse action. See id. ¶ 15. Third, if the landlord meets its burden in the second step, the plaintiff must present evidence that the landlord‘s proffered reason is pretextual or untrue. See id. This analysis addresses the parties’ burdens of production, not persuasion. See St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 521 (1993).
[¶23] Here again, Dussault has failed to establish a prima facie case, because the undisputed facts show that Coach Lantern did not “refuse to rent or impose different terms of tenancy” on Dussault based primarily upon her status as a recipient of public assistance. See Lindsay v. Yates, 578 F.3d 407, 415 (6th Cir. 2009) (requiring the plaintiff in a housing discrimination case to provide prima facie evidence that he or she applied for and was denied a housing accommodation); McDonald v. Coldwell Banker, 543 F.3d 498, 503, 505 (9th Cir. 2008) (same); Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (same); see also Cookson v. Brewer Sch. Dep‘t, 2009 ME 57, ¶ 14, 974 A.2d 276 (discussing the requirement of a prima facie showing of discrimination in the employment context).
3. Disparate Impact
[¶24] We evaluate claims of disparate impact in the employment context using a similar three-step, burden-shifting analysis. See Me. Human Rights Comm‘n v. City of Auburn, 408 A.2d 1253, 1264–65, 1268 (Me. 1979). First, the plaintiff must establish a prima facie case of disparate impact by identifying a facially neutral practice that affects one group more harshly than another. Id. at 1264. Second, if the plaintiff meets her burden in the first step, the defendant must present prima facie evidence that its practice is justified by a business necessity. Id. at 1265. Finally, if the defendant meets its burden in the second step, the plaintiff must present prima facie evidence that the defendant‘s proffered justification is pretextual or that other practices would have a less discriminatory impact. Id. at 1268.
[¶26] Dussault argues that section 4583 incorporates disparate impact liability into the housing discrimination provisions of the MHRA, and that the legislative history of the statute supports this contention. This argument, however, finds no support in the language of section 4583. See Eagle Rental, 2013 ME 48, ¶ 11 (noting that we do not consider legislative history if a statute is unambiguous). Nothing in the language of section 4583 broadens the MHRA‘s protections of recipients of public assistance; rather, section 4583 limits those protections by providing landlords with a defense of business necessity for conduct that might otherwise violate section 4582. See Smith, 544 U.S. at 251-52 (O‘Connor, J., concurring) (opining that, contrary to the plurality opinion, a provision in the Age Discrimination in Employment Act permitting discrimination based on “reasonable factors other than age” did not create disparate impact liability, but rather created a “safe harbor” for defendants (emphasis omitted) (quotation marks omitted)). We therefore conclude, as a matter of law, that the MHRA, as currently established by the Maine Legislature, does not create disparate impact liability in the context of claims of housing discrimination based on a landlord‘s decision not to participate in the voluntary voucher program established by Section 8.
[¶27] In reaching the opposite conclusion, the dissent relies heavily on the federal courts’ interpretation of the Fair Housing Act (FHA),
[¶28] The dissent‘s interpretation of section 4583 would effectively compel Maine‘s landlords to participate in a voluntary federal housing subsidy program or risk having to litigate whether their decision not to participate is based on a “business necessity.” For many of Maine‘s small or mid-sized landlords, the expense and uncertainty of litigation simply may not be an option. Had the Legislature intended to impose this requirement on landlords, it would have done so clearly, particularly in light of the fact that it would have effectively overruled our holding in Catir. See 543 A.2d at 357-58 (holding that a nursing home did not violate the MHRA by offering housing to Medicaid recipients on “the same terms of tenancy offered to any other individual“). “In the absence of clear and explicit statutory language showing that the legislature intended a statute to modify case law, we will not interpret a statute to effect such a modification.” Caron v. Me. Sch. Admin. Dist. No. 27, 594 A.2d 560, 563 (Me. 1991) (emphasis added).
[¶29] The dissent suggests that our interpretation of the MHRA allows landlords to avoid liability by simply alleging business necessity rather than proving it. Dissenting Opinion ¶ 58. We do not so hold. Rather, because we conclude that sections 4582 and 4583 do not create dispa-
D. Conclusion
[¶30] Because the undisputed facts show that Coach Lantern did not discriminate against Dussault in violation of the MHRA, we affirm the summary judgment in favor of Coach Lantern and the denial of Dussault‘s cross-motion for summary judgment.
The entry is:
Judgment affirmed.
ALEXANDER, J., concurring.
[¶31] I am pleased to join the Court‘s opinion. I write separately to note that the Maine Legislature has explicitly rejected the change in the law urged by the Dissent that would interpret current Maine law to mandate acceptance of onerous contract conditions that come with the Section 8 program by all landlords except those capable of assuming the heavy cost of litigation to demonstrate “business necessity” to avoid the contractual mandates.
[¶32] Since its inception, the Section 8 Housing Choice Voucher Program, established pursuant to
[¶33] As the Court‘s Opinion notes, the Section 8 program in Maine has been administered as a voluntary program. This litigation represents an attempt, promoted by the Maine Human Rights Commission, to convert the Section 8 program in Maine into a compulsory program and to secure by judicial action an amendment to the housing discrimination laws that the Maine Legislature explicitly refused to adopt.
[¶34] The record reflects that in 2007, the Maine Human Rights Commission supported an effort to amend former
[¶35] The Legislature‘s specific refusal to change the housing discrimination law from the interpretation we gave it in Catir, 543 A.2d 356, is an indicator of legislative intent that must be respected.
[¶36] Our rules of statutory construction establish that when a law has been interpreted by a judicial opinion, we do not later change that interpretation absent “clear and explicit” statutory language demonstrating legislative intent to change prior case law. Caron, 594 A.2d at 563 (stating that, absent clear and explicit statutory language showing legislative intent to modify case law interpreting a statute, this Court will not interpret a statute to effect such a modification); see also Tripp v. Philips Elmet Corp., 676 A.2d 927, 930-31 (Me. 1996); Rubin v. Josephson, 478 A.2d 665, 671 (Me. 1984).
[¶37] Here there has been no “clear and explicit” statutory language demonstrating legislative intent to change the interpretation we adopted in Catir. To the contrary, there is an explicit refusal by the Maine Legislature to enact the change in the law supported by the Maine Human Rights Commission and apparently adopted by the dissent today. Such a major change of policy is a matter best left to resolution by the Maine Legislature after it considers all the implications of such a change. It is not a change that should be adopted by judicial action after the Legislature refused to make the change supported by the Maine Human Rights Commission.
LEVY, J., with whom GORMAN and JABAR, JJ., join, dissenting.
[¶38] I agree with the Court‘s conclusion that the Maine Human Rights Act (MHRA),
A. Whether Coach Lantern “Refused to Rent” to Dussault
[¶39] Before discussing why disparate impact liability applies in this case, it is necessary to address the threshold question of whether Coach Lantern‘s actions exposed it to liability pursuant to the MHRA. The MHRA deems it unlawful “to refuse to rent or impose different terms of tenancy” primarily because of an individual‘s status as a recipient of public assistance.
[¶40] Catir is inapposite to the present case for several reasons. First, our opinion stated that the material facts were “undisputed,” id. at 357, and that the “plaintiffs’ affidavits clearly establish that the nursing home refused to accept the lower Medicaid payment and subjected the recipients to the same terms of tenancy offered to any other individual,” id. at 358 (emphasis added). Thus, the summary judgment record demonstrated that the nursing home‘s refusal to serve the plaintiffs as Medicaid patients was not based on the plaintiffs’ status as recipients of public assistance, but was instead based on its decision to no longer accept the Medicaid reimbursement rate. Because Catir was decided before the business necessity exception was added to section 4583, we had no reason to consider whether the nursing home‘s refusal to accept the Medicaid reimbursement rate was based on business necessity.
[¶41] Second, the more fundamental issue in Catir was not whether the nursing home “refuse[d] to rent” to its Medicaid recipients, but whether it “impose[d] different terms of tenancy” on them by making them pay the higher private rate that non-Medicaid patients paid. In holding that the nursing home had not imposed different terms of tenancy, we noted that “[t]he equality of housing access secured by the Maine Human Rights Act is premised upon the assumption that the persons seeking the housing have the ability to pay.” 543 A.2d at 358. In contrast with the plaintiffs’ presumed inability to pay the higher private rate at issue in Catir, there is no dispute here that Dussault, with the assistance of the Section 8 housing subsidy, had the ability to pay the rent asked by Coach Lantern.
[¶43] On the facts before us, I conclude that Coach Lantern “refused to rent” to Dussault pursuant to section 4582. I now turn to whether Coach Lantern‘s refusal to rent was “primarily because of” Dussault‘s status as the recipient of public assistance.
B. Disparate Impact Liability Pursuant to the MHRA
[¶44] The MHRA makes it unlawful “to refuse to rent . . . to any individual . . . primarily because of the individual‘s status as [a] recipient” of public assistance.
1. The Plain Meaning of Sections 4582 and 4583 Recognizes Disparate Impact Liability
[¶45] “When construing the language of a statute, we look first to the plain meaning of the language to give effect to the legislative intent.” Stromberg-Carlson Corp. v. State Tax Assessor, 2001 ME 11, ¶ 9, 765 A.2d 566. A statute‘s plain meaning must be considered through the lens of “the whole statutory scheme for which the section at issue forms a part so that a harmonious result, presumably the intent of the Legislature, may be achieved.” Id. (quotation marks omitted). To give effect to the intent of the Legislature, “[w]ords must be given meaning and not treated as meaningless and superfluous.” Id.
[¶46] The question before us is what it means for a landlord to refuse to rent to a tenant “primarily because of” the tenant‘s status as a recipient of public assistance pursuant to section 4582. The Court‘s holding—that “primarily because of,” on its face, only prohibits housing decisions that are intentionally discriminatory—misreads the statute. Whether a housing decision is “primarily because of” a tenant‘s protected status can mean either (1) that the decision had a discriminatory purpose, or (2) that the decision resulted in a disparate impact on members of a protected group that was functionally equivalent to intentional discrimination. “[T]he necessary premise of the disparate impact approach is that some [housing] practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Mountain Side Mobile Estates P‘ship v. Sec‘y of Hous. & Urban Dev., 56 F.3d 1243, 1250-51 (10th Cir. 1995) (quot-
[¶47] This construction of section 4582 is confirmed by viewing it in conjunction with the business necessity defense established in section 4583. Section 4583 dictates that the MHRA must be construed to permit housing practices that are both (1) “consistent with business necessity” and (2) “not based on” an individual‘s status as a member of a protected class, including recipients of public assistance:
Nothing in this Act may be construed to prohibit or limit the exercise of the privilege of every person and the agent of any person having the right to sell, rent, lease or manage a housing accommodation to set up and enforce specifications in the selling, renting, leasing or letting . . . of facilities . . . that are consistent with business necessity and are
not based on the race, color, sex, sexual orientation, physical or mental disability, religion, country of ancestral origin or familial status of or the receipt of public assistance payments by any prospective or actual purchaser, lessee, tenant or occupant.
[¶48] Any doubt as to the proper construction of sections 4582 and 4583 is erased by the statute‘s legislative history.8
2. The MHRA‘s Recognition of Disparate Impact Liability Does Not Make Participation in Section 8 Mandatory
[¶49] I agree with the Court that the MHRA does not make landlords’ participation in the Section 8 housing voucher program mandatory. Nothing in the construction of the MHRA set out above requires landlords to participate in the Section 8 program. Rather, the statute simply prohibits landlords from discriminating, either in word or in effect, against recipients of public assistance. The Legislature‘s provision for these two forms of liability cannot be properly understood as making participation in Section 8 mandatory.
[¶50] The concurrence, in arguing that the MHRA does not compel participation in Section 8, places significant weight on the fact that in 2007 the Judiciary Committee struck a proposed amendment to
3. Federal Law Supports an Interpretation of Section 4582 that Creates Disparate Impact Liability
[¶51] A construction of sections 4582 and 4583 that recognizes disparate impact liability is also supported by federal law. “In enacting the Human Rights Act, Maine was legislating against the background of prior federal antidiscrimination statutes and a developing body of case law construing and applying those statutes.” City of Auburn, 408 A.2d at 1261 (footnote omitted). Accordingly, we look to federal case law to “provide significant guidance in the construction of our statute.” Id. (quoting Me. Human Rights Comm‘n v. Local 1361, 383 A.2d 369, 375 (Me. 1978)).
[¶52] The federal counterpart to the MHRA‘s fair housing provisions is the Fair Housing Act (FHA),
[¶53] Because sections 4582 and 4583 recognize disparate impact liability, it is necessary to review the grant of summary judgment in favor of Coach Lantern on Dussault‘s claim of disparate impact.
[¶54] In analyzing a claim of disparate impact, courts employ a burden-shifting analysis similar to that employed when analyzing a claim of disparate treatment. See City of Auburn, 408 A.2d at 1264-65 (adopting this analysis in the employment discrimination context); see also Mountain Side Mobile Estates P‘ship, 56 F.3d at 1250-54; Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 935-39 (2d Cir. 1988), aff‘d per curiam on other grounds, 488 U.S. 15, 18 (1988). The first step of the analysis requires the party alleging discrimination to provide prima facie evidence that a facially neutral practice affects one group more harshly than another. City of Auburn, 408 A.2d at 1264. If the plaintiff produces a prima facie case, the burden of production shifts to the defendant to produce “credible evidence” of a genuine business necessity for the challenged practice. Id. at 1264-66. If the defendant meets that burden, the burden shifts back to the plaintiff to “show that the defendant was using his selection device as a pretext for discrimination.” Id. at 1268 (quotation marks omitted). At all times, the ultimate burden of persuasion rests with the plaintiff. Id. at 1265.
[¶55] Here, Dussault satisfies the first step of the analysis: Coach Lantern‘s re-
[¶56] The idea that a business necessity can justify a practice having a disparate impact on a protected class originated in the context of federal employment discrimination law. See Griggs, 401 U.S. at 431. Federal courts have developed definitions of “business necessity” that inform the meaning of the term within the context of housing discrimination law. See, e.g., Mountain Side Mobile Estates P‘ship, 56 F.3d at 1254. Similarly, our employment discrimination case law provides guidance as to what should constitute a “business necessity” for purposes of section 4583.11 In the employment discrimi-
[¶57] Here, Coach Lantern‘s statement of material facts listed nine requirements of the HUD tenancy addendum that it finds objectionable. It then asserted, in paragraph 25, that “Coach Lantern is unwilling to attach the [Section 8] Addendum to any of its leases because of the number of burdensome conditions contained therein and the fact that the Addendum alters a landlord‘s rights under state law.” Although Coach Lantern summarized the conditions of the addendum that it objects to, it failed to assert facts from which a fact-finder could determine that the conditions would interfere with any substantial, legitimate, and nondiscriminatory interest associated with its business. Coach Lantern did not identify which addendum provisions differed from its own lease provi-
[¶58] Contrary to the Court‘s approach, whether a housing practice qualifies as a business necessity is a fact-intensive issue that the law requires the landlord to prove by credible evidence, not simply allege. Where the proffered justification for a landlord‘s housing practice (here, Coach Lantern‘s assertion that provisions of the HUD tenancy addendum are unduly onerous) applies exclusively and completely to a class of individuals who share a status protected by the MHRA (here, Dussault and all other recipients of Section 8 housing subsidies), only a fact-finder can determine whether the housing practice in fact qualifies as a business necessity and is not based on the individuals’ protected status. Coach Lantern‘s statement of material facts does no more than assert that it objects to certain requirements of the addendum without offering any information from which a fact-finder could determine whether Coach Lantern‘s objection is based on “mere business convenience” or an actual business necessity. One can only speculate, for example, whether Coach Lantern will incur increased operating expenses if it adopts the addendum, and, if so, whether the increased expenses will be sufficiently substantial as to jeopardize the “safe and efficient” operation of its rental business. City of Auburn, 408 A.2d at 1265
[¶59] Accordingly, Coach Lantern did not meet its burden of showing that an actual business necessity justified its decision to refuse to include Section 8 addenda in its lease agreements. Because Dussault made an unrebutted prima facie case of disparate impact discrimination, her motion for summary judgment should have been granted and Coach Lantern‘s motion for summary judgment should have been denied. See Mountain Side Mobile Estates P‘ship, 56 F.3d at 1254.
D. Conclusion
[¶60] With certain exceptions not applicable here, Maine landlords are required to comply with the Maine Human Rights Act. The Act does not compel landlords to participate in the Section 8 housing voucher program so long as the landlord‘s decision does not intentionally discriminate against, or result in a disparate impact on, recipients of public assistance. If a landlord‘s refusal to rent to recipients of public assistance has a disparate impact on such individuals, the landlord must have a legitimate, non-discriminatory reason—“business necessity“—for doing so.