Questions for Appellant (Tenants) on Post-Acquisition Issue

1. Should rental really be construed more broadly than sale in 3604(b)? Since the
FHA ( 3604(b)) prohibits discrimination in a sale or rental, shouldnt the term
rental be interpreted similarly to or in the same context as the term sale which
ordinarily refers to a transaction and not to events that may occur after the
transaction closes?
2. Isnt the key here the meaning of rental and not the meaning of terms, conditions,
and privileges? If rental is limited to the lease transaction itself and not to the
ongoing relationship that ensues, then dont the phrases terms, conditions and
privileges as well as services and facilities have to be limited in the same way?
3. What about the definition of to rent in the FHA? Under 3602 To rent includes
to lease, to sublease, to let and otherwise to grant for a consideration the right to
occupy premises not owned by the occupant. Doesnt this definition suggest that the
term rental is meant to refer to the lease transaction and not an ongoing living
situation?
4. At most the statutory language seems ambiguous on the post-acquisition issue, but
the legislative history seems to support limiting the FHA to discrimination that
affects access.
a. Why shouldnt we interpret the statute in a way that is consistent with the
legislative history?
b. Or is there legislative history that supports your proposed interpretation of
the language?
5. If Congress had really intended for 3604(b) to reach all forms of discrimination in
housing from access to habitability, why didnt it say so more specifically the way it
did with Title VII in the employment setting?
6. Congress amended 3604 in 1988 when it added protection for the disabled in
3604(f) that specifically includes protection from discrimination that occurs while
one is living in a dwelling. If Congress had wanted 3604(b) to have a similar postacquisition reach, wouldnt it have modified 3604 (b) at that time?
7. Doesnt the lack of specificity in 3604(b) indicate that Congress did not intend that
section to reach as broadly in the housing setting as Title VII does in the
employment setting?
Questions for the Appellee (Landlord) on the Post-acquistion Issue:
1. Since there is no temporal qualifier that confines sale or rental to a particular
moment in time, shouldnt the terms be read more broadly to encompass more than
just the closing of a transaction? Isnt that essentially what the Supreme Court did
with the term employee in Title VII in Robinson v. Shell Oil?

2. A rental agreement is different from a sale agreement because it is an ongoing

relationship. At the very least shouldnt the term rental be construed more broadly
than the term sale? Why shouldnt Halprin be limited to the sale context?
3. Even Halprin concedes that the FHA may apply to constructive eviction claims
which are necessarily post-acquisition. Why shouldnt it apply to discriminatory
harassment that falls short of constructive eviction?
4. How do you reconcile the fact that there are some other provisions in the FHA that
do clearly apply post-acquisition, e.g., provisions prohibiting discrimination in home
improvement financing ( 3605) and requiring reasonable accommodation for
persons with disabilities (3604(f))? Doesnt this indicate that Congress was not only
concerned about access, but also concerned about discrimination that would affect
living in a dwelling?
5. Courts have been applying the FHA to post-acquisition activities for many years
now long before Halprin. Why should we turn back the clock now?
6. Even if the legislative history indicates that Congress was primarily or maybe even
only concerned about improving access to housing, does that really tell us anything
about how Congress would have wanted to deal with post-acquisition discrimination
had Congress thought about it?
7. Hasnt Title VII been interpreted to reach types of discrimination and situations
that Congress never thought about when it enacted the statute (e.g., same-sex
discrimination, sex stereotyping, discrimination against males)? Why shouldnt we
interpret the FHA the same way as long as the language permits the
interpretation?
8. Doesnt your proposed interpretation result in an absurdity? Wouldnt it prohibit a
landlord from refusing to rent to someone because of their race, but then permit the
landlord to make their lives miserable once they moved in by discriminating in other
ways? Why should the validity of a discrimination claim turn on whether a resident
has yet closed on a sale or rental agreement?
9. Hasnt the Supreme Court said that the FHA must be interpreted broadly in accord
with its remedial purposes? Doesnt that require an interpretation in favor of the
tenants on this issue?
Questions for the Tenant (Appellant) on the Landlord Liability Issue
1. Why should the court use law developed under an employment statute like Title VII
as a model for interpreting a housing statute like the Fair Housing Act?
2. Isnt the employer-employee relationship fundamentally different from the landlordtenant relationship such that it doesnt make sense to apply the same legal
principles of liability in both situations?

3. Even if the landlord does have a contractual right to intervene and take action
against a harassing tenant, why should we go further and impose a duty under
federal law to enforce that contractual right?
4. Isnt it true that an employer has more control over its employees and the
employment environment than a landlord has over its tenants and the housing
environment? And doesnt this difference justify treating the two differently in
hostile environment claims?
5. An employer has the power to affect harassment immediately through firing or
disciplining the harasser. A landlord does not have the power to have an immediate
impact, does he? So isnt it unfair to impose on a landlord the same duty to stop
harassment that is imposed on an employer?
6. Is it significant that there is an agency relationship between an employer and its
employee, but not between a landlord and tenant?
7. Are there any federal decisions that have actually recognized liability of a landlord
for failure to act to stop harassment by a co-tenant?
8. Wouldnt this kind of liability be unduly burdensome on a landlord? Are you asking
us to require that landlords intervene in every dispute between neighboring
tenants?
9. Arent there adequate state remedies to address the behavior of the harassing
tenants in this case for example, nuisance law, a FHA action against the co-tenant,
and action against the landlord for breach of the covenant of quiet enjoyment? Why
should we create a federal cause of action for something already covered by state
law?
10. Under the FHA, the Husssains have a cause of action for discriminatory harassment
against the harassing co-tenants or against a harassing landlord. Why is it
necessary to recognize a cause of action against a landlord who has not participated
in the harassment? Title VII is different, isnt it? Under Title VII, there is no
explicit remedy for workplace harassment against a co-employee, thus there is a
need for the employer to respond to harassment between co-employees.
Questions for the Landlord (Appellee) on the Landlord Liability Issue
1. Why shouldnt we use the models developed under Title VII to interpret the Fair
Housing Act? Arent the language and purpose of the two statutes very similar?
2. Isnt an employers liability for co-employee harassment under Title VII based not on
agency principles but instead on the employers own negligence in failing to take
reasonable steps to prevent or stop a known harm? Doesnt that make the lack of an
agency relationship between landlord and tenant irrelevant to the question of
whether the same model of liability should apply in both situations?

3. Isnt the duty of an employer to prevent and correct known co-employee harassment
really based on the employers ability to control the work environment and doesnt a
landlord have a similar ability to control the housing environment?
4. Why should a tenant have to endure severe and pervasive harassment in his or her
housing environment when the landlord could do something to stop it? Isnt the
privilege of living in ones home free of religious harassment at least as important as
being able to work in a harassment-free environment?
5. Is imposing a duty on a landlord to take steps to prevent and correct severe and
pervasive religious harassment by tenants really any different from the duties a
landlord already has under common law? Isnt a landlord liable for injuries caused
by known risks of harm in the housing environment, whether it be harm caused by
tenants or harm caused by other dangerous hazards? How is the liability the
tenants seek to impose here really any different?
6. Doesnt a landlord have the power to protect tenants similar to the power of an
employer to protect its employees and isnt this power to control the environment
really the rationale behind the Title VII rule?
7. Even if a landlords power to evict does not have the same immediate impact as an
employers power to fire and discipline, isnt the threat of eviction and eviction itself
a more powerful and efficient tool to stop co-tenant harassment than any other
remedy a tenant might have?
8. Even if a landlords ability to control tenants behavior is not as great as an
employers ability to control workplace behavior, wouldnt the means available to the
landlord to stop harassment necessarily entail a factual determination of what was
reasonable under the circumstances so that a landlord would not be expected under
the rule to do any more than he has the power to do?
9. Do we really have to worry about making all neighborhood disputes actionable?
Wouldnt the other requirements of a hostile housing environment prevent all
neighborhood disputes from being actionable? Wouldnt a landlord only have to
respond to known disputes that are severe and pervasive?
10. Wouldnt imposing a duty on landlords to prevent and correct severe and pervasive
harassment result in the development of rules and processes to deal with such
harassment and ultimately help promote a harassment-free housing environments?
11. Wouldnt encouraging the development of rules and procedures to prevent and
correct housing harassment ultimately promote the harassment-free integrated
neighborhoods envisioned by the legislature when it enacted the Fair Housing Act?
12. Why would imposing a duty on landlords to prevent and correct serious religious
harassment (or any kind of protected harassment) be unduly burdensome? Dont
landlords already use evictions or threats of eviction for less egregious lease
violations such as having pets or too many occupants, or failing to pay rent?

13. Even if there is some overlap with common law remedies, isnt it true that these
remedies do not serve the same systematic purpose of eliminating housing
discrimination that the FHA promotes? Dont we need the FHA to reach all kinds of
housing discrimination that those in control such as landlords have the ability to
prevent or correct? Dont we need as much protection in our homes as we have in
our workplaces?