Condo Association Subject to Fair Housing Act Liability for Religious Discrimination for Removing Mezuzah from Doorpost of Jewish Owner.

In a recent ruling with wide ranging implications for condominium associations, the Seventh Circuit U.S. Court of Appeals recently ruled that condominium owners can sue their condominium association under the federal Fair Housing Act (FHA), 42 U.S.C. §§ 3601, for alleged religious and racial discrimination that occurred after the owners bought their condo.  The case is Bloch v. Frischholz, Court Opinion, No. 06-3376 (Nov. 13, 2009), and it involved a Jewish family that resided in the Shoreline Towers condominium building for over three decades.

During this extensive time period, the Blochs displayed several “mezuzah” on the doorposts to their condo unit without objection.  A “mezuzah” is a scroll of parchment inscribed with passages from the Torah, the holiest of texts in Judaism, and it is housed in a small rectangular box, about six inches tall, one inch wide and one inch deep.  As acknowledged by the Court, the “mezuzah” is a central aspect of the Jewish religious tradition.

In 2001, the Shoreline Towers Condo Association (“Association”) enacted a set of rules governing activities taking place outside the units in the common hallways.  These “Hallway Rules” stated, in part, that “mats, boots, shoes, carts or objects of any sort are prohibited outside of Unit entrance doors.”  For the next three years, however, the Association did not remove mezuzot or any other objects affixed to unit doors or doorposts, with the exception of a few pictures depicting a swastika, marijuana plant and the Playboy bunny.  Instead, the Association typically relied on the rule to remove clutter from the hallways.

But in May 2004, the Association began to remove and confiscate not only the mezuzot, but also crucifixes, wreaths, Christmas ornaments, political posters and Chicago Bears pennants.  The Blochs complained to the Association and even provided a letter from the Chicago Rabbinical Council explaining that Jewish law requires mezuzot to be displayed on exterior doorposts rather than indoors, and another letter stating that observant Jews could not live in a place that prohibited them from affixing mezuzot to their doorposts. 

The Association denied the Bloch’s request to amend the rules, and threatened to fine the Blochs for continuing to display the mezuzot.  In addition, the Association’s President, Edward Frischholz, made no effort to stop staff from repeatedly removing the mezuzot.

The Blochs filed suit against the Association and its President in September 2005 seeking an injunction and damages for distress, humiliation, and embarrassment.  Their federal claims were predicated upon the federal Fair Housing Act, and specifically, sections 3604(a), 3604(b) and 3617.    Shortly thereafter, the Chicago City Council amended its municipal code to prohibit condominium and rental properties from barring residents from affixing religious signs or symbols to doorposts.  Soon thereafter, the Illinois legislature followed suit.  765 ILCS 605/18.4(h).  Although these enactments mooted their injunction claim, the Blochs were still allowed to proceed with discovery in support of their damage claims.

However, Judge Lindberg of the U.S. District Court for the Northern District of Illinois granted summary judgment to the Association and its President on the federal claims, relying upon the Seventh Circuit’s earlier ruling in Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, 388 F.3d 327 (7th Cir. 2004), which held that the FHA prohibited discrimination only at the time of sale, not after the sale had occurred. 

On appeal, the Seventh Circuit addressed each of the Bloch’s legal theories, specifically, the three claims under sections 3604(a), 3604(b) and 3617 of the FHA.

Section 3604(a)

Section 3604(a) makes it unlawful “[t]o refuse to sell or rent after making a bona fide offer, or to refuse to renegotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”  42 U.S.C. §3604(a) (emphasis added).  The issue for the Seventh Circuit was whether this law prohibits discrimination after the buyer signs on the dotted line.  The Court answered this question “yes,” and concluded that the Blochs theoretically could recover on a “constructive eviction” scenario because the unit would thereby be “unavailable” to them.  However, because the Blochs never moved out of the unit, the Court held that “no reasonable jury could conclude that the defendants’ conduct rendered Shoreline Towers “unavailable” to the Blochs, which is what § 3604(a) requires.”

Section 3604(b)

On the other hand, the Seventh Circuit disagreed with the district court and found that the Blochs should have been allowed to take their Section 3604(b) claim to the jury.  Section 3604(b) makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of race, color, religion, sex, familial status, or national origin.”   42 U.S.C. §3604(b) (emphasis added).  Here, the Court ruled that when the Blochs purchased their condo, they agreed to be bound by the Association’s rules and regulations, which was a term or condition of sale that brought the case within the parameters of Section 3604(b).  Thus, if the Association wielded its power under those regulations in a discriminatory manner, the Blochs could pursue a claim under Section 3604(b).

Section 3617

The Seventh Circuit also found that the Blochs should have been able to proceed to trial on their claim under Section 3617, which makes it unlawful “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by Section 3603, 3604, 3605, or 3606 of this title.”  Notably, the Court held:  “[I]n light of our view that §3604 prohibits discriminatory evictions, it follows that attempted discriminatory evictions can violate § 3617’s prohibition against interference with § 3604 rights . . . . We agree with the Blochs . . . that § 3617 reaches a broader range of post-acquisition conduct.  A claim for coercion, intimidation, threats, and interference with or on account of plaintiff’s § 3604 rights does not require that the plaintiff actually vacate the premises.” (emphasis supplied).

Recognizing that a “finding of discriminatory intent is usually based on circumstantial evidence”, the Court in Bloch then ruled that sufficient evidence of discriminatory intent existed to allow the Blochs to take their case to a jury.  This evidence of a “pattern of harassment, invidiously motivated” included facts showing:

  • The Assocation intentionally reinterpreted the Hallway rules three years after enactment to repeatedly remove the mezuzots;
  • Animus existed between the President and Ms. Bloch, as reflected by his knowledge that removing the mezuzots offended Ms. Bloch, his repeated consent to remove the mezuzots from the doorposts, his accusation that Ms. Bloch was a racist, calling Ms. Bloch a liar, encouraging other unit owners to vote against her re-election to the Association’s board and telling Ms. Bloch that if she didn’t like the way the rules were enforced she should “get out.”   
  • Frischholz scheduled board meetings on Friday nights, when Ms. Bloch was unable to attend because of her religious obligations to honor the “Shabbat” or “Sabbath” starting at sunset on Fridays, which the court viewed as
  • Despite the Association’s agreement to allow the mezuzots during the mourning period after Mr. Bloch’s death, the Association waited until the day of the funeral and then removed the mezuzots, despite failing to remove a coat rack and folding table outside the same unit for visitors after the funeral.

Condominium associations throughout Illinois and the Midwest should review the Bloch decision carefully and be cognizant of the fact that board members’ discriminatory actions could likely trigger liability under the Fair Housing Act even after a person has purchased a unit.

DeBlasio Law Group, LLC is experienced in the areas of civil rights, real estate law and litigation in the federal courts, and is prepared to advise condominium associations and its board members in connection with such important issues.  Visit