Published on: January 5, 2015
The holidays are past; the ubiquitous holiday music has (mercifully) been silenced; and community associations that had been arguing with owners about the holiday decorations they were displaying, or wanted to display, are now arguing about when the decorations should be removed.
Arguments about holiday displays are perennial. And while the arguments themselves (over inflatable Santas, sparkling lights, towering trees and multi-colored candles) may seem trivial, the issues they raise are anything but. When these spats end up in court, as they sometimes do, freedom of speech, freedom of religion and anti-discrimination laws all come into play, raising the legal stakes for community associations and increasing their liability risks.
Most boards are aware, or should be, that restrictions on religious displays are particularly problematic, but some boards continue to wander into this legal thicket anyway. For example, a Detroit HOA is facing a religious discrimination suit and a torrent of bad publicity after ordering a family in a community of single-family homes to remove a nativity scene from its front lawn. The board said the display violated association regulations governing holiday decorations, which was true. But the rules barred only religious displays; secular decorations were permitted. If the owners sue, this association will have to explain why rules targeting religious displays do not constitute religious discrimination. That won’t be easy, to say the least.
A Fair Housing Question
A federal appeals court (in the Seventh Circuit) recently considered a similar question in a long-running dispute (Bloch v. Edward Frischholz and Shoreline Towers Condominium Associations) over the right of owners to display a mezuzah (a Jewish religious symbol) on the doorpost of their unit. The litigation centered on a rule the Shoreline Towers Condominium in Chicago adopted in 2001, barring the placement of “mats, boots, shoes, carts or objects of any sort” outside owners’ doors.
The purpose, board members said at the time, was to prevent clutter in the hallways. But five years later, a new board interpreted the rule to apply to any exterior decoration — an interpretation they enforced by removing all religious signs and symbols, including the mezuzahs on the doors of Jewish residents. The affected and infuriated owners included Lynne Bloch, who, ironically, had chaired the board committee that adopted the original rule.
An increasingly bitter tug-of-war ensued, in which Bloch kept replacing her mezuzah and the board repeatedly ordered it removed, refusing even a request to leave it in place temporarily while Bloch’s family observed a period of mourning following her father’s death.
Bloch sued the board, claiming that the rule violated the anti-discrimination provisions of the Fair Housing Act. By the time the case was heard, the board had adopted a religious exception to the rule, allowing owners to display items of “religious significance”; Chicago had enacted an ordinance making it illegal to prevent owners from “placing or affixing a religious sign, symbol or relic on the door, doorpost or entrance of an individual apartment, condominium, or cooperative housing unit”; and the Illinois state legislature had approved a condominium law requiring community associations to make a “reasonable accommodation” for religious practices, including the display of “religiously-mandated objects” on front doors.
Finding Discriminatory Intent
But Bloch persisted, seeking damages for the pain and suffering she said the rule had inflicted on her and her family. A District Court granted summary judgment for the association, rejecting Bloch’s contention that the association’s rule constituted a “constructive eviction” under the Fair Housing Act, because it prohibited her from doing something her religion required. The court also found no evidence of the “discriminatory intent” that would have supported a Fair Housing Act claim.
A three-judge panel of the Seventh Circuit initially considered the appeal, and two of the judges agreed with the lower court’s conclusion that Bloch had no claim under the Fair Housing Act. The third judge dissented angrily and at length.
Accepting Bloch’s request for further review, the full court agreed to consider two key questions: Whether the ban on religious displays constituted a constructive eviction (the court agreed with the majority of the panel that it did not) and whether there was evidence of intentional discrimination by the association. On this point, the full court, like the dissenting judge, reached a different conclusion.
They agreed with the majority view that simply refusing to accommodate a request for a religious exception to the association’s rules would not in itself be discriminatory, because the Fair Housing Act requires accommodations only for disabilities, not for religion. But the full court found that Bloch wasn’t seeking an exception to an otherwise valid rule; she was arguing that the association’s rule was intentionally discriminatory, targeting Bloch specifically because of her religion. And the court found evidence to support that contention, citing, among other points:
- The original rule prohibited only “signs or name plates” placed on unit doors; it was the reinterpretation of the rule, four years later, that encompassed the mezuzah on Bloch’s doorpost, suggesting that “the association interpreted the rules with Jews in mind.”
- The testimony of Frischholz (the board member overseeing enforcement actions against the Blochs) demonstrated religious bias on his part.
- Although the association ordered removal of the mezuzah during a period of mourning for Bloch’s father, it left in place the table and coat rack that had been paced in the hallway to accommodate visitors. “Selectively interpreting [the ban on] ‘objects of any sort’ to apply only to the mezuzah but not to secular objects creates an inference of discriminatory intent,” the court said.
“Although the Bloch’s case is no slam dunk,” the court acknowledged, “we think the record contains sufficient evidence, with reasonable inferences drawn in the Blochs’ favor” to overcome the finding of summary judgment for the association and require a trial on the merits of the Blochs’ argument. “It is a combination of these facts and inferences, rather than any single one, that pushes this case beyond summary judgment,” the court explained.
Casting a Wide Net
Although the court’s decision applies only in the Seventh Circuit, it contains an important message for all condominium associations: Courts considering discrimination complaints will not simply consider whether an owner’s actions violate an association rule; they will consider whether the rule itself, its interpretation or its enforcement is discriminatory. And they will cast a wide net in the search for evidence of discriminatory intent.
Even a rule that appears to be neutral may be challenged if it has a “disparate impact” on some owners because of their religion or other protected characteristics, such as their gender or marital status. For example, a rule prohibiting head scarves might have a non-discriminatory goal (preventing criminals from hiding their faces), but it would have a “disparate” and possibly discriminatory impact on Muslim women, who are required to cover their faces.
In the Shoreline case, the rule barring displays on doorposts arguably had a disparate impact on Jews, although Bloch did not raise that argument in her suit. It is worth noting that the U.S. Supreme Court is considering whether disparate impact is a valid theory under the Fair Housing Act. But unless and until the court rejects that theory (which it appears likely to do), condominium associations would be well-advised to consider the potentially disparate impact of regulations they adopt.
Just Say No?
Where does this leave boards grappling with disputes over holiday decorations? How should they approach rule-making in this area? The old saw “like porcupines make love – very carefully,” comes to mind. Just saying no to all displays seems the safest and certainly the easiest course. It would take care of the inflatable Santas as well as the nativity scenes and menorahs – none would be allowed. But a blanket ban might also bring discrimination complaints from owners who, like Bloch, say the rules interfere with their ability to practice their religion. A ban will also create enforcement headaches for the board, because some owners predictably will ignore the rules.
Equally important, the ‘just say no’ approach will upset many owners who want to decorate their homes for the holidays. Rules prohibiting all displays may be evenhanded, but they probably won’t be popular, and they may undermine the sense of community associations want to foster.
For that reason, instead of barring holiday decorations, many communities try to adopt reasonable rules restricting them — dictating their size and location, prohibiting annoyances (such as bright, flashing lights and blaring music) and limiting the time during which the decorations can be displayed. Even this seemingly simple approach may produce some complications, however, because the rules must accommodate a variety of religions that do not begin and end on the same days.
An association we represented required the removal of holiday decorations within a week after the beginning of the New Year. Noting that the Chinese New Year occurred on February 5th, the association manager did not ask a family displaying decorations to remove them until several days after that. Unfortunately, he did not notice that the Chinese New Year is celebrated over a longer period that extended beyond the requested removal date, and the Chinese family filed a discrimination suit (which the association eventually settled) as a result.
A Reasonable Approach
Obviously, there is no foolproof strategy for navigating the sometimes murky holiday decoration waters. In addition to a measure of tolerance and a detailed calendar (both of which are essential), the following guidelines may be helpful:
- Before you establish decorating rules and restrictions, find out what community residents like and don’t like. Adopt rules that reflect community preferences and concerns as much as possible.
- If you decorate common areas, give equal weight and space to all religions celebrating the season, or none of them. The easiest and least offensive approach, usually, is to stick with generic “greetings of the season” decorations.
- Make your rules neutral. Focus on the size and location of decorations, but not on their content. Don’t single out religious displays.
- Publicize the rules the board adopts and send reminders to owners well before the holiday season begins. Residents are less likely to protest (or ignore) a rule barring flashing red and green lights if they haven’t already spent $50 buying several strands of them.
- Establish a positive tone. That’s good advice for all rules, but it makes particular sense for holiday decorations. Emphasize what residents can do rather than what is forbidden.
- Explain the reasons for any restrictions you establish. Emphasize safety (on which owners can generally agree) more than good taste, on which they will almost certainly differ.
- Make sure your rules are enforceable and make sure you enforce them consistently and with an even (non-selective, non-discriminatory) hand. The Bloch case illustrates how a blanket rule may become discriminatory if it isn’t interpreted and enforced consistently.
- Don’t overreact. The holiday wish for peace on earth may be beyond reach, but peace within your community should be achievable.