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BRAUNSTEIN v. DWELLING MANAGERS

September 18, 1979;

RORY BRAUNSTEIN, et al., Plaintiffs,
v.
DWELLING MANAGERS, INC. and MANHATTAN PLAZA ASSOCIATES, Defendants.



The opinion of the court was delivered by: PIERCE

OPINION AND ORDER

This is an action brought by four single parents and their respective four children *fn1" who claim that because of their sex they have been denied rental of two bedroom apartments in Manhattan Plaza, a federally-subsidized Mitchell-Lama housing complex. *fn2" Defendants are the owners and managers of Manhattan Plaza. Both parties move for summary judgment pursuant to Fed.R.Civ.P. 56.

 The facts are undisputed. Defendants acknowledge that a single parent with a child of the same sex is restricted to rental of a one bedroom apartment whereas a single parent with a child of the opposite sex is permitted to rent a two bedroom unit. Defendants claim that they are enforcing a policy instituted by the New York City Department of Housing Preservation and Development (HPD), the municipal agency which supervises Manhattan Plaza. An affidavit from Ruth Lerner, Assistant Commissioner of HPD, agrees that this is HPD's policy based on its interpretation of regulations promulgated by the agency. *fn3" Defendants further maintain that the policy comports with federal guidelines. *fn4" Plaintiffs, on the other hand, attack the policy as violating the Fair Housing Act (42 U.S.C. § 3604), *fn5" and the equal protection and due process clauses of the Constitution.

 Fair Housing Act

 Section 3604, enacted in 1968, was designed primarily to remedy racial discrimination in the rental or sale of housing. See Evans v. Lynn, 537 F.2d 571, 576-77 (2d Cir. 1975), Cert. denied, 429 U.S. 1066, 97 S. Ct. 797, 50 L. Ed. 2d 784 (1977); Otero v. New York City Housing Authority, 484 F.2d 1122, 1133 (2d Cir. 1973). In 1974, the section was amended to prohibit sex discrimination also. *fn6"

 There are few cases deciding charges of sex discrimination, and detailing the parameters of the statute. *fn7" The facts here present the Court with a case of first impression in defining the limits of sex discrimination under § 3604. While sex discrimination is not specifically defined in the statute, cases construing similar language in Title VII (42 U.S.C. § 2000e-2) *fn8" have held that discrimination must involve "disparate treatment." See, e.g., Sprogis v. United Airlines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971). "Sex discrimination results when the opportunities or benefits offered . . . to one gender are less valuable or more restricted than those offered to the other." DeLaurier v. San Diego Unified School District, 588 F.2d 674, 677 (9th Cir. 1978).

 The Court does not find present in this case the requisite difference in treatment which would justify a finding of discrimination. A mother and daughter who reside together receive the same treatment as a father and son; neither family is eligible for rental of a two bedroom apartment. Since the essence of sex discrimination is the difference in treatment of the individual based on gender, and males and females receive similar treatment from the defendants, there is no sex discrimination.

 An analogous situation was reviewed by the Fourth Circuit in a case in which plaintiff charged sex discrimination when she lost her job because of a municipal ordinance which banned commercial massages by members of the opposite sex. The court concluded that the statute was not discriminatory since "the restrictions imposed . . . apply equally to males and females; neither can perform massages on customers who are members of the opposite sex." Aldred v. Duling, 538 F.2d 637, 638 (4th Cir. 1976). *fn9"

 Plaintiffs urge the Court to rely on the Title VII discrimination test recently set forth in City of Los Angeles Dep't of Water and Power v. Manhart, 435 U.S. 702, 711, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978), to wit: "whether the evidence shows "treatment of a person in a manner which but for that person's sex would be different.' " Plaintiffs contend that "but for" their sex they would be housed in larger apartments. They argue that if all other circumstances remained constant and one of the plaintiffs were of the opposite sex, E. g., if a male parent with a male child were a female parent with a male child, that family would receive a larger apartment.

 However, the Court finds that the variable which determines allocation of two bedroom apartments is not the sex of the individual plaintiffs, but the composition of the family unit. A female parent with a female child and a male parent with a male child receive one bedroom apartments; a female parent with a male child and a male parent with a female child receive two bedroom apartments. Distinctions based upon factors other than the individual's sex do not constitute sex-based discrimination. See General Electric Co. v. Gilbert, 429 U.S. 125, 134-35, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976). *fn10"

 The Court concludes that defendants' housing allocation procedure is gender-neutral, equally affecting both men and women. Accordingly, it does not constitute sex discrimination in violation of the Fair Housing Act.

 Equal Protection

 Plaintiffs also charge that defendants' housing policy classifies potential tenants and distributes apartments on the basis of gender in violation of the equal protection clause of the Constitution. *fn11"

 At the outset, it should be noted that the policy by which defendants distribute apartments does not appear to be a gender-based classification of a type outlawed by the equal protection clause. The traditional equal protection case involves a classification that distinguishes broadly between males and females. See, e.g., Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976) (prohibition against sale of 3.2% Beer to males 18-20 years of age but not to females of that age); Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971) (mandatory preference of men over women as administrators of decedent's estate). In such cases, gender is often used "as an inaccurate proxy for other, more germane bases of classification." Craig v. Boren, 429 U.S. 190, 198, 97 S. Ct. 451, 457, 50 L. Ed. 2d 397 (1976). *fn12" Yet, as has been stated previously, the underlying classification and determination of eligibility in the instant case rests on the composition of the family unit rather than the gender of the applicant. This is not a case where sex stereotyping is used as a convenient substitute for more accurate classifying criteria. See, e.g., Orr v. Orr, 440 U.S. 268, 278-283, 99 S. Ct. 1102, 59 ...


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