LANDLORD AND TENANT ‑- DISCRIMINATION ‑- REAL ESTATE ‑- APPLICABILITY OF LAW AGAINST DISCRIMINATION TO SELECTION OF ROOMMATE

LANDLORD AND TENANT ‑- DISCRIMINATION ‑- REAL ESTATE ‑- APPLICABILITY OF LAW AGAINST DISCRIMINATION TO SELECTION OF ROOMMATE

It is not contrary to the Washington state law against discrimination, chapter 49.60 RCW, for a person to discriminate on the basis of sex, age or religion in selecting a roommate with whom to share living quarters, or for a person to specify in an advertisement for a roommate that the roommate must be of a particular sex, age or religion, or for a newspaper to publish an advertisement for a roommate when the advertisement contains such a specification.

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                                                              September 28, 1976

Honorable Alan Bluechel
State Senator, 45th District
12534 68th Ave. N.E.
Kirkland, Washington 98033

                                                                                                                 Cite as:  AGO 1976 No. 17

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on the following questions:1/

             [[Orig. Op. Page 2]]

            "1) Is it contrary to the Washington state law against discrimination, Chapter 49.60 RCW, for a person to discriminate on the basis of sex, age, or religion in selecting a roommate?

            "2) Is it contrary to the Washington state law against discrimination, Chapter 49.60 RCW, for a person to specify in an advertisement for a roommate that the roommate must be of a particular sex, age and religion?

            "3) Is it contrary to the Washington state law against discrimination, Chapter 49.60 RCW, for a newspaper to publish an advertisement for a roommate when the advertisement specifies that the roommate must be of a stated sex, age range, and religion?"

            We answer all three questions in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            By its enactment of the state law against discrimination, chapter 49.60 RCW, the legislature established a general right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental or physical handicap.  RCW 49.60.030(1).  The law then goes on to declare discrimination on these grounds in certain areas to be an "unfair practice" for which an administrative remedy is provided.2/   Certain discrimination because of age or marital status is also defined as an unfair practice but is not declared to be a civil right by RCW 49.60.030.  In addition to providing an administrative remedy for unfair practices there is a judicial remedy in the law for "any act in violation of this chapter."  RCW 49.60.030(2).  Since the law against discrimination varies in its coverage of different discriminatory acts each kind must be analyzed separately.

            Question (1):

            Age discrimination comes within the coverage of the law against discrimination in only one area of conduct ‑ employment.   [[Orig. Op. Page 3]] See, RCW 49.60.180, 49.60.190, and 49.60.200.  It is thus not contrary to the law against discrimination for a person to discriminate because of age in selecting a roommate.

            In addition to its coverage of employment, however, the law against discrimination has specific provisions against discrimination with regard to credit transactions (RCW 49.60.176), insurance transactions (RCW 49.60.178), places of public accommodation (RCW 49.60.215), and real estate transactions (RCW 49.60.222).  If the act of selecting a roommate comes within any of these categories it presumably would be as a "real estate transaction."  RCW 49.60.222 says that:

            "It is an unfair practice for any person, . . . because ofsex, marital status, race, creed, color or national origin:

            "(1) To refuse to engage in a real estate transaction with a person;" (Emphasis supplied.)

            And, as defined by RCW 49.60.040,

            "'Real estate transaction' includes the sale, exchange, purchase, rental or lease of real property."

            In some instances, of course, the selection of a roommate will clearly be beyond the scope of this definition; i.e., where the person looking for a roommate plans on taking in another person who will neither be a cotenant nor a subtenant.  On the other hand, if the person is looking for someone to become his or her cotenant (that is, a party to his or her lease or other rental arrangement with the landlord) or subtenant then a real estate transaction, under the broad purview of the phrase as above defined, will seemingly be involved.  Nevertheless, for reasons which we will next explain, we reject that broad construction of the phrase and conclude, instead, that the selection of a roommate ‑ meaning (for purposes of this opinion) a person to share the same living quarters as are occupied by the roommate seeker ‑ does not fall within the ambit of the law against discrimination.

            Perhaps the best way to begin our explanation of this conclusion is by describing an event which occurred after our  [[Orig. Op. Page 4]] receipt of your opinion request.  In response to an inquiry submitted directly to it by State Senator H. A. Goltz the state human rights commission (which administers the law against discrimination) issued a declaratory ruling on July 15, 1976, saying that the law does not apply to a choice of the sex of persons with whom one lives ‑ even though a rental is involved.  See, Declaratory Ruling No. 18, copy enclosed.  In so ruling the commission first noted (as we also have above) that:

            "Many roommate or similar living arrangements don't involve a 'real estate transaction' at all.  For example, no real estate transaction is involved where one person merely lives with another as a guest or companion and does not claim any right to occupy the housing accommodation."

            Conversely, however, the commission then went on to say:

            "But where, as in the situation you describe, a room is offered forrent ‑ the tenant paying for the use of the room and acquiring a legal right to occupy it ‑ the facts come within the logic of the 'real estate transaction' language used in the law against discrimination. . . ."

            The commission next acknowledged a legislative history indicating that the law was intended to be without any exceptions in its coverage of designated transactions but, nevertheless, disposed of that history by saying:

            "If our conclusion were based on these considerations alone, we would say that rentals of the type you describe are 'real estate transactions' and are governed by the statute.  However, this commission in the exercise of its power is not confined to mechanical reasoning from the dictionary definitions of words.  We can interpret the statute in view of its purposes, and we can give weight to policy considerations.

            ". . .

            "One of the societal values which is  [[Orig. Op. Page 5]] deserving of recognition, in our view, is the basic freedom to control one's life by choosing the sex of persons with whom one lives.  We think that this holds true even though the choice involves a rental arrangement that in other circumstances would be covered by the real estate transactions law."

            Based upon the foregoing reasoning the commission then concluded as follows:

            "We therefore rule that the law against discrimination does not apply to the choice of sex of persons with whom one lives, even though a rental is involved."

            Finally, the commission explained the scope of this ruling by saying:

            "Our ruling applies to persons who share living accommodations.  It does not apply to persons who live in separate units of a duplex or other multiple dwelling, or to the choice of who will occupy a room in a house where the tenant has exclusive use of the room and other living areas are not shared, such as in the case of a boarding house.  By 'living areas' we mean living rooms, kitchens, bathrooms, etc., and not common hallways, storage rooms or laundry areas.  Persons who share living areas are within the coverage of our ruling although they may have exclusive use of their bedrooms."

            A clear statutory basis for the issuance of such a declaratory ruling as this may be found in RCW 34.04.080, a part of the state administrative procedures act, which provides that:

            "On petition of any interested person, an agency may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it. . . ."

            Accordingly, it follows that the commission's ruling on the question of specifying sex in the selection of a roommate (which basically also answers that aspect of your present question) must be accepted as an authoritative interpretation  [[Orig. Op. Page 6]] of the law against discrimination until and unless the ruling is reversed or modified by a court or by subsequent action of the commission itself.  But even more importantly, we believe that one of the underlying reasons for the ruling necessitates as a matter of law the result which was there reached.

            In declaring the law against discrimination to be inapplicable to the specification of sex in the selection of a person to share one's own living quarters the commission said, in a footnote appearing on the final page of its ruling:

            "In interpreting the statute we have relied primarily on our own judgment as to how the general legislative mandate ought to be applied to the present facts, but we have also given some weight to the desirability of avoiding the constitutional issue that would be raised by the contrary answer.  Under the United States Constitution there exists a right of personal privacy, or a guarantee of certain zones of privacy, that is not yet fully defined.  SeeRoe v. Wade, 410 U.S. 113 at 152, 35 L.Ed. 2d 147 at 176, 93 S.Ct. 705 (1973) (abortion).  Justice Shirley M. Hufstedler of the 9th Circuit Court of Appeals has said that the right ought to be formulated as 'the right to preserve the autonomy of one's personality against unreasonable governmental incursions.'  S. Hufstedler,The Directions and Misdirections of a Constitutional Right of Privacy.  24 (1971)."

            It will thus be seen that the human rights commission's construction of the statute was such as to avoid a serious constitutional issue involving a possible invasion of a person's "right of privacy" if the law were to be read as encompassing the selection of a roommate under the broad definition of "real estate transaction" in RCW 49.60.040, supra.  This approach is, in turn, fully supported by a well-established principle of statutory construction which directs that where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in that respect, the former construction and not the latter is to be adopted.  See, e.g.,Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 268, 150 P.2d 839 (1944), and cases cited therein.

             [[Orig. Op. Page 7]]

            InRoe v. Wade, 410 U.S. 113, 35 L. ed.2d [[L.Ed. 2d]]147, 93 S.Ct. 705 (1973), which the commission specifically cited in its ruling, the United States Supreme Court characterized the constitutional right of privacy as being "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."  35 L. ed.2d [[L.Ed. 2d]]at 176.  In so ruling the court explained that:

            "The Constitution does not explicitly mention any right of privacy.  In a line of decisions, however, . . . the [United States Supreme] Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. . . .  These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' . . . are included in this guarantee of personal privacy.  They also make it clear that the right has some extension to activities relating to marriage, . . . procreation, . . . contraception, . . . family relationships, . . . and child rearing and education, . . ."

            One of the "zones of privacy" seems still to be a person's home.  For example, in Stanley v. Georgia, 394 U.S. 557, 22 L. ed. [[L.Ed.]]2d 542, 551, 89 S.Ct. 1243 (1969), the United States Supreme Court held:

            ". . . that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. . . . the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home. . . ."

            Likewise in a similar vein, in Atkisson v. Kern County Housing Authority, 130 Cal. Repts. 375 (1976), the California court of appeals recently struck down, partly on constitutional "right of privacy" grounds, a regulation prohibiting any  [[Orig. Op. Page 8]] resident of a public housing unit from living with anyone of the opposite sex to whom the tenant is not related by blood, marriage, or adoption.  We would most certainly assume that this court would have done the same thing with a regulation having the effect of requiring residents of public housing to live with someone of the opposite sex to whom the resident is not so related.

            Again, as we have earlier said, the human rights commission's declaratory rulingitself provides an answer to your first question as it pertains to the applicability of the law against discrimination to the choice of the sex of a roommate ‑ as there is no pertinent distinction between that situation and the choice of sex of a person who rents a room in one's home.  Arguably, on the other hand, choosing the religion of one's roommate does not involve the same societal values as choosing his or her sex.  Nevertheless, it does involve other significant societal and constitutional values, and therefore, in our opinion, also comes within the reasoning of the commission's ruling.

            In short, it appears to us that there is sufficient doubt as to the constitutionality of applying the general rule of the law against discrimination in real estate transactions to the choice of sex or religion of a roommate to require a rejection of that construction under the rule of Soundview Pulp Co. v. Taylor, supra.  The human rights commission's construction of the statute avoids the constitutional issue.  We accept that construction and extend it to the choice of the religion as well as the sex of a roommate.  We therefore conclude (in direct answer to your first question) that it is not contrary to the law against discrimination for a person to discriminate on the basis of age, sex or religion in selecting his or her roommate, even if a rental arrangement is involved.

            Questions (2) and (3):

            Your second question is whether it is contrary to the law against discrimination for a person to specify age, sex or religion in an advertisement for a roommate; and your third question is whether it is contrary to that law for a newspaper to print an advertisement containing such specifications.

             [[Orig. Op. Page 9]]

            For the reasons given in our answer to your first question, it is not contrary to the law against discrimination for a person or newspaper to publish a specification of theage of a roommate.  As to specifications of sex or religion, however, the following additional definition of unfair practices in RCW 49.60.222, supra, must be noted:

            "It is an unfair practice for any person, whether acting for himself or another, because of sex, . . . creed, . . .:

            ". . .

            "(6) To print, circulate, post or mail or cause to be so published a statement, advertisement or sign, or to use a form of application fora real estate transaction, or to make a record or inquiry in connection with a prospective real estate transaction, which indicates, directly or indirectly, an intent to make a limitation, specification, or discrimination with respect thereto; (Emphasis supplied.)

            In general, it is thus contrary to the law against discrimination for a person or newspaper to publish a specification of sex or religion in an advertisement for a "real estate transaction."  But if the selection of a roommate is beyond the scope of this defined term3/ for the purposes of RCW 49.60.222(1),supra, for the reasons explained in our answer to your first question, then it should presumably also be deemed to be outside of its scope as used in RCW 49.60.222(6),supra, as well.  Since the conduct advertised is legal so also, logically, should the advertisement itself be.

            In addition, however, there is another consideration involved which, although it has a somewhat different constitutional base than did the right of privacy factor which concerned us in answering your first question, is of equal legal significance.  In essence, the thrust of this consideration is  [[Orig. Op. Page 10]] that any state regulation of what a person may say or a newspaper may print raises questions of freedom of speech and of the press under the First and Fourteenth Amendments to the United States Constitution.

            The two considerations interact because the legality of what is advertised is a determinative factor in judging the constitutionality of any limitation on speech and the press with regard to the advertisement.  InPittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 37 L. ed. [[L.Ed.]]2d 669, 93 S.Ct. 2553 (1973), for example, the United States Supreme Court (in a 5-4 decision) held that prohibiting a newspaper from using sex-segregated help-wanted columns is not unconstitutional.  One basis for that ruling was that which was advertised, sex discrimination in employment, was itself illegal.  Conversely, the United States Supreme Court has more recently held in two cases that prohibiting the advertisement of lawful activities denies freedom of speech and of the press, in each case distinguishingPittsburg Press because it dealt with the advertising of unlawful activities.  The freedom of speech case is Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,    U.S.    , 48 L. ed. [[L.Ed.]]2d 346, 96 S.Ct.    (1976), where the court struck down a prohibition upon advertising drug prices.  The freedom of the press case is Bigelow v. Virginia, 421 U.S. 809, 44 L. ed. [[L.Ed.]]2d 600, 95 S.Ct. 2222 (1975), in which the court overturned Virginia's prohibition against printing advertisements for legal abortion services available in other states even though abortions were then illegal in Virginia.

            Pursuant to these authorities we think that the same "grave doubt" must be expressed as to whether RCW 49.60.222(6), supra, can constitutionally be enforced against advertising an intention to discriminate because of sex or religion in selecting a roommate as we earlier expressed (for a different reason) with regard to the act of selection itself under RCW 49.60.222(1).  In accordance with the rule ofSoundview Pulp Co. v. Taylor, supra, we therefore must avoid that constitutionally doubtful construction of the statute and, instead, construe it as not prohibiting (1) a person from specifying sex or religion in an advertisement for a roommate or (2) a newspaper from printing an  [[Orig. Op. Page 11]] advertisement containing such specifications.4/