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In Bangerter v. Orem City, the Tenth Circuit addressed alleged violations of the Fair Housing Act based on handicap discrimination. The court held that a mentally retarded man, who resided at a "group home," had standing to protest a local ordinance and state statute which allegedly discriminated against him by requiring 24-hour supervision and a Community Advisory Committee to report on the home.
In 1989, Bangerter was placed in a "group home" for the mentally handicapped in Orem City (Orem), UT. In 1990, Orem enforced a city ordinance which required the home's operator, RLO, to obtain a conditional use permit for the home. RLO applied for a permit, which was issued on the condition that they: (a) ensure proper supervision of residents on a 24-hour basis; and (b) create a Community Advisory Committee for neighborhood concerns and complaints. A year later, Bangerter was moved from Orem and sued alleging that the conditions allowed by a state statute and imposed by the ordinance were in violation of the Fair Housing Act. He also alleged that the conditional use permit application process violated the Act. The district court dismissed both causes of action and Bangerter appealed only the first cause of action.
The Tenth Circuit found Bangerter had standing to challenge the requirements of the permit, but not to challenge the permit process. Standing requires: (1) actual or threatened injury; (2) a causal connection to the conduct complained of; and (3) redressability of the injury by the requested relief. The court found that the Fair Housing Act prohibits "imposition of discriminatory terms or conditions because of a handicap of a person . . . residing in a dwelling." The court added that because Bangerter no longer lived in Orem, he could only recover for past harm, but found sufficient allegations regarding past injury to give standing on the two requirements of the permit. These allegations included complaints of discrimination against handicapped people, invasion of privacy, and restriction of ability to enjoy independent living.
After reviewing the record from the district court, the Tenth Circuit found that Bangerter's claim should be considered as one for intentional discrimination. To show intentional discrimination, a plaintiff need not prove malice or discriminatory animus, but must show that a protected group has been subjected to explicitly differential treatment. The court found that the ordinance facially singled out the handicapped and applied different rules to them. The court also found that because Bangerter challenged facially discriminatory actions and not the effects of facially neutral actions, the relevant characterization of the discrimination was "disparate treatment" rather than "disparate impact." Disparate treatment involves differential treatment of similarly situated persons or groups. The court concluded that Bangerter made out a prima facie case of discrimination, reversed the dismissal, and remanded the case.
The Tenth Circuit outlined issues for consideration on remand. First, Bangerter must support the claim that his group home was subjected to conditions not imposed on non-handicapped group homes in Orem. Second, the district court must consider Orem's justifications for its discriminatory practices, including public safety and benign discrimination. Such restrictions must be reasonable and narrowly tailored to reach individuals, rather than stereotypes of groups.
Bangerter v. Orem City, 46 F.3d 1491 (10th Cir. 1995).