Request By:
Keith D. Duerr
General Counsel
Kentucky Commission on Human Rights
Opinion
Opinion By: JACK CONWAY, ATTORNEY GENERAL; Matt James, Assistant Attorney General
Opinion of the Attorney General
Keith D. Duerr, General Counsel for the Kentucky Commission on Human Rights, ("KCHR"), has requested an opinion of this office on whether a KCHR finding of no probable cause for a discriminatory housing claim precludes a civil action on the claim. We advise that such a finding by KCHR does not preclude a civil action in state or federal court on the claim.
The Fair Housing Act ("FHA"), codified at 42 U.S.C. § 3601 et seq. , prevents discrimination in the sale or rental of housing and other associated practices. To that end, the FHA explains that "an aggrieved person may . . . file a complaint with the Secretary alleging such discriminatory housing practice," and "may commence a civil action in an appropriate United States district court or State court." 42 U.S.C. §§ 3610(a)(1)(A)(i) & 3613(a)(1)(A). These remedies are not exclusive, as 42 U.S.C. § 3613(2) provides that "an aggrieved person may commence a civil action under this subsection whether or not a complaint has been filed under section 3610 (a) of this title and without regard to the status of any such complaint." Accordingly, a person alleging a violation of the FHA may file a complaint with the Department of Housing and Urban Development ("HUD") and file a civil action in state or federal court. The right to bring an action in state or federal court is not affected by the existence or status of a complaint with HUD.
Once a complaint is filed with HUD, HUD is required to "determine based on the facts whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur." 42 U.S.C. § 3610(g)(1). "[I]f the Secretary determines that no reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, the Secretary shall promptly dismiss the complaint." 42 U.S.C. § 3610(g)(3). When the Secretary of HUD has certified a state agency as substantially equivalent to HUD, it is required to refer any complaint within the jurisdiction of that state agency to that agency. See 42 U.S.C. § 3610(f)(1).
KCHR is such a state agency. HUD certified KHCR as a substantially equivalent agency, as KRS 344.600 et seq. is parallel with 42 U.S.C. § 3601 et seq. and empowers KCHR to investigate allegations of housing discrimination, hold administrative proceedings, and award damages and injunctive relief. Just as 42 U.S.C. §§ 3610(a)(1)(A)(i) & 3613(a)(1)(A) permits an aggrieved individual to file a complaint with HUD and file a civil action in state or federal court, KRS 344.600(1)(a)(1) & 344.650(1) provides that "an aggrieved person may . . . file a complaint with the commission alleging a discriminatory housing practice," and "may file a civil action in an appropriate Circuit Court." Indeed, KRS 344.650(3) provides that "an aggrieved person may file a civil action under this section whether or not a complaint has been filed under KRS 344.600, and without regard to the status of any such complaint."
Also, similar to 42 U.S.C. § 3610(g), KRS 344.625(1) provides that, upon receipt of a complaint, "the commission shall determine, based on the facts, whether probable cause exists to believe that a discriminatory housing practice made unlawful under this chapter has occurred or is about to occur." Further, KHCR must "make the determination under subsection (1) of this section not later than the one hundredth day after the date a complaint is filed." KRS 344.625(2) Thus, the procedures requiring KCHR to conduct probable cause determinations track the requirements for HUD to conduct reasonable cause determinations).
A finding of no probable cause under KRS 344.625 does not preclude an aggrieved person from filing a civil action under KRS 344.650. In Ky. Comm'n on Human Rights ex rel. Bogale v. E. Ky. Univ., 988 S.W.2d 41 (Ky. Ct. App. 1999), the court held that an action under KRS 644.650 is an "independent right of action." Id. at 43. Further, "the Kentucky Civil Rights Act was modeled after federal law, and our courts have interpreted the Kentucky Act consistently therewith." Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003). Federal law has consistently held that a finding of no reasonable cause by HUD does not pre-clude a civil action. See Marinoff v. H.U.D., 892 F. Supp. 493, 497 (S.D.N.Y. 1995) ("§ 3613(a)(2) allows a complainant to proceed in federal court against the perpetrator of the discriminatory practice(s) even if HUD determines that no 'reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur.'"); see also Taylor v. Harbour Pointe Homeowners Ass'n, 690 F.3d 44, 51 (2d Cir. 2012) ("DHR determined that there was no probable cause to support Taylor's housing discrimination claim . . . . These conclusions did not preclude further litigation . . . ."); Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 546 n. 7 (3d Cir. 2006) ("HUD issued a Determination of No Rea-sonable Cause dismissing Turner's complaint . . . . HUD indicated that its decision did not foreclose her from filing a civil action in federal district court"). 1 As federal law is clear that a finding of no reasonable cause by HUD does not pre-clude a civil action, and Kentucky law follows the federal law, we advise that a no probable cause finding by KCHR, under KRS 644.625, does not preclude a civil action, under KRS 644.650.
In summary, the Kentucky law of housing discrimination follows and is substantially equivalent to the FHA, and a finding of no reasonable cause by HUD does not preclude a civil action under the FHA. Accordingly a finding of no probable cause by KCHR does not preclude an independent civil action under KRS 644.650.
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