The New York Times: Discrimination is hard to prove, even harder to fix

The New York Times, July 22, 2019: Discrimination is hard to prove, even harder to fix

Over the past year or so, I have reported on several suits involving older adults’ complaints of discrimination based on age, sex and disability status, all of which are prohibited under federal law.

Plaintiffs have won some victories: A preliminary injunction, for example, allowed an elderly wheelchair user back into her Manhattan assisted living facility, although perhaps temporarily. But older plaintiffs have encountered defeats as well, including the dismissal of a suit brought by a married couple after a retirement community in Missouri rejected them because both spouses are women.

Mary Walsh and Beverly Nance had planned carefully for their later lives. After investigating several options, in 2016, they put down a deposit at Friendship Village in suburban St. Louis, Missouri. The facility declined their application, mailing to the couple a copy of its cohabitation policy defining marriage as “the union of one man and one woman, as marriage is understood in the Bible.”

Last year, the women brought suit in federal court alleging sex discrimination in violation of the federal Fair Housing Act. If either spouse had been a man, their lawyers argued, the community wouldn’t have turned them away.

In January, a district judge dismissed the case. She cited a ruling in 1989 that discrimination against “homosexuals” is not prohibited under Title VII of the Civil Rights Act of 1964. She noted other cases finding that discrimination of this sort was not prohibited by the Fair Housing Act, either.

Walsh and Nance appealed. Then the Supreme Court agreed to hear three cases this term involving alleged employment discrimination against L.G.B.T. plaintiffs. The Missouri case is on hold pending that ruling.

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