The Seventh Circuit has revived a fair housing suit by condominium owners against their condo association.

When a three-judge panel considered the case last year, a majority held that the Fair Housing Act does not apply to post-acquisition conduct, over a dissent by Judge Diane Wood. (Bloch v. Frischholz, 533 F.3d 562 (7th Cir. 2008).)

But the court, en banc, unanimously held on Nov. 13 that, in some circumstances, it can.

At the center of the case is a mezuzah (the plural is muzuzot), a small rectangular box containing parchment inscribed with passages from Deuteronomy, which observant Jews are required to affix to the exterior doorposts of their homes.

Lynne, Helen and Nathan Bloch are Jewish residents of three units in the Shoreline Towers Condominium in Chicago. As observant Jews, they displayed mezuzot outside their doorposts for decades without objection.

But in 2001, the condo association adopted “Hallway Rules,” prohibiting any objects being placed outside unit doors. In 2004, the association began stricter enforcement of the law, removing all objects outside units, including mezuzot.

The association repeatedly removed the mezuzot placed by Lynne Bloch outside her door, and she repeatedly replaced them. After the death of Lynne’s husband, the association even removed a mezuzah during the funeral, although it left a coat rack and table that had been placed in the hallway for the shiva (a seven day mourning period).

After returning from the funeral with her rabbi and finding the mezuzah gone, Bloch brought suit under the FHA. The district court granted summary judgment in favor of the association, and the Seventh Circuit affirmed, with Judge Diane P. Wood dissenting.

The majority held that while the FHA forbids discrimination, it does not impose any requirement that religion be accommodated, and concluded that making an exception to a facially neutral rule for mezuzot would be an accommodation not required by the FHA.

In May, the court reheard oral arguments en banc, and this time, the court held that the FHA permits the claims, in an opinion by Judge John D. Tinder.

However, the court first held that 42 U.S.C. 3604(a) does not permit relief, because it is limited to refusals to sell or rent.

But, the court concluded that the Blochs could assert a claim under subsection 3604(b).

Subsection 3604(b) makes it unlawful “To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.”

The court concluded that, since the rules of the condo association are “conditions,” the statute prohibits the association from discriminating through its enforcement of those rules.

The court also noted that HUD regulations interpret the statute to prohibit limiting the use of privileges associated with a dwelling because of race or religion.

The court further held that the Blochs could assert a claim under sec. 3617, which makes it unlawful “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or

enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.”

The court concluded that sec. 3617 must be interpreted more broadly than sec. 3604, and the other underlying statutes, or else it would be entirely duplicative.

The court elaborated, “For instance, if a landlord rents to a white tenant but then threatens to evict him upon learning that he is married to a black woman, the landlord has plainly violated sec. 3617, whether he actually evicts the tenant or not.”

Turning to the facts of the case, the court framed the issue as whether the Blochs produced evidence of discrimination.

While mere enforcement of a facially neutral rule would not violate the FHA, discriminatory enforcement of it would. The court found that sufficient evidence of intentional discrimination, as opposed to neutral enforcement, was presented by the Blochs to survive summary judgment.

First, the court concluded that the change in the rules of enforcement that occurred in 2004 could be viewed as an intentional reinterpretation of the rule to burden the Blochs’ religious practices.

Second, there was evidence of animus between the Blochs and Edward Frischholz, the president of the condo association. Frischholz scheduled meetings after sunset on Friday, despite knowing that the Blochs would not be able to attend for religious reasons.

Most significantly, he ordered the mezuzah removed during the shiva after the death of Lynne’s husband, despite an agreement that they could keep it up during the mourning period.

In addition, the rule was selectively enforced in that only the mezuzah was removed, while the coat rack and table remained in the hallway.

“Selectively interpreting ‘objects of any sort’ to apply only to the mezuzah but not to secular objects creates an inference of discriminatory intent.”

In light of this evidence of discriminatory intent in enforcing the otherwise-facially neural rule, the court held that a jury could reasonably conclude that the association discriminated against the Blochs in violation of the FHA, and reversed.