Fourth Circuit Holds Falls Church Owner Liable For Sex Discrimination by Property Manager

The Fourth Circuit Court of Appeals, in October, upheld a $5,000 damage award for sex discrimination and reversed and remanded the case to hold the owner liable for the acts of the property manager.

The jury had returned a verdict against the professional realtor, who was ordered to pay the damages, but had cleared the owner of all charges and liabilities. The complainant's appeal was upheld by the Circuit Court which said the owner could not so easily "dispose of his duty to prevent sexual discrimination in renting ...property which he owned."

The complainant, Darlene Walker, is a single mother with one son. She is an employee of the Central Intelligence Agency. Ms Walker contacted Town and Country properties about rental units in the Falls Church, Virginia area. She visited a property owned by Frank B. Whitesell and managed by Constance A. Crigler.

The listing described the property as "a nice 2BR (two bedroom)" apartment "ideal for two men." The listing said the apartment had "3 guys" as tenants.

In Response to Housing Discrimination Suits

In January 1989 the owner became aware of housing discrimination suits against landlords. On the advice of his attorney he sent his property manager the following instruction:

"No one who meets all other qualifications for tenancy on one of my properties is to be denied the right to rent such properties solely because of discrimination on the basis of race, creed or physical impairment." While gender was not included, the property manager insisted the letter meant that all federal anti-discrimination provisions should be met.

Ms. Walker was helped by John Moore of Town and Country Properties in her effort to get an apartment. She filled out an application for an apartment owned by Whitesell at 124 Falls Avenue.

Moore testified that Crigler said in no uncertain terms that she would not rent to a woman. She expressed her policy of not renting to a woman in any circumstances.

Complainant called Crigler after Moore relayed his conversation with the property manager. Complainant said Crigler told her she would not rent to a single woman. She said she had experienced problems with the boyfriend of a single woman in the past. Complainant asked Crigler if she was speaking for the owner, and she said she was.

Between August 10, and October 19, 1989, the complainant filed several administrative, local and state discrimination suits against Town and Country officials, Crigler, and Whitesell.

The jury found for the complainant but fully exonerated Whitesell of any responsibility for the discriminatory acts of his employee.

Following the trial, the complainant filed a motion for a judgment notwithstanding the verdict and for a new trial. She also asked for a declaratory judgment and injunctive relief, asking the court to enter judgment against Whitesell, arguing that Crigler, as a matter of law, was an agent of Whitesell who acted within the scope of her authority. The District Court denied all motions. Soon thereafter Crigler filed a bankruptcy petition and the court discharged Crigler's $5,000 debt.

The Fourth Circuit Court held that the District Court's conclusion that Whitesell was not liable for damages, was based on an erroneous theory of law and that reversal was required.

Duty of Owner Not to Discriminate is Non-delegable

The Circuit Court distinguished housing cases from other situations where a principal might be shielded from liability for the acts of his agent. The Court said, "Whitesell could not insulate himself from liability for sex discrimination in regard to living premises owned by him and managed for his benefit merely by relinquishing the responsibility for preventing such discrimination to another party. Here we adopt the general rule applied by other federal courts that the duty of a property owner not to discriminate in the leasing or sale of that property is non-delegable."

[Walker v. Crigler, 4th Cir No. 91-1542, 10-5-92.]