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Religious Accommodations in Housing after Bostock<\/em><\/strong><\/p>\n Josh Halpern and David Yolkut<\/strong><\/p>\n The Supreme Court held in Bostock v. Clayton County<\/em> that Title VII of the Civil Rights Act prohibits discrimination based on homosexuality or transgender status. Dozens of religious organizations<\/a>, universities<\/a>, and advocacy<\/a> groups<\/a> had warned the Court that a ruling for the employees would cast a cloud over religious freedom. The Court was thus careful to note that the Religious Freedom Restoration Act would offer a protective shield to those with sincerely held religious beliefs. Yet, Justice Alito\u2019s principal dissent still offered an ominous prediction: the majority\u2019s decision \u201cwill threaten freedom of religion.\u201d<\/p>\n In truth, Bostock\u2019s full implications for religious freedom have proven complex. Our firm recently litigated a case in which we argued\u2014perhaps counter-intuitively, but correctly\u2014that Bostock\u2019s textualist logic actually compels religious accommodations under the federal fair housing laws. Here is the backstory.<\/p>\n Our clients were a group of observant Jews\u2014all elderly and many disabled\u2014who live in a 32-story high-rise building in Fort Lee, New Jersey. None could travel down from their apartments easily on the Sabbath: their physical disabilities prevented them from descending the stairs, and their sincere religious beliefs barred them from pushing the elevator buttons. For a time, the building accommodated the disabled-faithful by placing certain elevators in \u201cSabbath mode.\u201d When activated, these \u201cSabbath elevators\u201d stop automatically at preprogrammed floors, allowing Orthodox Jews to ride up and down on the Sabbath without compromising their faith. And when building later terminated the program, we filed a civil rights lawsuit<\/a> on behalf of the residents to have it reinstated. Kurlansky et al v. 1530 Owners Corp. et al<\/em>, 2:21-cv-12770 (D.N.J.). The suit included multiple allegations of religious discrimination, as well as a failure to accommodate disability, and it settled quickly after briefing on our preliminary injunction motion.<\/p>\n One of our various arguments in the case was that the Fair Housing Act compels accommodations for impairments that flow from the conjunction of faith and disability. On a cold read of the statute, one could argue the point either way. The FHA makes it unlawful \u201cto discriminate \u2026 because of\u201d religion or disability, 42 U.S.C. 3604(b), (f)(2)(A), and it specifically defines disability discrimination to \u201cinclude[] \u2026 a refusal to make reasonable accommodations.\u201d\u00a0 42 U.S.C. 3604(f)(3)(B). But there is no textual analogue for religion, and the statute says nothing explicit about a duty to accommodate religious practice. As Judge Easterbrook once explained, \u201cThe Fair Housing Act requires accommodation \u2014 but only of handicaps.\u201d Bloch v. Frischholz<\/em>, 533 F.3d 562, 565 (7th Cir. 2008) (Easterbook, J.), rev\u2019d on rehearing<\/em>, 587 F.3d 771 (7th Cir. 2009) (en banc).<\/p>\n Our case thus raised a question of first impression in the federal courts: what happens when the impairment flows from a combination of religion and disability, as it did for our clients? Before Bostock<\/em>, one could plausibly argue that, although the statutory text doesn\u2019t speak directly to that issue, Congress\u2019s primary goal was plainly to accommodate disability, not an admixture of disability and religion. (Unsurprisingly, \u201cSabbath elevators\u201d make no appearances in the relevant legislative history.) But Bostock<\/em> takes that argument off the table.<\/p>\n Bostock<\/em> proceeded from the assumption that \u201cTitle VII\u2019s \u2018because of\u2019 [language] incorporates \u2026 but-for causation.\u201d Bostock v. Clayton County<\/em>, 140 S. Ct. 1731,\u00a0 1739 (2020). That standard can be \u201csweeping,\u201d the Court explained, because many events \u201chave multiple but-for causes.\u201d Id.<\/em> For example, \u201c[w]hen an employer fires an employee because she is homosexual or transgender, two causal factors may be in play\u2014both the individual\u2019s sex and something else (the sex to which the individual is attracted or with which the individual identifies).\u201d Id.<\/em> at 1742. But the Court was clear that \u201cTitle VII doesn\u2019t care.\u201d Id.<\/em> \u201cOften in life and law two but-for factors combine to yield a result\u201d that neither condition could achieve on its own. Id.<\/em> at 1748. But \u201cso long as the plaintiff\u2019s sex was one but-for cause \u2026 , that is enough to trigger the law[\u2019s protections].\u201d Id.<\/em> at 1739.\u00a0 Because the FHA\u2019s text parallels Title VII in all of the ways that matter, Bostock\u2019s <\/em>core insight compels accommodations for the disabled faithful:<\/p>\n\n