Avoiding Discrimination Based on Sex in Housing

Avoiding Discrimination Based on Sex in the Provision of Housing

 

 

Federal law did not prohibit sex discrimination in housing until 1974, when a non-controversial provision of the Housing and Community Development Act of 1974 added “sex” as a prohibited basis of discrimination to the Fair Housing Act (Title VIII of the Civil Rights Act of 1968).

 

The protection was initially intended to prevent housing operators, developers, property managers, etc., from leasing, selling or negotiating with men and women on an unequal basis. For example, discounting a woman’s income when evaluating the ability to pay for housing is prohibited. In HUD v. Baumgardner (1990), the court stated that Congress intended the Fair Housing Act (FHA) ban on sex discrimination “to end housing practices based on sexual stereotypes.”

 

It should be noted that while fair housing law generally prohibits expressing a preference for or against a protected characteristic when advertising, the Federal Register, 3309, January 23, 1989, provided an exception for sex “where the sharing of living areas is involved.” An exception also exists for dorms at educational institutions.

 

Congress has provided limited exemptions from the FHA for single family home owners and owners who live in small apartment buildings (four or fewer units). Persons who meet an exception may discriminate on the basis of sex (the Civil Rights Act of 1866 only prohibits discrimination on the basis of race). However, state or local law may not provide for an exception and the Equal Credit Opportunity Act prohibits sex discrimination in the provision of mortgages and other forms of credit in housing.

 

While the protections against sex discrimination have been used to prevent sexual stereotyping in the provision of mortgages, housing sex harassment cases are becoming more common.

 

Most of the legal principles used in housing harassment cases derive from employment law. Title VII of the Civil Rights Act of 1964 covers sexual harassment in the workplace. While Title VIII of the Civil Rights Act of 1968 includes “sex” as a characteristic protected from discrimination in the provision of housing, there is no specific mention of “sexual harassment.” However, sexual harassment in the context of housing may be even more devastating than workplace harassment, since home is more central to lives than is the workplace. The first major study on the issue of sexual harassment in housing is a 1987 Wisconsin Law Review article, “Home is No Haven: an Analysis of Sexual Harassment in Housing.” Author Regina Cahan stated “When sexual harassment occurs at work, at that moment or at the end of the workday, the woman may remove herself from the offensive environment. She will choose whether to resign from her position based on economic and personal considerations. In contrast, when the harassment occurs in a woman’s home, it is a complete invasion in her life. Ideally, home is the haven from the troubles of the day. When home is not a safe place, a woman may feel distressed, and often, immobile.”

 

The first fair housing decision relative to sexual harassment was Shellhamer v. Lewallen (1983). The plaintiffs were a married couple who were evicted because the wife refused to pose for nude pictures and have sex with the landlord. Having no real guidance on how to proceed, the Magistrate in the case turned to the Title VII guidance, which already recognized “quid pro quo” and “hostile environment” theories of liability in the workplace. The landlord had made two sexual requests over a three to four month period; the magistrate determined that this did not rise to the level of a hostile environment. However, since a quid pro quo claim does not require persistent conduct, this test was met. This was due to the fact that the decision to evict was based on Mrs. Shellhamer’s refusal to give in to the requests.

 

While sexual harassment is illegal, the law does not prohibit “genuine but innocuous” differences in the way men and women interact with members of the same sex and the opposite sex. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not amount to discriminatory changes in the terms and conditions of housing.

 

Context

 

“Context” is an important element in determining whether or not sexual harassment has occurred. The Supreme Court used the following example of how context must be considered: If a pro football coach smacks one of his players on the butt, it would not be considered sexual harassment. But, if that coach smacks his secretary (whether female or male) on the butt, it could be considered harassment.

 

In addition to examining context, the behavior must also be “unwelcome.” Behavior that is welcomed cannot be harassing behavior.

 

There are two general types of sexual harassment in housing (and employment); “quid pro quo,” and hostile environment.

 

Quid Pro Quo Harassment

 

Quid pro Quo (“this for that”),or “conditional tenancy” harassment is the most serious form of sexual harassment. It essentially conditions the provision or a benefit of housing on the performance of sexual favors. A fairly recent case, U.S. v. Barnason (May 2012), illustrates some of the components of a conditional tenancy case. In this case, the owners and managers of three Manhattan apartment complexes agreed to pay more than $2 million to six women who were harassed by the superintendent (who was a Level 3 Registered Sex Offender) of the properties. Actions that the superintendent took against the women included:

• Entering apartments while drunk – demanding sex;
• Unwelcome groping and fondling;
• Unwanted verbal sexual advances;
• Demanding sex in return for rent reductions; and
• Taking adverse action against women who refused.

In addition to the monetary penalty against the owner, the offending employee has been banned for life for working at a residential property. Conditional tenancy claims generally require only one incident to rise to the level of sexual harassment.

 

A more recent case provided the largest settlement in a fair housing sexual harassment action. In U.S. v. Wesley (July 2015), the respondents settled for $2.7 million. In this case, two employees of a local housing authority (the Section 8 Coordinator and the Housing Inspector), were accused of sexually harassing female voucher holders. The harassment included making unwanted sexual comments, sexual touching, and taking adverse action against women who refused their advances. The employees undertook these actions while exercising their authority on behalf of the Agency, and the Agency failed to take reasonable preventive or corrective measures. For this reason, the Agency was found to be “vicariously liable” for the actions of the employees. The two employees, as in the Barnason case above, have been banned from real estate for life.

 

Hostile Environment

 

Hostile environment is defined as unwelcome behavior of a sexual nature that creates an intimidating or hostile housing environment. Trivial or isolated incidents do not rise to the level of harassment; the actions must be severe and pervasive.

 

In determining whether a hostile environment exists, courts and judges will examine all circumstances, including:

• Frequency;
• Severity; and
• Whether the actions are physically threatening or humiliating or just a mere utterance.

 

Courts have ruled in favor of defendants when inappropriate behavior did not meet this standard. In Hall v. Meadowood Limited Partnership (2001), a court ruled that though the defendant’s conduct was “crude or inappropriate,” the fact that it occurred “only occasionally and was not severe (and therefore) did not rise to the level of actionable sexual harassment.”

 

HUD published a proposed rule in the October 21, 2015, Federal Register titled, “Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act.” In addition to formalizing standards for assessing claims of harassment under the FHA, the regulation is intended to clarify when housing providers may be held directly or vicariously liable under the FHA for illegal harassment.

 

Owners and managers of housing must understand how the rules relating to discrimination based on sex apply to them, and should develop specific policies to limit the potential for such claims. Following are recommendations for the steps that owners and property management firms should take to minimize the risk of discrimination claims based on sexual harassment.

 

1. Establish a Zero-Tolerance Policy Against Sexual Harassment. This should be a written policy that makes it clear that any type of sexual harassment will not be tolerated and will result in disciplinary action. The policy should include examples of what constitutes sexual harassment, including
   1. Explicitly or implicitly suggesting sex in return for living in the community, receipt of services, or otherwise related to the terms and conditions of tenancy;
   2. Suggesting or implying that failure to accept a date or sex could adversely impact a tenant’s residency;
   3. Initiating unwanted physical contact, such as touching, grabbing, or pinching;
   4. Making sexually suggestive or obscene comments, jokes, or propositions; and
   5. Displaying sexually suggestive photos, cartoons, videos, or objects.
2. Pay close attention to employee hiring and training. All employees should receive regular (at least annual) training on fair housing (including sexual harassment). Employers should also check references for new employees, and do criminal record checks (note the Barnason case above).
3. Adopt specific rules for employees who have access to units. Such employees should only enter units for repairs, maintenance, or in the case of emergencies, and except for emergencies, should never go in unless reasonable notice was given. If residents are home, staff should not enter a unit until the resident lets them in and staff should never enter a unit if the only persons in the unit are children (under age 18). And, under no circumstance, should an employee fraternize or establish a social relationship with residents.
4. Never ignore a sexual harassment complaint. All such complaints should be investigated as soon as possible, and corporate counsel should be consulted regarding how to proceed.
5. If a complaint is justified, take immediate action to halt the harassment. If the harasser is an employee, take appropriate disciplinary action, such as reprimand, suspension, or termination – whatever is warranted. If the complaint is about a vendor, seek legal advice on how to proceed – but proceed; never ignore the issue.
6. Finally – never retaliate against anyone complaining about sexual harassment. Under the FHA, it is illegal to “coerce, intimidate, threaten, or interfere with” anyone who exercises their rights under fair housing law.