Beginning on October 14, 2016, the U.S. Department of Housing and Urban Development (“HUD”) will be enforcing new fair housing regulations that involve claims of harassment on the basis of race, color, religion, national origin, sex, familial status, or disability. The changes include: (1) specifications on how HUD will evaluate complaints of quid pro quo (“this for that”) harassment and hostile environment harassment under the Fair Housing Act; and (2) clarifications on the operation of traditional principles of direct and vicarious liability in the Fair Housing Act context.
Community associations were already subject to the provisions of the Fair Housing Act, but the new regulations will likely expand their involvement in neighbor-to-neighbor issues. Therefore, associations need to check their insurance policies for proper coverage of administrative and/or judicial proceedings stemming from a HUD complaint, and most importantly, they need to ensure their boards/managing agents are prepared to recognize and adequately handle potential Fair Housing Act issues.
Quid Pro Quo and Hostile Environment Harassment
Although “quid pro quo harassment” and “hostile environment harassment” were used in prior versions of the fair housing regulations, the terms themselves were never formally explained and/or defined. As such, they were predominantly applied in cases of sexual harassment, especially in cases of quid pro quo harassment (i.e., when housing providers condition housing or housing-related services or transactions on sexual conduct). The new regulations not only define these terms, they also clarify that either type of harassment can exist on the basis of race, color, religion, national origin, sex, familial status, or disability.
“Quid pro quo harassment” occurs when a person is subjected to an unwelcome request or demand because of the person’s protected characteristic (i.e., race, color, religion, national origin, sex, familial status, or disability), and going along with the request or demand is either explicitly or implicitly made a condition related to the person’s housing. As stated above, claims of quid pro quo harassment are most typically associated with sex, but they may be established on the basis of other protected characteristics. For example, quid pro quo harassment occurs when a housing provider conditions a tenant’s continued housing on the tenant submitting to unwelcome requests for sexual favors.
“Hostile environment harassment” occurs when, because of the person’s protected characteristic, a person is subjected to unwelcome conduct that is so severe or pervasive that it interferes with or deprives the victim of his or her right to use and enjoy the housing. Whether a hostile environment has been created would require an assessment of the “totality of the circumstances,” which would include: the nature of the conduct; the context in which the conduct took place; the severity, scope, frequency, duration, and location of the incident(s); and the relationship of the persons involved. Assessing the context would involve considering factors such as whether the harassment was in or around the home; whether the harassment was accomplished by use of special privilege by the perpetrator, such as gaining entry to a home through the landlord-tenant relationship; whether a threat was involved; and whether the conduct was likely to or did cause anxiety, fear, or hardship.
The new regulations also state that harassment can be written, verbal or other conduct, and it does not require physical conduct. Forms of unwelcome conduct may include, but are not limited to, threatening imagery such as a swastika or cross burning; damaging property; physical assault; threatening physical harm to an individual, a family member, an assistance animal, or a pet; or impeding the physical access of a person with a mobility impairment. Unwelcome conduct may also include taunting related to a person’s disability, or exhibiting hostility toward someone who does not act in a manner that fits gender-based stereotypes.
As shown above, the types of behavior that may constitute “harassment” should be fairly obvious. This is why, of the two upcoming changes to the fair housing regulations, defining quid pro quo and hostile environment harassment should be the lesser concern for community associations.
Direct and Vicarious Liability
The standards for liability under the new fair housing regulations are based on more traditional legal principles of tort liability. In other words, one may be liable for either an affirmative act of discrimination or an omission (i.e., not doing something) when one knows or should know discrimination is taking place. The new concern for community associations is related to omissions.
Under the new fair housing regulations, a person would be directly liable for: (1) failing to take prompt action to correct and end a discriminatory housing practice by that person’s employee or agent when the person should have known of the discriminatory conduct; or (2) failing to take prompt action to correct and end harassment by a third party when the person knew or should have known of the harassment. This second part is the biggest concern because, for example, a managing agent or board member who knew or should have known of a resident harassing another resident may be held liable under the new rule.
Conclusion
In sum, community associations will need to be more proactive than ever in their vigilance and actions to thwart members who are harassing other members, guests or invitees. It will no longer be enough to simply suggest that the victim seek help from law enforcement-there will now be an affirmative duty imposed on associations to take some form of action. To illustrate, associations may notify their legal counsel, send out cease and desist letters, or in some instances, seek resolutions through arbitration, mediation and/or litigation (depending on the association’s governing documents).
Community associations will also need to develop policies on how to deal with harassment-type conduct under its purview. This will probably involve reviewing nuisance provisions contained in the declarations, drafting a new standardized violation letters for this type of conduct, and establishing other protocols for more escalated scenarios. Although HUD has not yet begun enforcing the new fair housing regulations, community associations and their boards/managing agents will likely be cleared for liability as long as they can show good faith efforts to end discriminatory behavior within their communities.