Harassment

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Although I have written about it a few times before (quid pro quo and hostile environment), given the current cultural climate I definitely feel that it bears repeating—sexual harassment touches all aspects of life, including the workplace, and should be treated seriously.  The prevalence and popularity of sexual harassment cases in the news makes this issue especially pertinent for landlords, as seen by the hefty $600,000 Department of Justice settlement highlighted in my previous post.  Therefore, property managers and landlords need to be hyper-vigilant about ensuring that it is not occurring at their communities or with their employees.

To review, HUD has issued regulations that explicitly prohibit both quid pro quo harassment and hostile environment.  Obviously, this means that landlords and property management companies need to avoid making normal services, practices, or policies contingent on the resident or prospective resident engaging in certain behavior.  However, it also means that landlords and property management companies must ensure that their employees and residents are not creating a hostile environment at the properties.

So what’s the bottom line?  Well, even though I’ve written about it extensively, it cannot be overstated—it is the duty of a landlord and management company to take proactive steps to stamp out sexual harassment both in the workplace and at their properties.

In my previous post, I discussed the Department of Housing and Urban Development’s (HUD) prohibition on sexual harassment.  Although it seems patently obvious that no landlord should be sexually harassing his or her residents, apparently some people remain oblivious. And as a recent settlement by the Department of Justice (DOJ, the government organization that prosecutes housing discrimination claims in court) reveals, HUD and the DOJ take sexual harassment very seriously.

On July 10, 2017, the DOJ announced that it reached a $600,000 (!) settlement with the owners and former managers of more than 70 residential properties in the Morganton, West Virginia area.  The settlement was in resolution of allegations that the property manager sexually harassed both female residents and prospective residents.  In addition to the $600,000 (!) in damages and civil penalties, the offending property manager had to transfer his ownership shares in these properties and relinquish his role in their management.  The property manager at issue here was also enjoined from engaging in any property management, rental management, or maintenance responsibilities at the rental properties, as well as from entering the premises or having any contact with current or former residents of the rental property.

This settlement amount is significantly higher than a typical fair housing case—however, the conduct by the property manager was particularly repugnant.  The matter began when four female residents filed fair housing complaints with HUD, alleging sexual harassment against the property manager.  During the course of its investigation, HUD determined that there was reasonable cause to believe that the property manager sexually harassed multiple female residents and prospective residents over a nine year period, including inappropriate touching and groping, conditioning tangible housing benefits to female tenants in exchange for performance of a sex act (quintessential quid pro quo harassment), making unwanted sexual comments and advances, entering the homes of female residents without permission to sexually harass them, and taking or threatening to take adverse action against female tenants when they refused or objected to his sexual advances.  As Acting Assistant General Tom Wheeler of the DOJ’s Civil Rights Division aptly stated, “[i]t is unacceptable that a woman should have to endure sexual harassment by her landlord in her own home,” and, accordingly, this settlement was intended to “send[] a strong message that the Civil Rights Division will aggressively pursue those who engage in this egregious conduct.”

So what’s the bottom line?  I cannot say this enough—as a property management company or owner, you need to have strong policies and training programs in place to prevent harassment, and you have to act promptly and proactively to end harassment whenever and wherever it occurs.

In my last post, I discussed the Department of Housing and Urban Development’s (“HUD”) Rule 100.600 (the “Rule”), published by HUD last September.  In the post, I focused on that Rule’s prohibition of hostile environment harassment, and in my humble opinion, I believe that aspect of the Rule created a standard of liability that may come as a surprise to many landlords.  The Rule also contained another important aspect, prohibition quid pro quo harassment, which I will focus on in this post.

So what is quid pro quo harassment?  The official definition per HUD Rule Section 100.600(A)(1) is an “unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to: The sale, rental or availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of services or facilities in connection therewith; or the availability, terms, or conditions of a residential real estate-related transaction.”  And what does that mean in plain English?  Essentially, as a landlord, you cannot condition the availability of any of your normal services, practices, or policies—or the availability or rental terms of the unit itself—on the resident or prospect engaging in certain conduct.  As a couple of obvious examples, you (or your employees) cannot condition a maintenance request on a resident performing sexual favors, nor can you condition the availability of an apartment on a prospect performing sexual favors.

Similarly to hostile environment harassment, as a landlord you need to ensure that you and your employees are not engaging in any type of quid pro quo harassment.  Common sense, right?  But you also need to make sure that your residents are not engaging in this type of behavior, because you (as a landlord) can be directly liable if you know (or should have known) of the harassment and fail to take prompt action to stop it.

So what’s the bottom line?  Well, this part of HUD Rule 100.600 seems pretty intuitive, and I feel pretty confident that most landlords know that they should not be engaging in this type of behavior. I would, however, advise that you need to act quickly to stop this behavior if you are aware of occurrences between residents.  I stated this in my last post, but it bears repeating—simply put, always act promptly to stop harassment, wherever and whenever it occurs.

It occurred to me recently that I have been remiss in not writing about a very important rule that the Department of Housing and Urban Development (HUD) published last September.  HUD Rule 100.600 profoundly impacts landlords in two primary ways: 1) it creates liability for landlords who fail to take action to correct a hostile environment; and 2) it prohibits “quid pro quo” harassment.  This blog post will focus on the first prohibition, hostile environment harassment.  In a subsequent post, I will address “quid pro quo” harassment.

HUD Rule Section 100.600(A)(2) defines hostile environment harassment as “unwelcome conduct that is sufficiently severe or pervasive to interfere with the availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection with the sale or rental; or the availability, terms, or conditions of a residential real estate-related transaction.”  In other words, the Rule acts to prohibit harassment or bullying based on a protected characteristic.  Whether hostile environment harassment exists depends on the totality of the circumstances, looking at factors such as “the nature of the conduct, the context in which the incident(s) occurred, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the persons involved.”  Basically, in determining whether hostile environment harassment has occurred, a court will review the foregoing factors from the standpoint of a “reasonable” person in the aggrieved person’s position.  Hopefully, a review of these factors will help to distinguish minor disagreements between individuals from actual harassment.

Obviously, as a landlord, you need to ensure that your employees are not creating a hostile environment for any of the residents.  But do you need to care if one resident is harassing another resident? Yes. Yes you do.  Under the new rule, you as the landlord can be directly liable for resident-on-resident harassment if you knew (or should have known) of the harassment and you fail to take prompt action to end the harassment.  So, if an employee of a management company knows that one resident is harassing another resident and the management company fails to take corrective action, then the management company will be liable under the new HUD rule (presuming, of course, that the management company has the authority to stop the harassment).

Interestingly enough, and following a theme that I wrote about earlier, HUD also stated in the preamble to the rule it “reaffirms its view that under the Fair Housing Act, discrimination based on gender identity is sex discrimination. Accordingly, quid pro quo or hostile environment harassment in housing because of a person’s gender identity is indistinguishable from harassment because of sex.”

So what’s the bottom line?  Well, in all honesty, it is probably common sense.  Landlords and management companies should act promptly to stop any and all harassment on the property, whether it is committed by one of their employees, or by a resident.  Simply put, always act promptly to stop harassment, wherever and whenever it occurs.