How to Limit Liability for Tenant-on-Tenant Harassment

While the current law is unsettled, for landlords there’s much more at stake than what the law requires.

 

The Coach’s mission is to provide landlords and other community owners with a game plan to train their managers, supervisors, leasing agents, and other representatives how to spot and steer clear of rental and management practices that can lead to liability for housing discrimination. Occasionally, however, the focus switches to training owners themselves. Training the trainer becomes particularly imperative when the topic involves a novel, rather than a familiar, liability risk.

Such is the case with tenant harassment. “Harassment has been a compliance challenge for years,” you may be thinking. But this month’s lesson deals with a new and emerging form of harassment that traditional fair housing training doesn’t typically address—namely, discriminatory harassment committed by one tenant against another.

We’ll explain the current state of the fair housing law governing whether landlords can be liable for tenant-on-tenant harassment. We’ll outline the seven things you can do to manage these liability risks, and we’ll give you a tool, a Model Anti-Harassment Policy for Tenants, that you can use to implement these measures. We’ll finish the lesson with a Coach’s Quiz so you can see how well you learned the material.   

WHAT DOES THE LAW SAY?

The federal Fair Housing Act (FHA) bans housing discrimination on the basis of race, color, religion, sex, national origin, familial status, and handicap (disability). The FHA doesn’t specifically use the word “harassment.” But it’s well established that harassment is a form of illegal discrimination banned by general provisions of the law, including:

• Section 3604(b), which makes it illegal to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, on in the provision of services or facilities in connection therewith”; and
• Section 3617, which makes it illegal to “coerce, intimidate, threaten, or interfere” with those who exercise their fair housing rights.

These provisions enable courts to hold landlords liable for the harassment they commit personally. But establishing landlord liability gets trickier when the harassment is committed by a third party.

What’s the basis for holding landlords liable for third-party harassment? Historically, the theory is based on comparing housing discrimination banned by the FHA, a.k.a. Title VIII of the federal Civil Rights Act, to employment discrimination banned by Title VII. The employer’s Title VII duty to protect employees from workplace harassment applies not only to their own conduct but also to that of managers, supervisors, and employees under their control. Over the years, the U.S. Department of Housing and Urban Development (HUD), courts, and fair housing tribunals have looked to Title VII for guidance in interpreting Title VIII as making landlords and other housing providers liable for harassment committed by managers, leasing agents, and other third parties under their control.

But using the Title VII comparison to hold landlords liable for harassment committed by tenants takes a bigger leap of faith. After all, landlords don’t control their tenants the way employers control their employees. To get around this hurdle, HUD, courts, and tribunals have relied on the tort law standard of negligence to argue that landlords have a duty to prevent harassment that they know or should reasonably know about. Even though landlords don’t control tenants, they are in a position to take measures to prevent them from harassing other tenants.

The 2016 HUD Regulations

On Sept. 14, 2016, HUD took the first steps to turn what had previously been just a theory into an actionable legal principle by publishing new regulations holding housing providers responsible for failing to “take prompt action to correct and end a discriminatory housing practice by a third-party, where the [provider] knew or should have known” of the conduct and “had the power to correct it.”

Using the Title VII employment analogy, the regulations (entitled “Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act”) state that landlords can be liable for a “hostile housing environment” the way employers are for a “hostile work environment.”

The regulations define hostile environment harassment as unwelcome conduct that’s “sufficiently severe or pervasive as to interfere with. . . the [tenant’s] use or enjoyment of a dwelling.” Determination of whether hostile environment harassment exists is based on an objective, rather than subjective standard—that is, from the perspective of a reasonable person in the tenant’s position, as opposed to how the tenant actually experienced it. Key factors in the determination include:  

• The nature of the conduct;
• Where it took place;
• How often it took place (although a single incident may be enough if the conduct is egregious enough); and
• The relationship between the alleged harasser and the victim.

The Courts

Less than five months after their publication, the HUD regulations were relegated to the mothballs by the new Trump administration. As a result, the spotlight passed to the courts. There have been two significant federal court rulings on landlord liability for tenant-on-tenant harassment, one going for and the other against the landlord.

Landlord Is Liable: The Wetzel Case. Already grieving from the loss of her lover of 30 years to cancer, Marsha Wetzel’s life became a living hell once she moved into her Illinois retirement community. For 15 months, neighboring tenants regaled her with obscenity and verbal abuse because of her sexuality. They called her a “f***** d***” and a “lesbian f*****.” They harassed her physically, once knocking her off her motor scooter. Wetzel complained repeatedly to the landlord. But instead of stepping in to rein in the harassment, management labeled her a troublemaker and plotted her eviction.

Wetzel sued, but the federal court said that landlords aren’t responsible for tenant-on-tenant harassment under the FHA and tossed the case. In a landmark ruling, the Seventh Circuit Court of Appeals reversed, finding that she had a valid FHA claim for hostile environment harassment. To prove such a claim, a tenant must prove three things, the court reasoned:

1. The tenant suffered harassment based on a protected characteristic (in Wetzel’s case, her sexual orientation);
2. The harassment was severe or pervasive enough to interfere with her tenancy; and
3. The landlord knew about the harassment but didn’t take steps to stop it.

Although the decision tracks the HUD regulations, there’s one crucial difference: Unlike the regulations that hold landlords accountable for harassment they know or should reasonably know about, the court ruled that a landlord must have actual notice of the harassment, which the landlord in this case did [Wetzel v. Glen St. Andrew Living Community, LLC, 901 F.3d 856 (7th Cir. 2018)].

Landlord Is Not Liable: The Francis Case. A case from New York had similar facts but a totally different outcome. Like Wetzel, the New York tenant in this case was the target of “a brazen and relentless campaign of racial harassment, abuse, and threats” authored by his neighbor. And like Wetzel, his appeals for help from the landlord fell on deaf ears.

But that’s where the similarities ended. Unlike the Seventh Circuit, the Second Circuit Court of Appeals ruled, 7 to 5, that landlords can’t be liable for tenant-on-tenant harassment, even if they know it’s taking place, because they don’t exercise control over tenants’ behavior. To rule otherwise, the majority reasoned, would force landlords to intervene in a wide range of common disputes between neighbors [Francis v. Kings Park Manor, Inc., 2021 U.S. App. LEXIS 8761, __ F.3d __, 2021 WL 1137441].

The Bottom Line. The question of whether landlords have a fair housing duty to protect tenants from harassment based on race, color, religion, sex, national origin, familial status, and handicap (disability) and additional protected characteristics under state laws, remains unresolved at this time—other than in the Seventh Circuit, where such a duty does exist and the Second Circuit where it doesn’t. But there are nine other circuits that haven’t yet addressed the issue. Meanwhile, the new administration is very likely to adopt the 2016 HUD regulations authored while President Biden served as Vice President (although HUD hasn’t yet officially addressed the issue).

Key question: What, if anything, should you do to prevent tenants from harassing other tenants?

Answer: Take action. Keep in mind that while the current law may be unsettled, for landlords there’s much more at stake than what the law requires. Ensuring a harassment-free housing environment where residents don’t harass their neighbors is not only a moral but a business imperative, at least for landlords who care about the quality of their tenants’ lives. This is true for all forms of tenant-on-tenant harassment, not just harassment based on personal characteristics protected under fair housing laws. And, contrary to what the Francis court says, this anti-harassment imperative is one that landlords can achieve without having to constantly meddle in tenants’ private affairs and squabbles between neighbors.

7 THINGS TO INCLUDE

IN YOUR ANTI-HARASSMENT POLICY FOR RESIDENTS

Preventing tenant-on-tenant harassment in housing requires the same approach as preventing employee-on-employee harassment in the workplace. The starting point is to create and implement a written anti-harassment policy for the residents of your community. Like our Model Policy: Adopt Anti-Harassment Policy, Procedure & Guidelines for Tenants, your policy should include seven elements.

Element #1: Anti-Harassment Policy Statement

Start by drawing a line in the sand on harassment. State that, as landlord, you’re committed to providing a harassment-free housing environment enabling all tenants are to enjoy their tenancy. Make it clear that harassment is unacceptable and that you’ll follow a “zero tolerance” approach if anybody at the community engages in it [Policy, Sec. 1].

Element #2: Clear Definition of ‘Harassment’

Just about any kind of unpleasant or unwelcome conduct or treatment can be interpreted as “harassment” the way that word is used in everyday language. But in the fair housing context, “harassment” has a much narrower meaning. It’s important that tenants understand what harassment is so they can regulate their conduct accordingly. Specifically, define “harassment” as “action, conduct, or comment that can reasonably be expected to cause offense, humiliation, or other physical or psychological injury or illness to a tenant or other person.” And be sure to list examples. Equally important, explain what does not constitute harassment—namely, honest, good faith, and respectful disagreements—so tenants don’t “cry wolf” and make unjustified accusations any time they get into an argument with their neighbors.

Strategic Pointer: The Model Policy definition closely tracks HUD regulations in the sense that conduct must be severe or pervasive enough to create a hostile housing environment. But recognize that discrimination comes into play only when harassment is based on a person’s race, color, national origin, religion, sex, disability, familial status, or other protected class(es) under your state’s fair housing laws. Still, your enemy isn’t just discriminatory harassment but harassment of any kind. Accordingly, your definition should use the phrase “including but not limited to” so that your policy applies to any and all forms of harassment and not just discriminatory harassment [Policy, Sec. 3] .

Element #3: Harassment Reporting Protocols

Now we come to the hard part. Having established the general principles, the balance of your policy should be dedicated to what happens if harassment actually occurs. Since you can’t do anything unless you know about the harassment, the starting point is getting tenants to come forward to report the harassment they suffer or witness. That’s easier said than done.

First Choice: The best outcome is for tenants to settle the issue civilly between themselves without your having to intervene. So, start by suggesting that tenants who feel like they’re being harassed by a neighbor approach the person with their concerns and ask him or her to stop. “Many, if not most disputes between neighbors are the product not of harassment but simple miscommunication or misunderstanding that can be resolved by respectful conversation,” notes a New York fair housing attorney.

Fallback: Harassment victims may not feel comfortable or safe confronting the person who’s harassing them; or they may try the approach and find it ineffective. That’s why you also need to give them a way to summon help from their landlord. Let tenants know that they not only can but are “strongly encouraged” to go to you and report the harassment they experience or witness. Best Practice: Provide not only a contact person but also an alternate off-site person or office to whom tenants can report harassment in case the primary contact is the one who committed (or was otherwise involved in) the alleged harassment.

Safety Net: You also need to tell tenants to call 911, the police, or other emergency responder for help in an emergency, such as where the harassment poses a threat of violence or immediate bodily harm [Policy, Sec. 4].

Element #4: Assurance of Non-Retaliation

Tenants may be hesitant to come forward and report harassment out of fears of retaliation and being labeled a troublemaker—especially when the alleged harasser is a property manager or a powerful, longstanding, or influential tenant. And, while such retaliation is highly illegal, it still happens. Just ask Marsha Wetzel, the tenant that management plotted to get rid of after she complained of harassment. Of course, you’d never let this happen at your community. The problem is that fear and perception may be stronger than reality. That’s why your policy should include clear and strong language (which our Model Policy boldfaces) assuring tenants that they won’t suffer any form of retaliation for reporting harassment [Policy, Sec. 5].

Don’t punish the victim. Evicting or relocating a tenant for reporting discriminatory harassment is illegal retaliation even when you do it for the tenant’s own protection. Your duty under fair housing laws, in other words, is to protect tenants from harassment without taking away their right to decide where they want to live.

Element #5: Harassment Response & Resolution Protocols

Be aware that in establishing a protocol for tenants to report harassment, you may be taking on additional compliance responsibilities. Explanation: Remember that for a landlord to be liable for tenant-on-tenant harassment, two things must be true:

• The landlord must know about the harassment (this is the Wetzel standard—the HUD regulations go farther by making landlords liable for harassment they should reasonably know about); and
• They must have the power to correct the problem.

The Wetzel standard thus gives you the option of deliberately avoiding knowledge of harassment and the accompanying duty to do something about it. (This ostrich head-in-the-sand strategy wouldn’t be available under the HUD “should reasonably know about” standard.) As a result, reporting creates extra responsibility because once tenants report it to you, you have knowledge of the harassment and must take steps to address it.

The heart of the policy, then, are the provisions explaining how you intend to address the harassment reported to you. Although there’s no one formula, your policy should provide for three layers of response to harassment complaints:

Level 1: Calling for Emergency Help. The first and most immediate concern is to call 911, law enforcement, or other emergency responders if there’s a risk of violence or other emergency. Hopefully, this is something tenants do themselves before reporting the harassment to you [Policy, Sec. 6(a)].

Level 2: Mediation and Conciliation. Being the landlord puts you in the position to intervene and resolve tenant-on-tenant harassment. The most effective way to leverage that position is to empower the tenants to resolve things themselves by acting as a neutral mediator or conciliator. Bring the parties together, listen to both sides of the story, seek common grounds of agreement, and suggest resolutions [Policy, Sec. 6(b)].

Level 3: Investigation. For mediation to work, both sides must be willing to work together in good faith to resolve their dispute. So, you need to have some other mechanism to deal with harassment complaints that mediation can’t resolve. At that point, the imperative becomes to determine exactly what happened and whether the harassment accusations are true. Accordingly, your policy should provide for a full, fast, and fair investigation. While procedures vary depending on the circumstances and situations, investigations should be carried out by a qualified and neutral investigator who isn’t involved in the disputes and is deemed impartial to both parties [Policy, Sec. 6(c)].

The policy should also include assurances that you’ll keep the investigation report and other personal information about the tenants involved confidential and not disclose it to third parties unless the laws allow or require you to do so [Policy, Sec. 6(d)]. In addition, you should describe the steps you’ll take to support tenants who suffer harassment. At a minimum, that should include providing victims with information about the medical, psychological, or other support services available; if feasible, you might also want to pay all or some of the costs for such services [Policy, Sec. 6(e)].

Element #6: Potential Discipline for Harassment Violations

Having an anti-harassment policy is worse than useless if you’re not prepared to hold tenants accountable for the harassment they commit. Such accountability should include reserving the right to discipline and even evict tenants found to have engaged in harassment, particularly when that harassment is based on the victim’s race, color, national origin, religion, sex, disability, familial status, or other protected class(es) under your state’s fair housing laws.

Accordingly, your policy should state that harassment is a “material” violation of the lease that may justify termination of the harasser’s tenancy. The good news is that your standard lease probably already includes provisions governing tenant conduct that you can rely on to enforce this rule, including the requirement that tenants (and other persons on the premises with tenants’ consent):

• Conduct themselves in a civil, respectful, and lawful manner at all times;
• Refrain from annoying, harassing, embarrassing, disturbing, inconveniencing, or harming other tenants or persons on the premises; and
• Not engage in acts of discrimination, nuisance, breach of the peace, or any other illegal activity.

Be careful how you word the disciplinary provisions. What you want to do is reserve the right to evict for a first offense; what you don’t want to do is require termination automatically and fail to leave yourself leeway to impose lesser discipline for less severe offenses and/or tenants you believe are capable of correcting their behavior [Policy, Sec. 7].  

Element #7: Clarification of Tenant’s Right to File a Fair Housing Complaint

Based on best practices and principles of employment discrimination law, anti-harassment policies should include clear language spelling out that victims of harassment based on race, color, national origin, religion, sex, disability, familial status, or other protected class(es) under your state’s fair housing laws have the right to file a fair housing discrimination complaint. Otherwise, victims may think that the anti-harassment policy is designed to substitute rather than supplement their fair housing protection rights [Policy, Sec. 8].