May 2021 Coach's Quiz

COACH’S ANSWERS & EXPLANATIONS

QUESTION #1

Correct answer: c

Reason: This situation involves two key elements of an anti-harassment policy:

Element #5: Harassment Response & Resolution Protocols

Element #6: Potential Discipline for Harassment Violations

Under current law, namely, the Wetzel standard, the landlord’s duty is to take steps to address harassment that it actually knows about. And thanks to the witness’ report, you do know that Ms. W may be harassing Ms. B, so you must take steps to deal with it. Normally, the first course of action would be to try to mediate a resolution between the sides. But mediation probably isn’t appropriate for a situation involving racial slurs and other forms of blatantly racist conduct. As a result, you should have a qualified person investigate the matter, including by interviewing Ms. B, Ms. W, and the witness. And if the investigator reports that the charges are true, you need to do something to make Ms. W stop her harassment and refrain from doing it ever again, which may include discipline up to the point of eviction. Thus, c. is the right answer.

Wrong answers explained:

a.            The reason a. is wrong is that relocating Ms. B is tantamount to punishing the victim and a form of discrimination to the extent it takes away Ms. B’s right to choose where she wants to live. This is true even if you think you’re acting in Ms. B’s best interests by trying to protect her from Ms. W.

b.            Choice b. is wrong because the witness’ report has put you on notice of harassment and once you know about it, you must address it. This is certainly true if your property is in Illinois, Indiana, or Wisconsin—that is, the Seventh Circuit, where the Wetzel case is binding law; and it may also be true in every other state with three exceptions: New York, Connecticut, and Vermont—the Second Circuit, where the Francis ruling rejecting a landlord duty to address tenant-on-tenant harassment applies.

d.            This choice is wrong because the fair housing duty to stop tenants from harassing other tenants may include but doesn’t automatically require eviction. It’s up to the landlord to decide on the appropriate discipline based on the circumstances involved. And that’s also why you need to investigate before you make that decision.

QUESTION #2

Correct answer: c

Reason: This situation involves a key element of an anti-harassment policy:

Element #2: Clear Definition of Harassment

To constitute harassment under fair housing law, conduct or comments must be not just disagreeable and unwelcome, but downright harmful, defined as “reasonably expected to cause offense, humiliation, or other physical or psychological injury or illness” to a tenant or other person. The conduct must also be: (1) based on a person’s race, color, religion, or other protected ground; and (2) pervasive or severe enough to create a hostile housing environment. While all three examples satisfy (1) (since the conduct or comment is based on the tenant’s religion), only a. and b. meet (2). By contrast, getting into arguments with other tenants isn’t, by itself, severe enough to create a hostile housing environment, even when the arguments are based on religious differences—although such arguments could be a red flag that the tenant may be engaging in other forms of conduct that cross the line. So, c. is the right answer.

Wrong answers explained:

a.            The reason a. is wrong is that constant religious-based abuse does impair a tenant’s enjoyment of the premises and thus constitutes harassment.

b.            Choice b. is wrong for the same exact reason. The moral is that discriminatory harassment can come from a landlord, the landlord’s representative (like the building superintendent), or another tenant. The big difference between a. and b. is with regard to the liability consequences to the landlord, as explained in the Bonus Question below.

BONUS QUESTION

Correct answer: b

Reason: This bonus question illustrates the current state of the law with regard to a landlord’s liability for discriminatory harassment committed by third parties. The best way to explain this is to go through each answer choice one by one.

a.           Religious harassment committed by one tenant against another: There are three possible answers based on geography:

• Illinois, Indiana, Wisconsin: The landlord is potentially liable for the tenant’s religious-based harassment against her neighbor;
• New York, Connecticut, Vermont: The landlord isn’t potentially liable for the tenant’s religious-based harassment against her neighbor; and
• All other U.S. states and jurisdictions: The landlord may be potentially liable for the tenant’s religious-based harassment against her neighbor, with the risk being especially great if the claim is brought under the federal FHA and thus subject to the HUD regulations.

b.            Religious harassment committed by the landlord’s employee: There’s absolutely no question that the landlord could be liable for the super’s religious harassment of the tenant regardless of state or jurisdiction.

c.             Tenant’s religious-based arguments with neighbors: The landlord wouldn’t be liable for harassment because, as explained above, this conduct isn’t enough to constitute harassment under the fair housing laws.