Follow Five Rules to Reduce the Risk of Sexual Harassment Claims

In April, HUD observed Fair Housing Month by initiating a campaign against sexual harassment. This year's theme focused on protecting individuals from harassment by property owners, managers, maintenance workers, or other residents, and helped educate the public about what behaviors and actions constitute sexual harassment and resources HUD offers to those who experience harassment.

"While any form of discrimination stains the very fabric of our nation, HUD is especially focused on protecting the right of individuals to feel safe and secure in their homes, free from sexual harassment or unwanted sexual advances," HUD Secretary Ben Carson said in a statement. "This theme, which is a call to action, is an appeal to those who experience discrimination, particularly survivors of sexual harassment, to contact HUD for help.”

We’ll go over fair housing rules banning sexual harassment and offer five rules to help you minimize the risk of such a claim originating from your site.

Sexual Harassment Liability

Under the FHA, it’s unlawful to discriminate against applicants and residents based on their sex. Making decisions about whether to accept or reject applicants based on their sex can lead to costly fair housing litigation, particularly when combined with allegations of discrimination based on familial status or other protected characteristics.

Sexual harassment—that is, unwelcome sexual conduct—is a form of discrimination based on sex. Claims for sexual harassment can cost thousands, if not millions, in settlements or court awards, civil penalties, and attorney’s fees, not to mention lasting damage to the reputation of the site, management, and individuals involved. According to HUD, there are two main types of sexual harassment:

Quid pro quo harassment. This type of discrimination occurs when a housing provider requires a person to submit to an unwelcome request to engage in sexual conduct as a condition of obtaining or maintaining housing or housing-related services. HUD offers these examples:

• A landlord tells an applicant he won’t rent her an apartment unless she has sex with him.
• A property manager evicts a tenant after she refuses to perform sexual acts.
• A maintenance man refuses to make repairs unless a tenant gives him nude photos of herself.

Hostile environment harassment. This type of discrimination occurs when a housing provider subjects a person to severe or pervasive unwelcome sexual conduct that interferes with the sale, rental, availability, terms, conditions, or privileges of housing or housing-related services. HUD offers these examples:

• A landlord subjects a tenant to severe or pervasive unwelcome touching, kissing, or groping.
• A property manager makes severe or pervasive unwelcome, lewd comments about a tenant’s body.
• A maintenance man sends a tenant severe or pervasive unwelcome, sexually suggestive texts and enters her apartment without invitation or permission.

Owners and managers may face liability for sexual harassment, even if they weren’t directly involved in any misconduct. In general, the law holds owners and managers accountable if they knew or should have known about sexual harassment committed by their employees or agents, but failed to do anything to stop it. HUD takes an even stronger stance, asserting that owners or managers may be liable for the acts of employees or agents—regardless of whether they knew of or intended the wrongful conduct or were negligent in failing to prevent it from occurring. HUD says that if a manager authorizes a maintenance worker to enter a resident’s unit to make repairs, and the worker sexually harasses the resident, then the management company is legally responsible for the discriminatory actions of the maintenance worker.

Furthermore, owners and property managers could be liable for harassment of one resident by another, according to HUD. Some courts have held owners and managers liable in situations where they knew of tenant-on-tenant harassment and did nothing to stop it.

Rule #1: Establish a Zero-Tolerance Policy Against Sexual Harassment

Adopt a zero-tolerance policy against sexual harassment at your site. It doesn’t matter whether it’s part of your general fair housing policy or a stand-alone policy. You should have a clear, written policy that sexual harassment of any kind will not be tolerated at your site and that violations will bring prompt disciplinary action, up to and including termination.

Thoroughly explain that sexual harassment consists of unwelcome sexual conduct—through words or actions—toward prospects, applicants, residents, guests, and other visitors, regardless of their gender. Reinforce that employees should treat applicants and residents professionally and offer examples of prohibited conduct, such as:

• Explicitly or implicitly suggesting sex in return for living in the site, receipt of services, or otherwise related to the terms and conditions of the tenancy;
• Suggesting or implying that failure to accept a date or sex would adversely affect the resident’s tenancy;
• Initiating unwanted physical contact, such as touching, grabbing, or pinching;
• Making sexually suggestive or obscene comments, jokes, or propositions; and
• Displaying sexually suggestive photos, cartoons, videos, or objects.

The policy should encourage anyone who believes she has been subjected to sexual harassment to file a complaint. Identify whom to contact and explain how sexual harassment complaints will be handled, such as where they go and how they are investigated. Emphasize that there will be no retaliation against anyone for reporting sexual harassment.

Rule #2: Focus on Employee Hiring and Training

Pay attention to your employee hiring and training practices. Do your homework when hiring new employees. Check references and, if allowed in your jurisdiction, consider a policy requiring criminal background checks as part of the hiring process for new employees, particularly those in key positions.

To put your sexual harassment policy into practice, you must make sure that your employees are capable of—and trained to—follow the rules. Require all employees—from leasing agents to maintenance workers, whether full- or part-time—to receive fair housing training, including your sexual harassment policy. New hires should get the basics before they’re allowed to interact with the public, and get more in-depth training as soon as possible after starting work. Give them a copy of your sexual harassment policy and have them sign an acknowledgement that they received it.

During employee training, explain what sexual harassment is—with examples of prohibited conduct—and that any sexual harassment will bring prompt disciplinary action, up to and including dismissal. Tell employees to treat everyone with courtesy and to report anything that they may see or hear that might suggest discrimination or sexual harassment by coworkers, contractors, or residents. Keep records of the training, to document who attended, what was covered, and when it occurred.

Rule #3: Don’t Ignore Sexual Harassment Complaints

Take it seriously if someone raises the possibility of sexual harassment at your site. If you witness or get a report from a resident or employee about questionable conduct, it’s important to investigate and resolve the problem as quickly as you can.

Contact your attorney and begin a prompt investigation by interviewing anyone involved. Explain your sexual harassment policy and that the investigation will be fair and impartial. Listen carefully, be respectful, and take detailed notes.

Speak with the person making the complaint to get the details of what occurred. Ask about any witnesses and contact them to find out what they saw or heard. Speak to the person accused of sexual harassment and ask for his or her side of the story.

The worst thing you can do is to ignore a sexual harassment complaint—either because you don’t believe it or don’t think it’s that bad. Courts are more than willing to find owners responsible for sexual harassment if they knew or should have known about it, but didn’t take adequate steps to stop it.

Rule #4: Take Prompt Action to Halt Harassment

After completing your investigation, analyze all the information received to decide whether sexual harassment occurred and to identify the appropriate response. If you find that a sexual harassment complaint is justified, then you should promptly take steps reasonably designed to end the harassment. Ask your attorney about how best to proceed because the appropriate response depends on several factors, including who’s involved and what’s alleged.

If it’s against an employee, take appropriate disciplinary action as provided in your employment policies. Depending on the severity of the misconduct, such disciplinary action may involve a reprimand, suspension, or even termination—whatever level of discipline you reasonably believe will be effective in stopping the misconduct.

Get legal advice about complaints about vendors or other residents. It may be a bit more complicated to investigate and resolve such complaints, but it’s necessary to do so promptly and effectively. Courts have been willing to hold owners liable for sexual harassment by third parties, such as contractors and other residents, if they knew or should have known about problem behavior but didn’t do enough to stop it.

Rule #5: Don’t Retaliate Against Anyone Complaining About Sexual Harassment

Be on guard against a retaliation claim—a separate offense under fair housing law—when dealing with residents who’ve complained about sexual harassment. Under the FHA, it’s unlawful to “coerce, intimidate, threaten, or interfere with” anyone who has exercised her rights under fair housing law—as well as anyone who has helped or encouraged someone to do so.

You could face a retaliation claim if you take action against a resident—by evicting or not renewing her lease, for example—because she lodged a sexual harassment complaint against your site. The law punishes owners for retaliating against residents for filing a sexual harassment complaint, even if the harassment complaint is eventually dismissed.