HUD Proposes Fair Housing Harassment Rule, Expands Liability for Agent and Third-Party Misconduct

The Fair Housing Act prohibits harassment in housing and housing-related transactions because of race, color, religion, sex, national origin, disability, and familial status. Yet for many women, their landlords are a source of fear and harassment, demanding sexual favors in lieu of or along with rent money. This type of harassment is one of the subjects of a new rule proposed by HUD on Oct. 21.

The unique vulnerability of poor women makes them targets of sexual harassment in their homes. Immigrants, racial and ethnic minorities, single mothers, and persons with disabilities may also experience increased vulnerabilities. Housing providers may coerce women into sexual acts, threatening to put the woman and her children out on the street if they don’t comply with their demands.

Recently in South Dakota, HUD charged a manager with violating the Fair Housing Act by sexually harassing a female resident. The manager made numerous sexually explicit statements to the woman, including requesting favors. He also made inappropriate physical contact with the woman and on at least one occasion used his key to enter the unit while the woman was inside, without the woman’s permission. The woman complained to the owner about his behavior, sought a court order, and filed a police report, but the harassment continued, ultimately forcing the woman to move out.

In another egregious case from last year, HUD charged a West Virginia management company and three former employees that managed a site that receives Low-Income Housing Tax Credits and accepts HUD Housing Choice Vouchers with sexually harassing at least five women who lived there. The manager had threatened to evict two women if they didn’t comply with his sexual demands. In one instance, the manager used his keys to break into her apartment and demand that she have sex with him or lose her home and her Section 8 voucher. With her children sleeping in the apartment, the woman felt she could not refuse. In another case, a second tenant allegedly complied with the manager’s sexual demand after he threatened, falsely, to take her Section 8 voucher and to make her and her children homeless if she didn’t agree to his demands. HUD’s charge also alleges that the employee made unwelcome sexual advances toward and sent sexually explicit and unwelcome text messages and graphic pictures to female tenants.

HUD’s proposed rule would add definitions of the terms “quid pro quo” (“this for that”) harassment and “hostile environment” harassment to the existing regulation, provide examples of such harassment, specify how HUD would evaluate complaints, and clarify standards for direct liability.

Quid pro quo harassment occurs when a person is subjected to an unwelcome request or demand because of the person’s protected characteristic, and going along with the request or demand is either explicitly or implicitly made a condition related to the person’s housing. The proposed rule says that claims of quid pro quo harassment are most typically associated with sex, but may be established on the basis of protected characteristics other than sex. 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 a protected characteristic, a person is subjected to unwelcome conduct that is so severe or pervasive that it interferes with or deprives the victim of her or his 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 proposed rule would describe unwelcome conduct to include written, verbal, or other conduct, in addition to physical contact. The forms of unwelcome conduct include 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 could include taunting related to a person’s disability, or exhibiting hostility toward someone who doesn’t act in a manner that fits gender-based stereotypes.

Finally, the proposed rule intends to clarify standards for liability based on traditional legal principles of tort liability. Under the proposed rule, a person would be directly liable for 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. A person would also be directly liable for 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—for example, a management company staff person who knew of a resident harassing another resident.