Seven Rules for Preventing and Dealing with Sexual Harassment of Residents

As a site owner or manager, you must be concerned about your liability for sexual harassment. Federal fair housing law protects residents from sexual harassment at your site. A resident can sue you if she thinks that you or any employee at your site sexually harassed her. Sexual harassment can be a big problem in housing because a manager or maintenance worker has a great deal of power over matters such as safety and security that affect residents’ ability to enjoy their apartments.

Earlier this year, the Department of Justice (DOJ) and HUD announced a new interagency task force to combat sexual harassment in housing. The shared strategy between DOJ and HUD focuses on five key areas: (1) data sharing and analysis; (2) joint development of training; (3) evaluation of public housing complaint mechanisms; (4) coordination of public outreach and press strategy; and (5) review of federal policies.

Following that announcement, HUD announced that it had reached a sexual harassment settlement in Florida. The Florida settlement was in the form of a voluntary compliance agreement/conciliation agreement that was reached with a Jacksonville housing authority. The settlement resolved allegations that a female resident was sexually harassed on multiple occasions by a housing authority employee. According to HUD, the alleged harassment included unwelcome sexual comments, requests for sex or sexual favors, and threats of eviction if the tenant didn’t submit to such requests. As part of the settlement, the housing authority agreed to pay the resident $75,000, adopt a new sexual harassment policy, and required staff to attend fair housing training.

If you or a member of your staff sexually harasses someone, you’re discriminating against that person on the basis of sex and can be liable under fair housing law. Residents can claim that you sexually harassed them by creating a “hostile” or “offensive” housing environment or by saying they can’t live at your site unless they submit to sexual advances.

We’ll tell you how to prevent sexual harassment and how to make sure you’re prepared to handle residents’ complaints if it does happen.

What Is Sexual Harassment?

Courts generally define sexual harassment of residents or prospects as “unsolicited, offensive conduct that interferes with residents’ use and enjoyment of the premises where they reside.” This means sexual harassment is inappropriate conduct that makes a resident feel unwelcome or violated at your site. The offensive acts don’t even have to be sexual. It’s enough that they wouldn’t have happened but for the resident’s sex. For instance, here are some common examples of sexual harassment that occur in housing:

• Making crude remarks to residents;
• Telling a resident that she can’t live at your site unless she grants sexual favors;
• Touching residents inappropriately;
• Offering to pay rent for a resident in return for sexual favors; and
• Distributing inappropriate written or printed materials.

As you can see, sexual harassment refers to behavior that is unwelcome and personally offensive. The harassment can be verbal or physical.

And you don’t have to harass someone yourself to be liable for sexual harassment. Under federal and state law, owners must answer for the behavior of their staff. So if your employee is in a resident’s unit to conduct repairs and makes an unwelcome sexual overture, you could be held liable.

Follow Seven Rules

It’s up to you to be prepared to stop sexual harassment if it happens at your site. Here are seven rules that can help you reduce the chance of sexual harassment occurring at your site and minimize your liability if it does occur.

Rule #1: Set a policy on sexual harassment. As a first step, every owner and manager should adopt a clear written policy barring employees from sexually harassing residents. The policy should prohibit sexual harassment and state that any sexual harassment will bring prompt disciplinary action, up to and including dismissal. The policy should then give examples. Here are some policy guidelines that you should require every employee to follow:

• Don’t touch or hug residents or prospects inappropriately;
• Give reasonable notice before entering units for repairs and maintenance;
• Don’t enter residents’ units except to do repairs or in an emergency;
• Don’t make suggestive, lewd, or inappropriate remarks or jokes to residents or prospects; and
• Treat residents and prospects professionally.

The most difficult part of preventing sexual harassment is knowing what conduct crosses the line. Residents may interpret even innocent conduct as sexual harassment. Though complimenting a resident isn’t usually considered harassment, your staffers must be careful to avoid unprofessional conduct that can make a resident feel threatened such as going into a unit when a resident is in the shower, telling off-color jokes, or making even a subtle sexual overture. Staffers must give advance notice and go into units only in an emergency or on maintenance visits, and they must make sure to act professionally.

Your policy should also encourage residents to complain to specified persons or departments in your company if they feel that they’re being harassed. The policy should tell residents which people at the management office will handle complaints and how to reach those people. The policy should tell residents that if incidents occur, they should file complaints immediately and that they won’t suffer any retaliation for their reports.

You should appoint at least two staffers to handle sexual harassment complaints so that residents have more than one option if they want to file a complaint. If possible, you should also appoint an individual who works off-site to handle complaints. Residents may be too embarrassed or uncomfortable to make complaints about a staffer on-site or may feel that an on-site employee handling complaints will be on the harasser’s side.

Rule #2: Require staff to read and follow the policy. It’s not enough just to have a policy. You’ve got to make sure your staff understands it. Everyone on your staff must read, study, and follow the policy. All employees must know that sexual harassment of any kind is prohibited at the site and by law. The policy should appear in employee manuals and supervisor guides so everyone can read it. Also require every employee to sign a copy of the policy, then keep a signed copy in each employee’s file.

Rule #3: Require contractors to follow the policy. Make sure that vendors and contractors who have contact with residents are also aware of this policy. If contractors harass residents, you could be held liable even though they don’t work for the site. Contractors must know that sexual harassment violates fair housing law, which they’re required to follow.

The best way to make contractors aware of your policy and to protect yourself against sexual harassment by contractors is to include a special clause in your written contracts with them. That clause should advise contractors of your policy against sexual harassment and require them to comply with fair housing law.

The clause should also require contractors to defend and indemnify you if you’re sued for a fair housing violation because of something they did. “Indemnify” means that the contractor will reimburse you for any damages you’re ordered to pay.

Rule #4: Give policy to residents so they’ll know their rights. You should inform your residents of your policy. Publish it in your site’s newsletter from time to time, and post the policy in a conspicuous spot like a bulletin board. If you’re ever faced with a sexual harassment claim, it’s important to show you took steps to distribute the policy to both staff and residents. You need to publicize your policy actively. Don’t wait until residents complain to set and distribute a policy.

Rule #5: Investigate and take prompt action on reports of sexual harassment. If a resident complains about sexual harassment or if you witness or get a report from a resident or employee who has witnessed questionable behavior, don’t delay taking action. Investigate and resolve the problem as quickly and as fairly as you can. A prompt and practical response is important. If you don’t investigate complaints and take action, tough policies and efficient complaint procedures won’t help you minimize liability.

Here are steps to take when a resident or witness complains to you or management about sexual harassment:

• Ask the resident or witness to describe the incident in detail. Ask if there are any other witnesses or evidence to back up his or her account. Write down what he or she tells you;
• Interview any other witnesses, and make a written record of what they say;
• Speak to the accused employee to get his or her side of the story; and
• Evaluate all of the evidence to determine if it’s sufficient to confirm the complaint.

If you witness sexual harassment, write down what you saw and discuss the incident with the employee. Don’t pretend not to notice questionable behavior.

Remember, a resident’s sexual harassment claim isn’t necessarily legitimate. After prompt investigation, if you find that the complaint doesn’t hold water, speak to your attorney. He or she may suggest that you tell the resident in a letter that you’ve conducted an investigation and what the results are. Recount the exact steps you took and what you’re doing to prevent possible incidents in the future. Assure the resident that she should contact you again if she has further problems.

Rule #6: Discipline offenders. If you determine that an employee sexually harassed a resident, you should promptly discipline the offending employee. The severity of your response should depend on the nature of the incident. For example, if the complaint involved a physical sexual assault, you should call the police. Even mild verbal harassment requires tough discipline. Once you’ve determined that an employee sexually harassed a resident or prospect, talk to your attorney about what to do.

In most cases your discipline of an employee should begin with both an oral and written warning and an explanation of your policy. Then, if the employee repeats the behavior, try a suspension and/or withholding of raises or promotions before firing the employee. Tailor your discipline to how bad the employee’s conduct was. If appropriate, urge the employee to seek counseling. But don’t hesitate to fire flagrant or repeat offenders. Sexual harassment is serious business.

You may not be able to find enough evidence to determine exactly what happened. Often the question of whether sexual harassment occurred hinges on who’s more credible, the resident or the employee. If the results of your investigation are inconclusive and rest solely on credibility, you should direct the employee to have no contact with the resident. Then, if he violates your order, you can discipline the employee. You should also tell the resident of the actions that you’ve taken.

Rule #7: Keep records of complaints and responses. Keep records of all complaints you get about employees. Encourage residents or witnesses to put their complaints or statements in writing. If they won’t, keep your own records of your conversations with them. It’s also a good idea to write memos to your files outlining your investigations and disciplinary actions.

If you find yourself in an awkward situation with a resident and you’re concerned that she might make a harassment complaint, report the incident to your supervisor. For example, an awkward moment may occur during a maintenance visit. Report the situation right away, since you might not remember the details later. Your supervisor may take down notes herself or tell you to write a memo to the file explaining what happened.