It has long been recognized, both by the Department of Housing and Urban Development and the federal courts, that the Fair Housing Act prohibits harassment in housing in housing and housing related transactions because of race, color, religion, sex, national origin, disability and familial status. But, up until 2016 no regulatory standard had been articulated for assessing claims of harassment under the Fair Housing Act. Courts had simply used the standards first adopted under Title VII of the Civil Rights Act of 1964, which prohibit harassment in employment, to evaluate claims of harassment under Title VIII of the Fair Housing Act. Because there are differences between harassment that occurs in those two settings, HUD issued its final rules governing this area in 2016.
The new rules define “quid pro quo” harassment as an unwelcome request or demand to engage in conduct where the submission to the request or demand is made a condition of sale, rental, or the terms and conditions or privileges of sale or rental in a residential real estate transaction. Hostile environment harassment is defined as unwelcome conduct that is sufficiently severe or pervasive that it interferes with availability, sale, rental, or the use or enjoyment of a dwelling. Hostile environment harassment is assessed on the totality of the circumstances and does not require a change in the economic circumstances of the victim to prove.
Perhaps most importantly the new regulations have dispensed with the Title VII affirmative defense to an employer’s vicarious liability for hostile environment harassment by a supervisor. Indeed, the regulations as currently written make housing owners vicariously liable for the harassing conduct of their employees, regardless of whether the owner knew or should have known of the discriminatory conduct. HUD’s position is that the Title VII affirmative defense is not relevant to the housing context because, in HUD’s view, a housing agent who harasses residents is inevitably aided by his agency relationship with the housing owner, or alternatively was acting in the scope of his agency. In addition, unlike Title VII, there is no statutory exhaustion requirement under the Fair Housing Act, so a victim of harassment may immediately file suit, thus HUD believes that nothing in the Fair Housing Act allows a housing provider to avoid liability for the conduct of its agents by the establishment of an internal complaint procedure.
The new regulations also prohibit retaliation against anyone who reports harassment to either HUD or the Department of Justice or a housing provider.
In addition, HUD and the Department of Justice have concluded that the problem is so significant that it has become an investigatory priority for the Trump Administration.
If you face an investigation by HUD or a civil lawsuit arising out a claim of sexual harassment in housing call The Bowman Law Office for assistance at 912-401-0121.