Sexual Harassment in Housing: How to avoid Fair Housing claims against maintenance staff
With so many stories concerning sexual harassment in the media today, it is important that housing professionals and maintenance staff have a heightened awareness of the current laws and the risks of certain conduct, ranging from inappropriate comments to outright
sexual assault.
The Fair Housing Act at 42 UC 3601-3619 (“FHA”) protects individuals against discrimination because of sex/gender. This extends to sexual harassment. The Courts recognize two types of sexual harassment (1) quid pro quo sexual harassment (such as when a housing provider or its staff or agent conditions access or retention of housing on a victim’s submission to sexual conduct; and (2) hostile environment sexual harassment (such as when a housing provider or its staff or agent (or another tenant in some cases) engages in sexual behavior of such severity or pervasiveness that it alters the terms or conditions of the tenancy.
On January 8, 2018, the Deputy Director for the Office on Violence Against Women (“OVW”) of the Department of Justice (“DOJ”) issued a public letter, emphasizing OVW’s continued commitment to addressing the housing needs of victims of sexual harassment, from transitional housing programs, protections from eviction and access to emergency transfers in publically assisted housing. The letter made reference to the October 2017 announcement from the DOJ of an initiative to combat sexual harassment in housing, and cited the fact that the Civil Rights Divisions settled four sexual harassment cases in 2017, recovering over $1 million for the victims for those 4 cases alone. The government is making discrimination based on sex a priority.
A property owner or manager must refrain from engaging in sexual harassment and also refrain from showing preference to someone on the basis of gender. But it goes farther than that. A property owner or manager must ensure that his/her employees and agents, including maintenance staff, do not engage in sexual harassment or show preference for anyone based on gender. If a property owner or manager knows or should have known that sexual harassment or preference is occurring and fails to take action to stop it, the property owner or manager is directly liable for any resulting harm, just as if the property owner or manager personally engaged in the sexual harassment or preference themselves. Furthermore, if the employee or agent is acting in the scope of his or her employment when the harassment occurred, the property owner or manager could be vicariously liable even if he/she did not know of the bad acts.
The classic example is the situation where an apartment manager authorizes a member of maintenance staff to enter a Resident’s apartment to make a repair. The Resident then reports that the member of maintenance staff sexually harassed the Resident. If this proves to be true, the maintenance staff member is liable for discrimination. But the apartment manager may be also by liable for the discriminatory conduct of the maintenance worker under “vicarious liability” or “negligent supervision” legal theory.
HUD recommends that all property owners and managers do the following 5 things to reduce the likelihood of sexual harassment in housing:
- Adopt policies against sexual harassment;
- Develop processes for applicants and tenants to report sexual harassment;
- Establish sanctions for employees and contractors who engage in sexual harassment;
- Educate employees, contractors, Residents and applicants about these policies and the FHA; and
- Enforce these polices against employees, Residents and contractors who engage in sexual harassment.
Furthermore, housing experts recommend that maintenance staff be required to have basic Fair Housing training immediately upon being hired, with a Fair Housing review class every 1-2 years for updates in the laws. Maintenance staff are accused of discrimination and sexual harassment is a number of ways. Sexual harassment suits have been filed against maintenance staff for severe and egregious misconduct but also for the following:
- Doing Residents “a favor” by prioritizing a request over another Resident;
- Showing preferential treatment, particularly to someone of a particular sex;
- Performing off the clock work for certain Residents;
- Carrying groceries for certain Residents and not others;
- Flirting with a Resident or sending inappropriate texts;
- Showing the community to attractive Applicants and not to others; and even
- Answering questions for certain Residents and spending more time than with others.
Management needs to adopt a policy to deal with all maintenance requests on a first come, first service basis, with the exception of emergencies and not permit maintenance staff to deviate from this policy. Management needs to train maintenance staff to report any accommodation requests or unusual incidents to management immediately. And Management needs to keep good records to fend off claims of discrimination, whether based on disability, familial status or sex/gender.
Good customer service is an essential part of our industry. But knowing the line between good customer service and sexual preference or harassment is key. For information on Fair Housing classes, please contact Lisa at AAMD.