Sexual Harassment: The overlooked form of fair housing discrimination.

When landlords think of fair housing complaints, they usually think about claims related to refusing to rent to someone because of their race or religion. On the other hand, when landlords think of sexual harassment, they usually think about orders of protection and potential criminal liability. Many landlords do not realize that sexual harassment is a form of fair housing discrimination and can result in the agent, property manager and owner being civilly liable for monetary damages. Under the theory of respondent superior, the property management company and owner may be liable for the discriminatory acts of the manager, if it was done within the scope of their employment.

The federal Fair Housing Act (FHA), Title VIII of the Civil Rights Act of 1968, prohibits discrimination based upon race, color, national origin, religion, sex, disability, or family status. While there are more legalistic definitions, discrimination is the treatment of people within a protected class differently than others within that class.

Viewed in this context, it is obvious how sexual harassment is a fair housing issue. A male landlord that harasses a female tenant is treating her differently than male tenants, solely because of her sex. It doesn’t matter if he is providing her benefits because of her sex, or treating her negatively; in either case, it can give rise to a sexual harassment suit.

Under the FHA, sexual harassment fails within two classes: hostile environment or quid pro quo. Hostile environment exists when the landlord treats the tenant differently by making inappropriate comments, inappropriate physical contact or by providing inappropriate pictures or written material. Quid pro quo (“this for that”) exists when a landlord or manager, conditions the tenant receiving services or benefits in exchange of sexual favors – e.g. if a landlord refuses to fix a leaky sink until the tenant agrees to go on a date. A housing provider (manager, agent and owner) can be found liable if the treatment rises to the level of “severe or pervasive” conduct that creates a hostile living environment. Generally, whether the condition is severe or pervasive is based upon how a reasonable person would react to such treatment.

To avoid FHA claims it is important to have a written policy prohibiting any such discrimination and which prohibits socialization between management and tenants outside of their professional interaction. While property managers and owners should be pleasant and affable with their tenants, such relationships should not be social. It is better to keep the relationship between management and tenants, on a business level, to avoid any such claims. Even a mutually agreeable sexual relationship can result in fair housing claims by other tenants or by the tenant after the relationship has terminated. As with all fair housing issues, the company should have a clear policy against such written policy against such actions and enforce the policy uniformly as written.

LEGAL DISCLAIMER: READ CAREFULLY:  The author and his law firm expressly disclaim all liability in connection with actions taken or not taken based on any or all of the contents or information accessible through this article or site. The information provided is not considered legal advice and is given only for landlords to consider provisions which may or may not be permissible in the jurisdiction where the rental property is located. ALWAYS SEEK THE ADVICE OF COMPETENT LEGAL COUNSEL BEFORE DRAFTING OR ENTERING INTO ANY CONTRACT.

This article is being provided as a courtesy to ARPOLA. The author, Mark Zinman, is only licensed to practice law in Arizona. By publishing this article, the author is not seeking work in other states nor is he providing legal advice to prospective clients.