Sexual harassment and harassment based on any of the other state and federally protected classes is illegal under state and federal fair housing laws. Every year many housing discrimination complaints and lawsuits are filed against landlords, agents, property managers, and maintenance workers alleging persistent, pervasive sexual harassment or “quid pro quo” harassment, where the perpetrator demands sex in exchange for rent or repairs. Landlords and other housing providers are responsible for preventing harassment and taking steps to stop harassment if it occurs. Be sure that you have a harassment policy for any employees or property managers and make sure your employees are aware of the consequences of committing harassment. As a landlord, you can also be held liable for the actions of third parties, such as other tenants, if it can be shown that you knew or should have known of the harassing behavior and did not take any action to correct it when you had the ability to do so.
The courts and Department of Housing and Urban Development have long considered harassment based on race, color, national origin, religion, sex, familial status, and disability to be prohibited under the Fair Housing Act. Until 2016, however, standards for assessing harassment claims had not been formalized in regulation. To remedy this lack of clarity, in September 2016 HUD’s Office of Fair Housing and Equal Opportunity published a final rule entitled Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act.
This rule formalized the standards for evaluating claims of hostile environment and quid pro quo harassment in the fair housing context. The rule also provided definitions for “quid pro quo” (this for that) harassment and “hostile environment” harassment, offered examples of such harassment, and clarified housing providers’ liability for harassment or discrimination by agents and third parties.
By establishing consistent standards for evaluating claims of quid pro quo and hostile environment harassment, the rule provides clarification and guidance to providers of housing and housing-related services seeking to ensure that their properties and businesses are free of unlawful harassment.
The Fair Housing Act covers two types of harassment: quid pro quo and hostile environment.
Quid pro quo (meaning something for something) involves subjecting a person to an unwelcome request or demand and making submission to the request or demand a condition related to the person’s housing, such as, “Go out with me and I’ll reduce your rent” or “Go out with me and I’ll fix your roof” constitute unlawful sexual harassment under the Fair Housing Act. Just one incident of quid pro quo harassment can constitute sexual harassment. It is illegal for a housing provider to demand sexual favors in exchange for housing, rent reduction, or for making repairs. An unwelcome request or demand may constitute quid pro quo harassment even if the individual acquiesces to the request or demand.
Hostile Environment Harassment involves subjecting a person to unwelcome conduct that is sufficiently severe or pervasive such that it interferes with or deprives the person of the right to use and enjoy the housing. Hostile environment harassment does not require a change in the economic benefits, terms, or conditions of the housing-related services transaction. Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists.
It is unlawful for a housing provider to create or allow a hostile environment. Unwelcome offensive or sexual conduct, remarks of a sexual nature, or unwelcome touching by a landlord or a landlord’s employee, constitute a hostile environment and are unlawful. Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists.
Similarly, a single incident of harassment because of race, color, national origin, religion, sex, familial status, LGBTQ+ status, and age (over 40), or disability may constitute a discriminatory housing practice, where the incident is sufficiently severe to create a hostile environment or evidences a quid pro quo. Harassment can be written, verbal, or other types of conduct, and it does not require physical contact. Hostile environment harassment does not require a change in the economic benefits, terms, or conditions of the housing-related services transaction. Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists.
Not only does a landlord or other covered entity have liability for its own conduct, you may also be held liable for:
- Failing to take prompt action to correct and end discriminatory housing practice by its employee or agent, where the housing provider knew or should have known of the discriminatory conduct;
- Vicarious liability for a discriminatory housing practice by its agent or employee, regardless of whether or not the housing provider knew or should have known of the discriminatory housing practice; and
- Failing to take prompt action to correct and end a discriminatory housing practice by a third party, where the housing provider knew or should have known of the conduct and had the power to correct it.
If you employ property managers or others such as maintenance personnel, you need to make sure you have done your absolute best to shield yourself from liability should your employee purposefully or inadvertently engage in discriminatory behavior.You need solid anti-discrimination policies and training on fair housing for all employees or agents to make sure they fully understand and abide by all fair housing laws. Hiring an independent management company might reduce your liability in that many independent management companies are responsible for their employee’s actions.
You could be held legally liable for the actions of your property manager or employee who refuses to rent to a qualified tenant due to a discriminatory reason, sexually harasses a tenant, or provides differential treatment to a tenant due to a discriminatory reason. Due to the liability posed to you, be mindful in hiring and make sure that your employees and contractors are well versed in fair housing law. Check to see if your insurance policy covers illegal act(s) by third parties acting on your behalf. Listen to your tenants and take their complaints about management seriously.
Avoiding Harassment Claims
- Adopt a non-discrimination and sexual harassment policy for all employees, agents, and tenants.
- Ensure that any employees, agents, and tenants are familiar with the non-discrimination and sexual harassment policy and understand the consequences for violating the policy.
- Take all allegations seriously and take actions to stop harassment from occurring.
- Do not retaliate against anyone who reports harassment or makes a complaint of harassment.
- Do not allow racial slurs, jokes, or comments.
- Do not allow the use of threatening words or images to engage in ethnic intimidation.
- Do not permit comments about people with disabilities.