Issue link: https://read.dmtmag.com/i/743328
NOVEMBER 2016 20 THE JOURNAL COMMUNITY LAW BY RYAN EGAN Handling HUD's New Harassment Rules: What To Know and What To Do On October 14, 2016 a new rule on work- place harassment takes effect. The rule being implemented by the U.S. Department of Housing and Urban Development ("HUD") prohibits Communities and Park owners from "quid pro quo harassment" and "hostile envi- ronment harassment" within the housing con- text. HUD's new rule also expands a Community's potential liability exposure be- cause it provides for both "direct liability" and "vicarious liability" for all violations under the Fair Housing Act. The following is a brief overview of HUD's new harassment stan- dards, with some rec- ommendations so Communities and Park owners can protect themselves against po- tential claims. HUD's final rule is entitled Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Hous- ing Practices under the Fair Housing Act. HUD provides the actual standards that HUD says should be used for assessing potential ha- rassment claims under the Fair Housing Act. One of HUD's stated goals is for these standards to apply to Fair Housing harassment claims brought both in ad- ministrative adjudications and in federal and state courts to ensure uniform treatment. The Fair Housing Act (42 U.S.C. ยงยง 3601 et. seq.)("Act") already prohibits harassment and discrimination in the availability and en- joyment of housing and housing-related serv- ices, facilities, and transactions because of race, color, national origin, religion, sex, dis- ability and familial status. However, no actual standards have ever been implemented regard- ing harassment claims under the Act. As a re- sult, Courts were left to analyze fair housing harassment claims using the same standard as employment harassment claims. HUD's final rule aims to fix that problem and includes a few notable provisions. First, HUD now defines "quid pro quo harassment" and "hostile environment harassment" under the Fair Housing Act. Sec- ond, HUD provides standards for assessing claims under each type of. Third, and perhaps most significantly, HUD's new rule seeks to create both direct and vicarious liability for housing providers who violate the Act. What Is "Quid Pro Quo" and "Hostile Environment" Harassment? "Quid pro quo harass- ment" is "an unwelcome request or demand to en- gage in conduct where submission to the request or demand, either ex- plicitly or implicitly, is made a condition related to" the availability and enjoyment of housing and housing-related serv- ices, facilities, and transaction. Conduct amounting to harassment need not include physical contact, but may be verbal or written. The focus is on "unwelcome" since a person can file a claim for harassment even if they complied with the unwelcome demand or request. "Hostile environment harassment" is unwel- come conduct that is sufficiently "severe or per- vasive as to interfere with the availability and enjoyment of housing and housing-related serv- ices, facilities, and transactions." According to HUD, a hostile environment harassment viola- tion requires proof of the following: (1) A per- son was subjected to unwelcome spoken, written, or physical conduct; (2) the conduct was because of a protected characteristic; (3) and the conduct was, considering the totality of the circumstances, sufficiently severe or per- vasive as to interfere with or deprive the victim of his or her right to use and enjoy the housing or to exercise other rights protected by the Act. Courts will examine multiple factors, including the nature of the conduct, the context of any alleged incident, the severity, scope, fre- quency, duration, and location of the conduct, as well as the relationships of the persons in- volved. Communities Beware - Liability Is Broad! HUD's rule makes clear that even a single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is suffi- ciently severe to create a hostile environment, or evidences a quid pro quo. Something as simple as a resident complaint in a letter or tele- phone call would be enough to satisfy the "should have known" standard, so Communi- ties need to remain attentive to potential issues and handle complaints in a timely manner. A Community or Park Owner's potential li- ability for a violation under HUD's new rule is significant. A Community or Park Owner faces direct liability for "failing to take prompt action to correct and end a discriminatory housing practice by that person's employee or agent, where the person knew or should have known of the discriminatory conduct." A housing provider could even face direct li- ability for a discriminatory housing practice by a third-party (a non-employee and non-agent) Conduct amounting to harassment need not include physical con- tact, but may be verbal or written. The focus is on "unwelcome" since a person can file a claim for harassment even if they complied with the unwelcome demand or request.