HUD Publishes Final Fair Housing Harassment Rule

HUD published a final rule amending its fair housing regulations in order to protect individuals who experience harassment in housing. The courts and HUD have long considered harassment based on race, color, national origin, religion, sex, family status, and disability (the “protected classes”) to be prohibited under the Fair Housing Act. Standards for assessing harassment claims, however, had not been formalized in regulation. To address this lack of standards, the rule adds to the existing regulation a definition the terms “quid pro quo” (“this for that”) harassment and “hostile environment” harassment, examples of such harassment, specifics about how HUD would evaluate complaints, and clarified standards for “direct liability.”

In 1989, HUD issued fair housing regulations (24 CFR part 100) that generally addressed discriminatory conduct in housing. Those regulations include examples of discriminatory housing practices that have been interpreted to cover quid pro quo sexual harassment and hostile environmental harassment in general, but did not define them. Proposed amendments to these regulations were published on October 21, 2015 (see Memo, 11/2/15). NLIHC’s written comments expressed strong support for the proposed rule.

The definition of quid pro quo harassment is not changed from the proposed rule.  The definition, in new Section 100.600(a)(1), states:

“Quid pro quo harassment refers to an unwelcome request or demand to engage in conduct where submission to the request or demand, either explicitly or implicitly, is made a condition related to: the sale, rental, or availability of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision of services or facilities in connection with the sale or rental; or the availability, terms, or conditions of a residential real estate-related transaction. An unwelcome request or demand may constitute quid pro quo harassment even if a person acquiesces in the unwelcome request or demand.”

The definition of hostile environment harassment is also unchanged from the proposed rule. The definition, in new Section 100.600(a)(2), states:

“Hostile environment harassment refers to unwelcome conduct that is sufficiently severe or pervasive as to interfere with: the availability, sale, rental, or use or enjoyment of a dwelling; the terms, conditions, or privileges of the sale or rental, or the provision or enjoyment of services or facilities in connection with the sale or rental; or the availability, terms, or conditions of a residential real estate-related transaction. Hostile environment harassment does not require a change in the economic benefits, terms, or conditions of the dwelling or housing-related services or facilities, or of the residential real-estate transaction.”

As with the proposed rule, whether hostile environment harassment exists depends upon “the totality of the circumstances.” Factors to be considered regarding “the totality of the circumstances” include the nature of the conduct; the context in which the incident(s) occurred; the severity, scope, frequency, duration, and location of the conduct; and the relationships of the persons involved.

In response to public comments, the final rule makes five changes, mostly re-wording proposed text to minimize confusion or to add emphasis.

The final rule clarifies a provision pertaining to the totality of the circumstances related to evidence of psychological or physical harm. It now reads: “Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists. Evidence of psychological or physical harm may, however, be relevant in determining whether a hostile environment existed and, if so, the amount of damages to which an aggrieved person may be entitled.”

The final rule adds a consideration to weigh regarding the totality of the circumstances: “Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person’s position.”

Pertaining to both hostile environment harassment and quid pro quo harassment, the final rule rewords a provision regarding the number of incidents to consider. In Section 100.600(c), the final rule clarifies that a single incident may constitute a discriminatory housing practice if the incident is sufficiently severe to create a hostile environment or provides evidence of a quid pro quo.

The existing fair housing regulations describe conduct that is unlawful under the Fair Housing Act (Section 100.400). The final rule adds a provision not in the proposed rule, Section 110.400(c)(6), prohibiting retaliation against anyone because they reported a discriminatory housing practice to a housing provider or other authority.

The fifth change relates to direct liability for discriminatory housing practices. The proposed rule intended to clarify standards for liability based on traditional legal principles of tort liability. One of three ways a person could be directly liable is if that person failed to take prompt action to correct and end harassment by a third party when the person knew or should have known of the harassment - for example, a management company staff person who knew of a resident harassing another resident. The final rule re-words the language of the proposed rule by adding that in order to be directly liable, the accused person must have the power to correct the actions of the third party.

Comments by NLIHC and other advocates asked HUD to define harassment because of sex to include harassment based on sexual orientation, gender identity, or sex stereotyping. In the preamble to the final rule, “HUD reaffirms its view that under the Fair Housing Act, discrimination based on gender identity is sex discrimination. Accordingly, quid pro quo or hostile environment harassment in housing because of a person’s gender identity is indistinguishable from harassment because of sex.” The text of the rule itself is not changed.

The preamble continues, less categorically, noting that in a 2010 memorandum HUD interpreted the Fair Housing Act’s prohibition on sex discrimination to include discrimination related to an individual’s sexual orientation where evidence establishes that the discrimination is based on sex stereotypes.

NLIHC and other advocates asked that the preamble to the final rule include additional discussion of unwelcome conduct directed against lesbian, gay, bisexual, and transgender people, as well as of unwelcome conduct based on a person’s actual or perceived sexual orientation or gender identity. Beyond sexual harassment, NLIHC and other advocates also recommended the preamble to the final rule include examples of potentially unwelcome conduct based on national origin, such as sustained hostility against people with limited English proficiency. NLIHC also requested examples of harassment on the basis of disability. HUD declined to add such examples in the preamble to the final rule, retaining the examples contained in the proposed rule.

The final rule is in the Federal Register at: